Summary: There was significant service failure resulting in a fifteen-month delay in issuing a final Education, Health and Care Plan. This caused inconvenience and distress. The Council has agreed a symbolic payment to acknowledge the impact of the fault.

The complaint

1. Ms X complains about delay by the Council in completing an Education, Health and Care (EHC) needs assessment for her child, Y. Ms X complains the Council exceeded the statutory twenty-week timetable by fifteen months.
2. Ms X says initially the Council said delay was due to awaiting educational psychology advice, but this was received by the Council in early 2025, and the Plan was not finalised until the Summer.
3. Ms X says the school told her it had applied for the assessment, but this was either not done or the request lost. Ms X says because of this failure she instructed an advocate / representative to assist her, as she had lost confidence in the process.
4. Ms X says the school informed her they could not meet her child’s needs and so Ms X has been home educating since Autumn 2024. Ms X says this is not a voluntary or preferred choice, but a situation she felt forced into because Y could not attend school. Ms X says there was a risk of fines for non-attendance being issued if she did not home educate.
5. Ms X considers if an EHC Plan had been in place sooner, the need to home educate would have been avoided. Ms X says she had hoped her child would return to school once the EHC Plan was in place, but there were no places at any suitable local schools, so they have had to continue home educating.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. 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)
10. 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.
11. 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

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
14. 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 found

What happened

15. Following an injury and traumatic incident in Summer 2023, Y became anxious about attending school and their behaviour changed.
16. Y was also awaiting assessment for autism.
17. The Council received a request for an EHC needs assessment in late 2023 and issued a final EHC Plan in Summer 2025.
18. The Council says Ms X deregistered Y from school in Autumn 2024 to electively home educate (EHE).
19. Ms X complained to the Council about the delay in completing the EHC needs assessment in Spring 2024. The Council said delay was due to unprecedented demand for Educational Psychology (EP) advice. It said there was a national shortage of EP’s which the Ombudsman had highlighted in a public report. The Council said as soon as an EP was assigned to Ms X’s child’s case, they would be in contact to arrange assessment.
20. The Council’s stage two complaint response, in Autumn 2024, said it was working diligently to address the EP issue by actively recruiting additional staff and exploring all possible avenues to improve its processes. The Council anticipated an EP would be assigned in the next four weeks.
21. The Council upheld the complaint and apologised.
22. The Council and Ms X both say the EP advice was provided in early 2025.
23. A draft EHC Plan was issued in Spring 2025 and a final Plan in the Summer. The Plan says Y’s education is provided via elective home education (EHE). The Council’s view following assessment was that Y’s needs could be met in mainstream school. The Plan stated if Y were to attend an education setting, a carefully planned slow transition from EHE would need to be implemented.
24. The Council says Y was EHE throughout the EHC needs assessment period, including after issue of the final Plan. The Council says Ms X confirmed she wished to continue home educating at draft Plan stage, and again in Summer 2025. The Council says Ms X did not seek any financial support from the Council to EHE, or deliver the EHC Plan, and never requested alternative provision or tutoring funded by the Council.
25. The Council says various settings were explored in Spring 2025, but Ms X remained unsure about the type of placement that was appropriate including about whether to continue EHE. The Council confirms consultations with schools were not successful.
26. The Council told us, it proactively explained to Ms X in Summer 2025, if Ms X wished to stop EHE, it would assume responsibility for arranging Y’s education and put in tutoring prior to a gradual reintegration into a school. The Council says Ms X chose to continue EHE while college transition options were explored, including a college pathway for EHE students. The Council says Ms X asked for the EHC Plan to be finalised on the basis she wished to continue EHE.
27. The Council says in Summer 2025, Ms X again confirmed she was exploring college options as she accepted the likelihood of specialist school provision was limited. Ms X has not however appealed the final EHC Plan.
28. The Council says changing parental preference around specialist v mainstream and college v EHE were a contributing factor to the delay after receipt of EP advice until Summer 2025. It says there was active co-production, multiple drafts and advice requests. As Y was EHE, there was no pressing need for the Council to finalise the Plan to secure education. It acknowledges there was some drift between late Spring and Summer 2025.
29. The Council says it recognises Y wished to return to formal education and delay occurred at a critical stage (Year 11 transition planning). However, it also says Y was not without education, as education (including via EHE) was in place during the entire assessment period. No requests for alternative provision were made or declined, and it says it would have acted if EHE ceased.

Relevant law and guidance

EHC Plans

30. A child or young person with special educational needs (SEN) 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. 
31. 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 sixteen 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 twenty weeks (unless certain specific circumstances apply).

32. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an EP. Those consulted have a maximum of six weeks to provide the advice. 
33. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s special educational needs (SEN), the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Alternative provision / s.19 education

34. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child of compulsory school age is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

Elective home education (EHE)

35. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. EHE is distinct from alternative (s.19) education provided by a Council, for example when a child is too ill or otherwise cannot attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs and for delivering the provision in any EHC Plan.
36. Councils have a power, but not a duty, to provide support, for example funding or therapy at home, for EHE children who require special educational provision. The Code states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

Analysis

37. Ms X says there was delay by the school in submitting the request for statutory assessment. Schools are not within our jurisdiction, and we cannot consider any alleged failure by the school. Delay by the school is not fault by the Council. Requests for assessment do not need to be made by a school and can be requested direct by the parent, as happened here in late 2023.
38. The Council has accepted the process took from late 2023 to Summer 2025, when it should have been completed in late Spring 2024. This was excessive delay of fifteen months and was fault.
39. The Ombudsman is aware of service failure linked to capacity of EP’s and has made previous recommendations which led the Council to produce an action plan. The Council has also been subject to a SEND improvement notice following concerns noted by OFSTED with actions to be delivered by Summer 2026.
40. It is apparent that the delay in assigning an EP was responsible for the delay throughout 2024, however there was further delay after the EP provided advice in early 2025, with the final Plan taking over twenty weeks from the date EP advice was received. The Council has acknowledged some drift during this period but also says that it was actively engaged with Ms X in considering placements and working on drafts.
41. Y was withdrawn from school to EHE in Autumn 2024, after the date when Ms X could have expected any final EHC Plan to be in place.
42. Ms X says the current school stated it could not meet need and this was why Y was withdrawn in Autumn 2024 to EHE. I have not seen evidence Ms X asked the Council to consider putting in place alternative provision under s.19; or seen any correspondence with the Council about the decision to withdraw Y to EHE; or seen evidence the Council was asked to intervene to ensure continued attendance at school. Ms X’s expectation of the EHC needs assessment may have been that it would lead to Y being offered a specialist placement, but this was not the outcome; the Council remained of the view Y’s needs could be met via mainstream education. There is also evidence the Council did offer tuition in Summer 2025 if Ms X wanted to stop EHE, but Ms X continued to do so.
43. Ms X has raised with me that she has incurred costs in relation to EHE including exam fees. The legal position is that the parent takes on financial responsibility for education, including exam fees and the costs of providing special educational provision in an EHC Plan when they EHE. Parents can ask the Council to provide financial support towards special educational provision, and the Council has a discretion, not a duty, to do so. Ms X did not ask for financial support, although Ms X told me she was unaware this was a possibility. However, this financial support for EHE would be limited to the special educational provision Y required and not for their core education. If Ms X wants the Council to take on financial responsibility, she would need to take up the offer of tuition as part of a reintegration plan. Ms X did not take up this offer when it was offered in Summer 2025 and did not appeal the final EHC Plan to ask for a specialist placement, which we would have expected her to do if she disagreed with the Council’s view that mainstream education was suitable.
44. While there was excessive delay in the EHC Plan and this will have caused uncertainty at a key transition stage, and additional time and trouble for Ms X, it has not prevented Y accessing education or taking exams. The Council has acknowledged the delay, apologised and explained the service improvements it is working on to prevent a recurrence of the fault. Our usual approach when there has been significant service failure is to ask councils to provide a symbolic payment to acknowledge the distress and impact. I consider a payment is appropriate in these circumstances. Given there is already an action plan in place overseen by the Government, I do not intend to make any further service improvement recommendations as these should already be in hand.

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Agreed Action

45. Within four weeks of my final decision, the Council will pay Ms X £1200 for the distress, uncertainty, time and trouble caused.
46. The Council will provide us with evidence it has complied with the above actions.

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Decision

47. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman