Summary: Miss X complained the Council failed to issue her son’s final Education, Health and Care Plan within statutory timescales. She also complained the Council’s communication was poor and it delayed providing the specialist setting in her son’s Education, Health and Care Plan. We find the Council at fault for its delays in finalising Miss X’s son’s Education, Health and Care Plan. It was also at fault for its delay in finding a specialist setting and for its communication with Miss X. The Council’s faults caused Miss X distress and frustration, and Miss X’s son lost out on special educational provision. The Council has agreed to apologise to Miss X and make a payment to her.

The complaint

1. Miss X complained the Council failed to issue her son’s, Y, final Education, Health and Care (EHC) Plan within statutory timescales. She also complained the Council’s communication was poor and it delayed providing the specialist setting in Y’s EHC Plan.
2. Miss X says the matter has caused distress and upset. Y was left without appropriate support for his needs.

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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 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.
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. 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

Timescales and process for EHC needs assessment

10. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs 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.
• 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);  
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.

11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). Those consulted have a maximum of six weeks to provide the advice. 

What happened

12. Y has special educational needs. The Council received a request to complete an EHC needs assessment for Y in early February 2024 from his mainstream school (School Z).
13. The Council agreed to complete the EHC needs assessment in late February. It asked for advice from professionals.
14. The Council received professional advice in early April.
15. The Council considered Y’s case at its resource allocation panel. It decided Y’s needs would best be met in a special school.
16. The Council sent Y’s draft EHC Plan in mid-June. It sent consultations to schools, including School Z, in late June. It sent an email to Miss X and provided her with an update.
17. School Z responded to the consultation. It said Y was receiving a high level of 1:1 support, and he was often not accessing learning alongside his peers. It also said it could not accommodate the higher than average adult to staff ratio or the total communication environment that was in Y’s draft EHC Plan.
18. The other schools the Council consulted with said they either could not meet Y’s needs, or they could meet Y’s needs, but they did not have any spaces.
19. School Z contacted the Council in November. It said it was struggling with meeting Y’s needs, and he was hurting himself and others daily.
20. The Council issued Y’s final EHC Plan in late November. In section I of the Plan it named School Z and said there would be a transfer to specialist provision when a place became available.
21. The Council agreed to meet with Miss X and School Z in January 2025 to discuss the next steps regarding Y’s placement. However, the officer did not attend the meeting as she was unwell.
22. School Z provided the Council with an update in February. It said Y was struggling and he was spending less time in the classroom. It also said the Council’s learning, communication and interaction (LCI) team had been in touch to offer support, but they had not attended on many occasions. It said it was waiting for a list of alternative provision for Y.
23. The Council responded and provided a list of alternative provision. It said it would email the LCI team to check if they could offer more support.
24. Y started attending alternative provision at an open access play provision twice a week from early March.
25. The Council consulted with an independent special school (School X) for Y in early May.
26. Miss X complained to the Council in May. She said it had named specialist provision in Y’s EHC Plan, but he was still in a mainstream school. She also said its communication was poor. Finally, she said Y was having to access alternative provision for two days per week because he was suffering from dysregulation at School Z.
27. The Council responded to Miss X’s complaint in late May. It said it finalised Y’s EHC Plan outside of statutory timescales. It also said its communication was not acceptable. It apologised for the distress this caused. It said Y had been on the list for a special school since June 2024. It had consulted with special schools, but they could not meet Y’s needs. It said it had started consulting with independent special schools. In the meantime, a specialist teacher continued to support staff at School Z and they provided advice to help maintain Y’s placement. It said Y was supported by a 1:1 staff member, and he had access to additional learning spaces. It said school staff had observed progress in Y’s development.
28. Miss X chased the Council several times for an update in May and early June. The Council responded and confirmed it referred the case to the allocations panel. Miss X replied and asked when the Council would make a decision. School Z sent two chaser emails when the Council did not respond.
29. The Council updated Y’s EHC Plan in July. It named School X for Y to attend from September onwards.

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Analysis

30. The Council should have issued Y’s final EHC Plan by late June 2024. However, it did not issue the Plan until late November 2024. This is a significant delay and is fault.
31. The Council accepted its communication with Miss X was poor. I agree the Council was at fault. There is little evidence of it providing regular updates to Miss X.
32. In Y’s EHC Plan from November 2024, it named School Z and said Y would transfer to a specialist placement once one was found. Miss X could have appealed this to the Tribunal. However, I have decided it was not reasonable for her to appeal because she agreed with Y attending a specialist placement and she had a reasonable expectation the Council would continue to look for one.
33. The Council consulted with special schools in June 2024. However, it did not consult with any other special schools until May 2025. This significant delay is fault. The Council should have turned its mind to consulting with independent special schools much sooner.
34. The Council’s faults outlined above has caused Miss X distress, upset and uncertainty over Y’s education.
35. The Council’s faults have also caused Y a significant injustice. But for the Council’s fault, Y should have started receiving special educational provision in his EHC Plan from June 2024, rather than from November 2024. However, I acknowledge Y did have access to 1:1 support during this time and School Z had put in place some of the strategies in the EHC Plan before it was issued.
36. School Z contacted the Council several times and explained Y was struggling to access its mainstream environment. Therefore, the Council’s delay in finding a special school for Y had an impact on him and he could not fully access provision.
37. In response to School Z’s concerns, the Council’s LCI team started providing Y with regular support from late February 2025 onwards. Y started attending alternative provision twice a week from March 2025. The reports show Y responded well to this further support. He became less dysregulated and he was more regularly interacting with his peers. He was also completing more work independently. Therefore, while the Council was at fault for not securing a special school for Y from March 2025 to July 2025, I do not consider this caused him a significant injustice because of the additional measures School Z and the Council put in place.
38. In response to my enquiries, the Council confirmed it has increased the size of its special education service since September 2024 to ensure there is capacity to cover all statutory work. It has also reorganised how cases are allocated to its EHC inclusion officers. I am satisfied with the steps the Council is taking to improve its services and therefore I have not recommended any service improvements.

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Action

39. By 10 April 2026 the Council has agreed to:

• Apologise to Miss X.
• Pay Miss X £1,575 to represent the lack of special educational provision for Y from June 2024 to March 2025.

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

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Decision

41. There was fault by the Council, which caused Miss X and Y an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman