Summary: Mrs X complains the Council delayed in completing the Education, Health and Care Needs Assessment for her daughter, Y. Mrs X also says Y has been out of education since 2023. Mrs X says this has caused her family a great deal of distress and has had financial implications. We have found fault in the actions of the Council for failing to complete the Education, Health and Care Needs Assessment process within statutory timescales. The Council has agreed to write to Mrs X to apologise and pay a financial payment.

The complaint

1. Mrs X complains the Council delayed in completing the Education, Health and Care Needs Assessment for her daughter, Y. Mrs X also says Y has been out of education since 2023.
2. Mrs X says this has caused her family a great deal of distress and has had financial implications.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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.
6. 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)
7. 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 have and have not investigated

8. I have not investigated matters after October 2025 when Y’s EHC Plan was issued. Mrs X has appealed to the tribunal and matters about placement and provision are linked to the appeal.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

11. 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. 
• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.

Education Health and Care (EHC) Plans

12. 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.
13. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

14. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

SEND tribunal

15. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
16. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.

Alternative provision

17. 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.
18. 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)

What happened

19. Mrs X says her daughter Y stopped attending school in September 2023.
20. Y’s school put a plan in place for attendance and wellbeing for her in January 2024 which included access to online education, a regulation room, mentoring and supported breaks and lunch times.
21. Mrs X posted a EHCNA request form and supporting documentation to the Council in late April 2024.
22. The Council received a medical referral to the Education Access Team in late April 2024 and contacted Y’s school in May 2024 to ask for some information.
23. The Council held a meeting in mid-June 2024 following the medical referral and decided it would put three hours of tuition in place for Y in her home.
24. Mrs X emailed the Council in mid-June 2024 to ask if it received the EHCNA paperwork in April and resent the paperwork. The Council checked internally and could not locate the EHCNA from April.
25. The Council contacted Mrs X in mid-July 2024 and said it agreed to assess Y for an EHC Plan. The Council explained there was a shortage of Educational Psychologists (EP)’s and that this may cause a delay.
26. The Council completed a review of the educational provision Y was receiving in January 2025. The meeting notes say the Council agreed that three hours of tutoring was the maximum Y could tolerate.
27. The Council completed a further review of Y’s educational provision in early March 2025 and again in late March and reviewed the plan in place with the school. The notes record that Y’s tutor said she was leaving the tutoring provider in the summer but had identified a potential new tutor.
28. The Council held a further meeting in late April 2025 regarding Y’s educational provision and again identified another possible tutor.
29. Mrs X raised a complaint in early June 2025 about the delays in completing Y’s EHCNA and lack of provision.
30. The Council responded to the complaint in mid-June 2025 and said it apologised with the delay in completing Y’s EHCNA which was due to a lack of EP’s. It also said Y was receiving tuition in line with its section 19 duties.
31. The Council held a further meeting regarding Y’s educational provision in mid-June. The notes record Y was upset that her tutor had left and was not accessing tutoring at that time. The notes also record the Council had discussed how to move forward with this and had located further tutors with similar interests to Y and had said she could move hubs if she was comfortable doing so.
32. The Council allocated an EP to Y’s case in early July 2025 and after receiving their advice, the Council issued a proposed EHC Plan in early September 2025.
33. Mrs X requested a meeting about the content of the proposed plan in September 2025 as she was unhappy.
34. The Council allocated a new tutor to Y in around late September/early October 2025 and issued Y’s final EHC Plan in mid-October 2025.
35. Mrs X raised an appeal with the tribunal in November 2025.

Analysis

Education Health and Care Needs Assessments (EHCNA)

36. The Council received Mrs X’s request for an EHCNA for Y in mid-June 2024. I appreciate that Mrs X posted this in April 2024, but the Council has no record of receiving it at that time.
37. The Council should have completed Y’s EHCNA process by the end of October 2024 but did not do so until mid-October 2025. This is fault and has caused Mrs X and her family distress and frustration. There has also been a delay in Mrs X gaining any appeal rights.
38. In response to our enquiries, the Council has suggested a remedy of around £100 a month to recognise the frustration and distress caused by the delay in issuing the EHC Plan. This equates to £1,200 and is in line with our guidance on remedies.

Alternative provision

39. The Council were aware that Y was not consistently attending school in April 2024. The Council asked for further information from the school in May 2024 and had a meeting and agreed to put tutoring in place in June 2024. The Council agreed tutoring at a level that Y was able to tolerate.
40. The provision remained in place and Y accessed this until the tutor left. After this time the Council worked to locate a tutor Y was happy with. I can see from the meetings the Council had suggested different tutors. This process was not completed until late September/early October 2025.
41. The Council put tutoring in place for Y when it became aware that she was not attending school and this remained in place. I have not found fault in the actions of the Council.

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Action

42. Within four weeks, the Council should:

• Write to Mrs X and apologise for the distress and frustration caused by the faults identified. 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.
• Pay Mrs X £1,200 to recognize the distress and frustration caused by the delay in issuing the EHC Plan.

43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman