Summary: The Council was at fault for the delay in issuing Miss X’s child, Y’s, Education, Health and Care Plan. The Council has agreed to apologise to Miss X and make a payment to acknowledge the distress, frustration and uncertainty this caused.

The complaint

1. Miss X complained the Council delayed carrying out an Education, Health and Care (EHC) needs assessment and in issuing a final EHC Plan for her child Y. Miss X says that Y has missed out on education and this has caused her distress and frustration and affected her own education.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. 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)
6. 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

7. I have investigated what happened from when Miss X requested an EHC needs assessment in February 2025 until the Council issued the final EHC Plan in late January 2026.

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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. I gave Miss X and the Council an opportunity to comment on a draft of my decision. I considered any comments before making a final decision.

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What I found

Compulsory school age

10. The Education Act 1996 states a child reaches compulsory school age on the prescribed day following his or her fifth birthday. The prescribed days are 31 December, 31 March and 31 August.

Special educational needs

11. 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. Section F sets out the special educational provision needed by the child or the young person. Section I sets out the name and/or type of placement. 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. 
12. 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.

13. 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). 
14. The council has a duty to make sure the child 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)  

What happened

15. The following is a summary of the key events relevant to this complaint.
16. Miss X’s child Y has a diagnosis of autism and a learning disability. Y is non-verbal. Y attended a mainstream nursery for 30 minutes a day with one-to-one support. Miss X requested a special educational needs assessment in February 2025. The Council agreed to assess Y in late March 2025.
17. In mid-June 2025, Miss X complained to the Council about the delay in assessing Y. The Council responded in early July. It said it had been unable to allocate an Educational Psychologist (EP) to conduct an assessment. It was taking action to secure additional resources within the EP Service but would be unable to undertake Y’s assessment until the autumn term. It said it would work with the nursery to mitigate any costs or access to the nursery whilst it concluded the EHC Plan. Y has not attended any educational setting since September 2025.
18. The Council received the EP advice in late October 2025. It issued Y’s final EHC Plan in late January 2026. It named specialist as the type of school. It did not name a particular school. Section F of the Plan stated Y required one to one supervision at all times.

Findings

19. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council should have issued Y’s final EHC Plan within 20 weeks from the date Miss X requested a needs assessment. The Council decided to assess Y within six weeks which is line with the code of guidance.
20. There is a national shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. The Council should have ensured it received EP advice within six weeks. It took just under 30 weeks to receive this advice. The Council has not met these timescales due to the shortage of Educational Psychologists and the increased demand for EHC needs assessments. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Y’s EHC needs assessment is fault (service failure).
21. I cannot say whether the delay that occurred before the EP gave their advice in October 2025 meant Y lost out on special educational provision. This is because the EP advice reflected Y’s needs at the time of the assessment, not necessarily as they would have been when it was originally due. However, the delays in receiving the EP advice caused Miss X frustration, distress and uncertainty.
22. Once the Council received the updated EP advice in October, it should have issued Z’s final EHC Plan within around six to eight weeks, so by mid December, based on the remaining actions needed before finalising the Plan set out in the Code. It took the Council fourteen weeks to issue the final EHC Plan. This was too long and was fault.
23. The EHC Plan issued in late January is not materially different from what it would have been had it been issued in mid December 2025 if it had not been for that second period of delay. Y was not of compulsory school age until January 2026 and the Council did not have a duty to provide any alternative education (section 19 Education Act 1996). However, once an EHC Plan is issued the Council is under a non-delegable duty to secure the SEN provision within the Plan.
24. The delay in finalising the Plan meant Y missed out on special educational provision they would otherwise have been entitled to during this period. I cannot say that but for that delay the Council would have been able to identify and name a specialist placement any sooner, or comment on what support the Council would have provided in the meantime. However, this delay caused Miss X uncertainty over whether Y may have received support and the Council may have been able to find a suitable specialist place sooner.
25. Following separate cases we investigated in late 2025, the Council carried out whole team training as part of its actions to improve timeliness across the SEN service. It also provided us with a copy of its SEND improvement plan. This includes actions to ensure it recognises special educational need at the earliest opportunity within the early years phase, to clear its backlog of EHC needs assessments and to recruit EPs. I have therefore not considered it necessary to make any service improvement recommendations. We will continue to monitor the Council’s performance through our casework.

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Agreed Action

26. Within one month of the final decision the Council has agreed to:
1. apologise to Miss X for the distress, frustration and delayed appeal rights caused by the delay in issuing Y’s EHC Plan. 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.
2. Pay Miss X £1000 to acknowledge the distress, frustration and uncertainty caused by the delay in carrying out an EP assessment of Z and the further delay in finalising the EHC Plan once it had received the EP report.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman