Summary: Miss X complained about the Council’s failure to meet the statutory timescales when issuing and reviewing her son’s (Y) Education Health and Care Plan. We found fault with the Council. This fault caused injustice to Miss X. The Council has already offered some suitable remedies. The Council has also agreed to make a symbolic payment to Miss X to recognise her distress.

The complaint

1. Miss X complains the Council failed to comply with the statutory timescales when issuing and reviewing her son’s (Y) Education, Health and Care (EHC) Plan.
2. Miss X says the Council’s failings caused her distress, uncertainly and financial loss.

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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. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
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 courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. 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.
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
9. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
10. 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

11. I have not investigated whether the School could meet Y’s needs and was suitable for him. This is because if Miss X had not been happy with the school named for Y in his EHC Plan of December 2024, she could have appealed. As pointed out in paragraph five we would normally not investigate anything that can be appealed to the Tribunal. For the same reason I have not investigated whether Section B and F correctly described Y’s needs and special educational provision needed to meet them.
12. As Miss X appealed Sections B, F and I of Y’s EHC Plan issued in June 2025, we cannot investigate suitability of Y’s school placement named in Section I from June 2025.
13. Miss X raised two complaints with the Council – in September 2024 and April 2025. I have decided to investigate them both as they are in time and the Council has had an opportunity to respond to them.
14. I have not investigated anything that happened after mid-May 2025, when the Council provided its final response to Miss X’s second complaint. This is because any later issues would need to be raised with the Council first.

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How I considered this complaint

15. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
16. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

EHC Plan timescales

17. 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:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• where councils decide it is not necessary to issue an EHC Plan for a child, they should notify the parents within 16 weeks from the date they received request for an EHC needs assessment;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

EHC Plan review

18. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

What happened

Background

19. In 2023/2024 Y was in Year 4 of a community primary school (the School).

First complaint

20. At the end of April 2024 the Council received a request to carry out Y’s EHC needs assessment. In the second week of July 2024 an Educational Psychologist prepared her statutory advice for Y.
21. At the beginning of August the Council told Miss X it would assess Y’s EHC needs.
22. In mid-September 2024 Miss X complained about the Council’s delay. Three days later the Council explained its reasons for the delay in the EHC Plan process. Miss X asked the Council to escalate her complaint to stage two. She said the School could not put in place full-time individual support for Y without an EHC Plan.
23. The Council sent its stage one response to Miss X in the second week of October 2024. The Council recognised it had failed to adhere to the statutory timescales when issuing Y’s EHC Plan. It explained it had happened because a member of staff left their job.
24. A month later the Council upheld Miss X’s complaint at stage two.
25. In mid-December 2024 the Council issued Y’s final EHC Plan.

Second complaint

26. In view of Y’s increasing difficulties at school, in the third week of March the Council carried out an emergency review meeting for Y’s EHC Plan. Miss X asked the Council to name a special school for Y.
27. Miss X complained a month later. She said the Council had failed to update her on its position and should have sent its decision by mid-April 2025.
28. At the end of April the Council told Miss X it would amend Y’s EHC Plan. The Council did not agree to change Y’s school placement, but said it would consult with the special schools named by Miss X.
29. In mid-May the Council upheld Miss X’s complaint about the delay in sending its decision. It also recognised it had erred by issuing a final EHC Plan before completing the process. The Council apologised and offered £100 for causing Miss X stress and anxiety. It also reverted Y’s EHC Plan back to a draft version and consulted with the schools requested by Miss X.
30. The Council issued Y’s final post-review EHC Plan in the second part of June 2025, six days after the due date. The Council amended mainly Section A of Y’s plan, with no significant changes to Sections B and F.
31. Miss X appealed Sections B, F and I of Y’s EHC Plan.

Analysis

First complaint

32. Having received a request for Y’s EHC needs assessment at the end of April 2024, the Council should have issued his final EHC Plan in mid-September 2024. It did so in mid-December 2024. The delay of three months is fault.
33. The Council’s fault did not cause injustice to Y, as having an EHC Plan did not improve his engagement with the School. Miss X said at the beginning of 2025 Y’s difficulties were increasing, which led to her asking for an emergency review. Even if the Council had issued Y’s EHC Plan on time it is unlikely Y’s school difficulties would have reduced.
34. The Council fault caused injustice to Miss X. She was upset by the delay especially in view of Y’s difficulties at school. She expected that arranging Y’s support in line with his EHC Plan would help him to engage with learning. Miss X remained uncertain whether arranging special educational provision for Y in accordance with an EHC Plan sooner would have prevented worsening of his behaviour at school.
35. The Council accepted its fault and apologised. It failed, however, to offer symbolic payment to recognise Miss X’s distress.

Second complaint

36. Following the emergency review meeting in March 2025, the Council decided to amend Y’s EHC Plan. It had 12 weeks to complete the process.
37. During a post-review process the Council failed by:
• issuing a final EHC Plan before it had carried out all school consultations;
• issuing a final EHC Plan six days after the statutory deadline.
38. The Council’s failings were fault. They did not, however, cause injustice to Y or Miss X. This is because:
• once the Council realised it had erred by issuing Y’s final EHC Plan before consulting the schools Miss X asked for, it reverted the plan into draft and completed the process without too much delay;
• the delay of a few days in finalising Y’s post-review EHC Plan was not significant enough to cause injustice to Miss X;
• majority of the amendments made to Y’s EHC Plan following the emergency review were in Section A, therefore would not have affected the support arrangements for him at school.
39. The Council apologised for the delay and an error in the process and offered Miss X £100 in recognition of her distress.

Service improvement

40. Since August 2024 the Council has committed to recruiting additional officers within the Special Educational Needs and Educational Psychology teams. Additional staffing resource is meant to allow the Council to work towards meeting timescales. We will be monitoring the effectiveness of the Council’s actions through our casework.

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Action

41. To remedy the injustice caused by the fault identified, we recommend the Council pay Miss X within four weeks of the final decision £200 to recognise the distress caused to her by the Council’s delay in issuing Y’s final EHC Plan in December 2024. The Council should provide us with evidence it has done this.

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Decision

42. I find fault causing injustice. The Council has accepted my recommendation, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman