Summary: Ms D complained the Council failed to adhere to the statutory timescales for the Education, Health and Care need assessment process for her child (X). She said, as a result, they experienced distress and X had a loss of education. The Council accepted it caused a service failure as it was responsible for the delay due to a shortage of educational psychologists. The Council agreed to apologise and provide a proportionate remedy to acknowledge the injustice this caused. However, we could not say the Council’s delay caused X a loss of education.

The complaint

1. The complainant, Ms D, complained the Council failed to adhere to the statutory timescales for the Education, Health and Care (EHC) plan process for her child (X), who was going into post-16 education.
2. Ms D said, as a result, X is out of school and was not able to pursue her A Levels, which impacted her mental health. She also said she had costs to provide therapeutical support for X.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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What I have and have not investigated

9. I have investigated Ms D’s complaint about the Council’s handling of the EHC need assessment process for X since June 2024, and how it considered and supported X’s child not in education, employment, or training from September 2024.
10. I have not investigated:
• Ms D’s initial request for an EHC needs assessment for X in March 2024 as the Council’s refusal carried appeal rights;
• any steps or action which may have been expected from college providers which Ms D approached. This is because we cannot investigate issues around what happens in schools; or
• any delays in arranging education after the Council completed X’s EHC needs assessment and issued the final EHC plan in January 2026.

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How I considered this complaint

11. I considered evidence provided by Ms D and the Council as well as relevant law, policy and guidance.
12. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Relevant law and guidance

Education, Health and Care plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);

Alternative provision

16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
18. Compulsory school age ends if you have turned 16 by the end of the academic years summer holidays.

Post-16 education and training

19. The Education and Skills Act 2008 and the Apprenticeships, Skills, Children and Learning Act 2009 sets out what should happen when a young person reaches the age of 16 and is no longer of compulsory school age.
20. A local education authority:
• may secure the provision for their area of full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of 19;
• must ensure its functions are (so far as they are capable of being exercised, exercised so as to promote the effective participation in education or training of persons belonging to its area;
• must make arrangements to enable it to establish the identity of persons in its area who are not participating in education or training;
• are expected to liaise with education providers to identify children under the age of 16 who are at risk of not participating post-16 and for intensive support to be provided to remedy the situation. This is particularly important in relation to children with special educational needs and disabilities (SEND) who are significantly less likely to participate in post-16 in comparison to their peers without SEND.
21. Every young person who reaches the age of 16 or 17 years old in any given academic year is entitled to an offer of a suitable place, by the end of September, to continue in education or training the following year. However, there is not the same duties on the local authority to offer the young person a place to continue their education or training. The duty is on the young person to apply to relevant education or training providers in order to obtain a place.
22. The SEND Code of Practice 2015 sets out requirements for post-16 institutions. This makes it clear it is the colleges which has the duty to work with young people with SEND, who does not have an EHC plan, to support their needs.

What happened

23. X was attending a mainstream school and completed her GCSE’s in Summer 2024. She had for some time struggled with school due to significant anxiety in such environments. She was on a reduced timetable and worked mainly outside the classroom.
24. Ms D asked the Council to complete an EHC needs assessment for X in June 2024 when she had finished her exams. She said she had approached some colleges which had told her they could not meet X’s needs without an EHC plan. X was no longer of compulsory school age.
25. The Council subsequently agreed to complete the needs assessment for X.
26. Ms D complained to the Council in 2025. She said it had failed to adhere to the statutory timescales. As a result, X had been without access to an education which met her needs, which had impacted her mental health. She also said she had not had confirmation X had been added to a list of vulnerable people.
27. The Council apologised to Ms D for the delays in its EHC needs assessment process and upheld her complaint. It explained:
• this was due to a shortage of educational psychologists for which the Council has a SEND Improvement plan to reduce backlogs;
• It would complete a needs assessment for X and would allocate an educational psychologist when able to do so;
• It confirmed it was aware X was vulnerable. However, as she was over compulsory school age. Its Education Access Team could not support her. However, its coordinator would continue to provide information about flexible interim activities and organisations that may be able to support some purpose, motivation and engagement for X; and
• Informed Ms D about the Special Educational Needs and Disability Information, Advice and Support Service (SENDIASS).
28. Ms D asked the Ombudsman to consider her complaint. She said X had a right to an education, but as a result of the Council’s delays, she has not been able to pursue her education.
29. Ms D confirmed the Council had made calls to her to confirm whether X was in education or training. It had suggested apprenticeships. Ms D told the Council X does not want an apprenticeship, but an education. This should be a tutor in the home and not in a classroom or the community. She had approached colleges, but they did not provide an offer to X as she would need an EHC plan for such support to be put in place.
30. In response to our enquiries the Council has confirmed an educational psychologist assessed X in November 2025, and it issued her final EHC plan in January 2026. It also confirmed it would accept a remedy to acknowledge the delays caused in the EHC plan process in line with the Ombudsman’s Guidance on Remedies.

Analysis and findings

Education, Health and Care needs assessment delays

31. The Council has accepted it caused delays in completing X’s EHC needs assessment. It apologised to Ms D and explained the reasons for the delays.
32. I agree the Council caused delay in adhering to the statutory timescales for the EHC needs assessment process. This is because:
• Ms D applied for an EHC plan for X in June 2024, which the Council agreed to assess.
• the Council should have issued its decision whether to complete an EHC plan for X in October 2024; and
• its final EHC plan should have been issued in November 2024, as the Council later went on to issue one.
33. The delay was a service failure due to its shortage of educational psychologists and high demand on its service. In response to our findings in previous cases, the Council shared its action plan of its service improvements. We are satisfied that it has a plan in place to address the lack of specialist advice. I have therefore not made further recommendations relating to this matter.
34. I do however accept the Council’s delays caused Ms D and X frustration and uncertainty and that is injustice that remains unremedied. The Council has confirmed it will agree to a remedy in line with our published guidance. I am satisfied this is appropriate in this case.

Did the Council’s delays cause X a loss of education?

35. I found the Council was not under a duty to offer or secure X a place in a college or other educational institution. This is because:
• X was no longer of compulsory school age from September 2024. The Council was therefore not under a duty to provide alternative provision such as tuition or other education to X;
• the responsibility for applying to colleges was on Ms D and X, and the Council had a local offer of available education and learning providers which was shared with Ms D;
• the responsibility to provide X with support to access education at a college or other institutions, was for the learning provider. Such providers can apply for additional funding to support individuals to access their education, and any refusal can be appealed to the college; and
• X did not have an EHC plan at the time which may have listed the college placement she should attend and the support she should receive.
36. There was a duty on the Council to consider and provide support to Ms D and X in their process to find a college or other learning opportunities. However, I found the Council registered X as a vulnerable person, spoke with Ms D to provide options for X as a young person not in employment, education, or training, and directed her to the SENDIASS service for advice. This was what was expected of the Council.
37. I acknowledge the Council had not completed X’s EHC needs assessment process and issued an EHC plan. However, I cannot say this was the cause of her loss of education, even though X’s final EHC plan has since been issued. This is because I cannot say the needs assessment would have reached the same conclusions if the delays had not occurred, and the plan should take account of the lost provision in how to support X going forward.

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Action

38. To remedy the injustice the Council caused to Ms D and X, the Council should, within one month of the final decision:
1. apologise in writing to Ms D and X to acknowledge the injustice its service failure caused them;

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

2. pay Ms D, or X, £1,400 to recognise the distress, frustration, and uncertainty caused by the 14-month delay in completing X’s EHC needs assessment and issuing her final EHC plan. This is based on a £100 per month remedy due to a shortage of educational psychologists.
2. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I have completed my investigation with a finding of a service failure which caused Ms D and X distress, frustration and uncertainty.

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Investigator's decision on behalf of the Ombudsman