Summary: Mr B complained that the Council delayed issuing his daughter’s Education, Health and Care (EHC) Plan. We find that the Council failed to issue his daughter’s EHC Plan within statutory timescales. The Council has agreed to make a symbolic payment to Mr B to recognise the impact of the delay.

The complaint

1. Mr B complains that the Council failed to issue his daughter’s EHC Plan within the statutory timescales. As a result, his daughter’s needs have been unmet for longer than necessary and his right to appeal to the Tribunal has been delayed.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. The courts have established that if someone has appealed to the Tribunal, 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)
5. This means that we cannot investigate a lack of special educational provision if we decide it is a consequence of a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan.
6. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
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)
8. 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

9. I have investigated Mr B’s complaints about the EHC process between October 2024 and August 2025. I have not investigated any complaints about matters which have arisen since August 2025, as they were raised after the complaint was brought to us, and because we have no jurisdiction to investigate matters which have been appealed to the Tribunal.

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How I considered this complaint

10. I considered evidence provided by Mr B’s advocate and the Council, as well as relevant law, policy and guidance.
11. Mr B’s advocate and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

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. If the tribunal orders the council to carry out an assessment, the council must tell the child's parent (or the young person) within two weeks that it will do the assessment. After the assessment, if the council decides the child or young person needs special educational support, it must send the final plan to the parent or young person as soon as possible, and no later than 14 weeks from the date of the tribunal's order. (SEND Regulation 44)
14. As part of the assessment, councils must gather advice from relevant professionals. (SEND Regulation 6(1)) This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”.

Background and key events

15. K is a child with special educational needs. On 8 October 2024, following an appeal, the Tribunal issued a consent order requiring the Council to secure an EHC needs assessment. At that time, K was in Year 6.
16. The Council wrote to Mr B and his advocate on 22 October 2024 confirming it had started the assessment process. The Council stated that the timeframe for completing the assessment was six weeks but that there may be delay due to pressures on the Educational Psychology (EP) service.
17. Mr B’s advocate asked the Council to rely on an independent EP report from February 2024 to avoid delay. The Council considered this request but decided a further EP assessment was required. The Council confirmed on 14 November 2024 that it would not rely on the independent report because it considered it clinic-based and lacking school-based triangulation.
18. On 4 December 2024, Mr B complained about delays and the requirement for a further EP assessment. He said this would be repetitive and counterproductive and would unnecessarily delay the process. In response, the Council accepted that statutory timescales had been breached but said a further EP assessment was necessary to ensure informed decision-making.
19. Mr B escalated his complaint to stage two in February 2025. He continued to complain about the delay and the impact of a repeated assessment on K. He also complained about a lack of communication about timescales. In the Council’s final complaint response, the Council apologised for the delay but maintained that the additional EP assessment was appropriate. It accepted communication about waiting times could have been better.
20. The Council issued K’s final EHC Plan on 15 August 2025. Mr B is appealing the contents of the sections of the Plan which set out K’s special educational needs and the provision needed to meet those needs, as well as the school named in the Plan.

Analysis

21. Councils must gather advice from relevant professionals as part of the assessment. The Council must not seek further advice if it already has advice which is sufficient for the assessment process. The Council has explained why it did not consider the independent EP report was sufficient. This was a decision it was entitled to reach.
22. Where the Council decides a child needs an EHC Plan following a Tribunal’s order to carry out an assessment, the final plan must be issued within 14 weeks of the Tribunal’s decision, which in this case was 8 October 2024. The final Plan was issued on 15 August 2025, over 44 weeks after the Tribunal’s decision. This delay was fault.
23. The Council has acknowledged that statutory timescales were breached. The Council did not receive the EP report and Occupational Therapy report within the required six-week timeframe, which accounted for most of the delay. However, the Council also took too long to finalise the plan after it received these reports. I cannot say that this further period of delay resulted in K missing any special educational provision because it mainly occurred during the summer holidays, when K was not attending school.
24. Mr B wanted to appeal the school named in the plan but was unable to do so until after the final plan was issued in August 2025, shortly before K was due to start at secondary school. The late issue of the plan frustrated Mr B’s appeal rights and caused K unnecessary distress regarding her transition to secondary school.
25. I have seen no evidence to suggest the Council failed to respond, or delayed responding, to correspondence from Mr B’s advocate. The Council has accepted that it may not have updated Mr B on the dates it expected assessments to take place. It has apologised for this and says that it is working on an effective mechanism to keep parents updated on waiting list and timeframes. I do not consider any further remedy is required for this aspect of the complaint.

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Action

26. The Council has agreed to make the following payments to Mr B within four weeks of my final decision:
• £600 to recognise the uncertainty, avoidable distress and frustration caused by the delay in obtaining advice from an EP.
• £100 to recognise the uncertainty, avoidable distress and frustration caused by the delay in issuing the final plan after it had obtained EP advice.
• £350 to recognise the additional distress caused by the frustration of Mr B’s appeal rights, and its impact on K regarding her transition to secondary school.
27. The Council should provide us with evidence it has complied with the above actions.
28. The Council has recently agreed to develop an action plan setting out how it intends to address the ongoing delays to ensure statutory timeframes are met. I do not consider it necessary to make any further service improvement recommendations.

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Decision

29. I have completed my investigation and uphold Mr B’s complaint. There was fault which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman