Summary: The Council delayed assessing Miss X’s child Y and issuing their Education, Health and Care Plan. This caused Miss X uncertainty and frustration and delayed her right of appeal to the Tribunal. I cannot say this resulted in Y missing out on the provision in the Plan as Y struggled to engage with education during this time. The Council has agreed to apologise and make a payment to Miss X. The Council was not at fault for its efforts to commission and review Y’s alternative education during this time.

The complaint

1. Miss X complained the Council delayed carrying out an Education, Health and Care (EHC) needs assessment of her child, Y, and issuing a final EHC Plan following an appeal to the SEN Tribunal. She says this resulted in Y not receiving an education. Miss X wants the Council to compensate her for the impact of its failings, and ensure Y receives a suitable education that meets her needs.

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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. 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)
4. 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

5. 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.
6. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

7. 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)
8. Miss X user her right of appeal to the Tribunal over the Council’s initial decision not to assess Y for an EHC Plan. I cannot investigate this part of Miss X’s complaint. Miss X had a right of appeal over the content of Y’s EHC Plan. It was reasonable for Miss X to use this right and I have not investigated this part of Miss X’s complaint.

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How I considered this complaint

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

Education, Health and Care (EHC) Plans

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. 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. 
• 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.
• 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);  

13. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

Those consulted have a maximum of six weeks to provide the advice. 

Alternative provision

14. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child 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.
15. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
16. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.

Background

17. Miss X’s child, Y, has multiple neurodevelopmental conditions and experiences sensory difficulties. Y started attending her secondary school (school A) in September 2021 but struggled to engage with their education and attend consistently. By December 2023 Y had stopped attending school.

What happened

18. In June 2024 school A made a referral to the Council for an alternative education. The Council decided Y met the threshold for an alternative education and began planning alternative provision for Y. Miss X requested an EHC needs assessment for Y on 26 June 2024.
19. The Council held a planning meeting for Y’s alternative education in mid-July 2024. Following the meeting it referred Y to an alternative provision school (school B). On 2 August 2024 the Council decided not to assess Y for an EHC plan. Miss X appealed the decision. Around this time Y began receiving alternative provision from school B. School B aimed to deliver group provision in a local library. The provision consisted of Maths, English and Science alongside personal development aims.
20. The Council conceded the Tribunal appeal in December 2024 and agreed to assess Y on 9 December 2024.
21. A March 2025 review of Y’s alternative education noted Y as “developing” in all areas of their education. It said Y’s attendance had begun at 33.7% but was now 83%. The Council and school B continued to review Y’s provision over the coming months.
22. In the April and June 2025 reviews school B began raising concerns over Y’s ability to engage with their alternative education. They said Y’s health was impacting their ability to access education. School B reduced Y’s curriculum and looked to move Y’s provision to home based 1:1 from a group setting. By July 2025 the Council and school B agreed the current package was not meeting Y’s needs and the Council began exploring an alternative package from September 2025.
23. Miss X complained to the Council around this time. She said Y had yet to receive an assessment from an Educational Psychologist (EP) for their EHC Plan. In its complaint response the Council said there was a shortage of EPs and an increased in EHC needs assessment requests. It accepted it had delayed assessing Y.
24. Y began alternative provision from a new provider in September 2025. The provision was a mix of online and at home for around one to two hours a day, depending on what Y could cope with. Miss X complained to the Ombudsman on 15 September 2025. She said Y was out of education and not receiving appropriate alternative provision.
25. In October 2025 the Council decided to pause Y’s alternative education. Y’s provider said Y could not engage with the learning and recommended a review of Y’s fitness for education. A review meeting around this time noted Y’s attendance as 21%. The Council kept the provider on standby to restart Y’s alternative education when ready.
26. An EP assessed Y on 17 October 2025. The Council issued a draft EHC Plan on 9 December 2025 and final EHC Plan on 20 January 2026. It named a mainstream school as Y’s placement, with a general further college from September 2026.

My findings

EHC Plan timescales

27. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Miss X requested an EHC needs assessment on 26 June 2024. The Council decided not to assess Y on 2 August 2024. This was within the six weeks the Council had to decide whether to assess Y or not. The Council was not at fault.
28. The Council agreed to assess Y on 9 December 2024. Having agreed to assess Y and then issue an EHC Plan the Council should have issued the final EHC Plan within 20 weeks. This was 28 April 2025. The Council issued Y’s EHC Plan on 20 January 2026; a delay of almost nine months. This was fault.
29. EHC needs assessments must include advice from professionals, including an EP. The Council should have ensured it received the advice the EP within six weeks. It took 44 weeks (almost nine months) to receive the EP advice.
30. The Council has not met the EHC Plan timescales due to 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). This caused Miss X frustration, distress and uncertainty.
31. Once the Council received the advice, it should have issued Y’s final EHC Plan within six weeks. It took the Council an additional seven weeks to issue the final EHC Plan. This was fault.
32. The delay in the EHC assessment caused Miss X uncertainty and frustration while she awaited Y’s final EHC plan and means her appeal right was delayed. However, I cannot say whether the delay meant Y lost out on special educational provision. This is because the evidence shows Y consistently struggled to engage with any form of provision during this time.

Alternative provision

33. The Council received a referral from school A in June 2024 and immediately began planning Y’s alternative provision. It put in place provision with school B and reviewed this over the coming months. When Y struggled to engage with the provision the Council adapted the provision and tried alternatives. The evidence shows the Council consistently reviewed Y’s provision and attempted to secure alternative provision that met Y’s needs. While Y struggled to engage with this provision, the Council was not at fault.

The Council’s action plan

34. The delays identified in this decision were due to the Council’s difficulty commissioning an EP to assess Y. The Council has an action plan in place to address this issue. The Ombudsman continues to monitor the Council’s progress against the plan. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

35. Within one month of the final decision the Council has agreed to:
1. Apologise to Miss X for the uncertainty and frustration caused by the delay assessing Y and issuing their final EHC Plan, and the delay to Miss X’s right of appeal. 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 I have recommended.
2. Pay Miss X £900 to recognise the uncertainty and frustration caused by the delay assessing Y and issuing their final EHC Plan, and the delay to Miss X’s right of appeal. This equates to around £100 per month for the time between when it should have received the Educational Psychologist’s advice to when it received that advice.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman