Summary: Miss F complained the Council delayed issuing her child’s education, health and care plan and failed to make alternative provision for him. The Council has accepted it delayed issuing the plan, which caused uncertainty and distress. It has agreed to make a payment to Miss F to remedy that injustice. The Council did not have a duty to make alternative provision as Miss F’s child was not compulsory school age.

The complaint

1. Miss F complained that the Council delayed issuing her child’s education, health and care plan and failed to make alternative provision for him while he was out of school. As a result, his education and welfare have suffered.

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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 Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
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 SEND Tribunal in this decision statement.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
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(i), as amended)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

9. I have not investigated or made any findings about events after the issuing of the EHC plan in September 2025. This is because, as set out in paragraph 5, we cannot investigate a lack of special educational provision where a person has the right to appeal, or has appealed, about the provision set out in the EHC plan. The period we cannot investigate starts from the date the appealable decision is made and given to the parents, i.e. the date when the final plan is issued.

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How I considered this complaint

10. I spoke to Miss F about her complaint and considered the information she sent, the Council’s response to our enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the SEND Regulations”)
11. Miss F 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

Relevant law and guidance

Special educational needs

12. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year. (Children and Families Act 2014, section 42)
13. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. Those consulted have a maximum of six weeks to provide the advice. (SEND Regulations 2014, regulation 6(1))
14. Some children and young people will move between local authority areas while they are being assessed for a plan. The new authority in such cases should decide whether it needs to carry out an EHC needs assessment themselves and it must decide whether to undertake an EHC needs assessment if it receives a request from the child’s parent or the young person. (SEND Code of Practice, paragraph 9.162)

Timescales for EHC needs assessment

15. The Code says where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment within six weeks.
16. 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 Ombudsman’s jurisdiction in relation to SEND

17. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
18. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
19. 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)
20. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC plan, or a matter that was, or could have been, part of an appeal to the Tribunal, we cannot investigate a lack of special educational provision, or alternative educational provision.
21. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
22. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

Alternative provision

23. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education at school or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school, or otherwise, may not for any period receive suitable education unless such arrangements are made for them. (Education Act 1996, section 19).
24. Compulsory school age in England starts the term following a child’s fifth birthday. For a child born 1 April – 31 August, school starts at the beginning of the autumn term following their fifth birthday.
25. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

26. I have summarised the key events.
27. Miss F’s son, J, has autism and significant communication and sensory needs. He was at compulsory school age from September 2025.
28. On 9 July 2024, Miss F told the Council that she had moved into its area and her previous local authority had started an EHC needs assessment of J. The previous authority sent its paperwork to the Council on 10 July.
29. The Council agreed to assess J’s EHC needs on 20 August. This meant the final EHC plan should have been issued by 27 November (within 20 weeks of 10 July).
30. J started in early years provision at a mainstream school (“the School”) in September 2024. The educational psychologist’s report should have been submitted to the Council in October but was delayed due to the national shortage of educational psychologists.
31. Miss F complained to the Council on 4 July 2025 that no EHC plan had been issued. She said the School could not meet J’s needs and no interim provision, therapeutic support or specialist consultation had been arranged. She asked the Council to consult with specialist schools.
32. The educational psychologist’s report was sent to the Council on 10 July.
33. The Council responded to the complaint on 21 July. It apologised for the delay in issuing the plan, which had been caused by the delay with the educational psychology assessment. The Council said it was trying to address the shortage of educational psychologists by maximising the existing team’s capacity and contracting additional associate or locum educational psychologists. The Council said the School had had advice from specialist services to help it meet J’s needs.
34. Miss F remained dissatisfied and asked for a specialist school placement to be secured and interim alternative education under section 19 to be arranged if a specialist placement was not in place by September 2025.
35. The Council’s final complaint response was sent on 7 August. It said a draft EHC plan would be issued shortly. It did not have a duty to provide alternative provision under section 19 as J did not reach compulsory school age until 31 August.
36. On 1 September 2025 Miss F said J would not be returning to the School and asked for alternative provision to be put in place.
37. The final EHC plan was issued on 4 September, naming the School. Miss F appealed to the Tribunal.

My findings

38. There was no fault by the Council in not arranging alternative provision for J from September 2024 to 1 September 2025. This is because it did not have a duty to do so as J was not of compulsory school age.
39. As explained in paragraph 8, I have not investigated the provision of alternative education from 4 September 2025 as Miss F had the right to appeal to the Tribunal. I am exercising my discretion not to investigate the period 1 to 3 September, as set out in paragraph 6, because there is not enough evidence of fault or injustice to justify investigating. This is because before putting alternative provision in place, the Council must first decide that it was not reasonably possible for J to access existing suitable schooling. It is likely the Council would have taken some time to consider this. It is also likely that any alternative provision it may have agreed to would not have been in place before 3 September.
40. The Council has accepted it did not meet the statutory deadline for issuing the EHC plan following J’s needs assessment due to the lack of educational psychologists. There was a delay of about nine months. This is service failure which has caused Miss F frustration and uncertainty about what special educational provision could have been made for J from December 2024.
41. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance says, for delay in issuing EHC plans caused by educational psychology shortages, a symbolic payment of £100 for each month of delay is appropriate to recognise the frustration and uncertainty caused, including frustration caused by the delayed right of appeal. This is not intended to remedy any loss of special education support to J as he did not yet have an EHC plan and we cannot guess what that provision would have been had the plan been issued within timescales.
42. In response to my enquiries, the Council offered to make a payment of £950 to remedy this injustice. That is an appropriate remedy in line with our guidance.
43. Miss F told me she was concerned about the Council’s poor communications and that she wanted it to make improvements in its support for all SEND families.
44. I am satisfied that the Council has a plan in place to address the lack of educational psychologists. In response to our findings in a previous case it sent us an action plan of its service improvements. So I make no more service improvement recommendations.

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Action

45. Within a month of my final decision, the Council has agreed to pay Miss F £950 to remedy the uncertainty and frustration caused by the delay in issuing J’s EHC plan.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman