Summary: We find the Council was at fault for the delay in issuing a final Education Health and Care (EHC) Plan for Ms X’s son, Y. This caused Ms X distress and delayed her right to appeal. The Council also failed to give Ms X the information she needed to make an informed choice about whether to commission a private educational psychologist assessment for Y’s EHC assessment. This meant Ms X paid for the assessment unnecessarily. The Council’s communication with Ms X was also poor. The Council has agreed to apologise, makes symbolic payments and reimburse the cost of the private report to remedy the injustice caused to Ms X.

The complaint

1. Ms X says the Council delayed issuing her son, Y’s, Education, Health and Care (EHC) Plan. Ms X said she paid for a private Educational Psychologist (EP) report to reduce the delay. Ms X also complains about poor communication.
2. Ms X says the faults have caused distress and frustration for the family. She has incurred avoidable financial costs and had to defer Y’s education for a year due to the delay.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs and EHC Plans. We refer to it as the Tribunal in this decision statement.
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6).
8. Y started school in September 2025, and Ms X complained to us at the same time. She said Y was not attending school full-time and the Council had failed to provide any alternative provision. I have not considered this part of Ms X’s complaint as the Council has not had the opportunity to respond to the issues she has raised. Ms X will need to complain to the Council in the first instance before approaching the Ombudsman.

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How I considered this complaint

9. I spoke to Ms X and discussed the complaint with her. I considered evidence provided by Ms X and the Council as well as relevant law, policy, and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

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

Education

15. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.
16. A child or young person with special educational needs may have an 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.
17. The Council has a duty to make sure the child, or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

What happened

18. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
19. Ms X requested an EHC needs assessment for Y in May 2024. Y was about to turn four years old.
20. The Council agreed to complete an EHC needs assessment in June. The Council asked professionals to provide information within six weeks.
21. The Council requested formal health and social care advice in July. Due to a national shortage of EPs, the Council was unable to allocate the case to an EP at the time.
22. Ms X asked the Council if she could defer Y’s education for a year. This was agreed by the Council on 16 July.
23. To reduce the delay in completing the EHC needs assessment, Ms X commissioned a private EP assessment for Y in January 2025.
24. The Council decided it would use the private EP assessment in Y’s EHC Plan and issued a draft Plan in April.
25. The Council issued a final EHC Plan on 24 April. In section I of the Plan it named a voluntary aided school (School A), which Y would attend from September.
26. Ms X appealed to the SEND tribunal in June. She appealed section I of the Plan.
27. Following the appeal submission, Ms X complained to the Council and said she:
• had already deferred Y’s school placement by one year to ensure he could access appropriate provision, and she was not prepared to send him to a school that had clearly outlined they could not meet his needs and would be putting him at risk.
• paid for a private EP assessment at the detriment of her finances to ensure Y had an appropriate placement in time.
• was extremely concerned that Y would not have appropriate provision nor a suitable transition period to an appropriate placement in September 2025.
28. The Council acknowledged that Y's EHC needs assessment was delayed and apologised to Ms X. It said Ms X received consistent support and regular updates throughout the process. The Council explained it had consulted with multiple schools and sustained efforts led to a confirmed placement at School A for September.
29. Y attended School A on a reduced timetable from September 2025. Ms X complained to the Ombudsman at the same time.
30. The tribunal hearing was held in January 2026. Following the tribunal order, Y has been attending a specialist setting since April.

Analysis

EHC process

31. When a council agrees to complete an EHC needs assessment, it should finalise the EHC Plan within 20 weeks of the request. Ms X asked for an assessment in May 2024, and the Council should have issued a final Plan by 9 October 2024. The Council finalised the Plan in April 2025. This was a delay of six and a half months.
32. The significant delay in providing the EP report contributed towards the Council’s delay in completing the EHC needs assessment and the final EHC Plan. The delay in obtaining EP advice is three months. There was further delay of three and a half months in issuing the final EHC Plan. In its complaint response, the Council accepted it had delayed completing the EHC needs assessment.
33. The Council’s failures had a significant impact on Ms X. It caused Ms X distress and frustration and delayed her appeal rights.
34. The Council has offered to pay Ms X £100 for each month of delay during the EHC needs assessment process. This is in line with the Ombudsman’s guidance for remedying injustice caused by EP related delays. In Ms X’s case, the EP delay equates to £300. We recommend a further payment of £100 per month of continuing delay until the final Plan was issued. Therefore, we recommend a total symbolic payment of £650 for the injustice caused to Ms X by the delay in the EHC process. This represents a payment of £100 per month for the total period of delay from the statutory 20-week deadline in October 2024 until the Council issued the final EHC Plan in April 2025.

Private report

35. Ms X commissioned a private EP assessment in the belief it would reduce the delay waiting for the outcome of Y’s EHC needs assessment and ultimately, Y’s final EHC Plan. This was a reasonable view to take, given the wait for an EP assessment was the reason for the delay.
36. The Council said it would have advised Ms X that it would not reimburse the cost of a privately sourced assessment and explained that a private EP report would not necessarily expediate Y’s assessment and that a SEND co-ordinator would be allocated when available.
37. There is no evidence the Council advised Ms X that obtaining the private assessment would not mean Y would receive their final EHC Plan any sooner, or that it would not reimburse her even if it used the private assessment in Y’s final EHC Plan. This was fault and meant Ms X paid for the assessment when she likely would not have done so, had the Council given her the necessary information to make an informed choice. The Council decided it would use the private EP assessment in Y’s EHC Plan and issued a draft Plan in April 2025. I recommend the Council reimburse Ms X the cost of Y’s EP report.
38. I would usually make service improvement recommendations to address this, however, following a similar case investigated by the Ombudsman, the Council now has a clear position statement on the use of private reports which is easily accessible to parents. I am satisfied with this.

Education

39. Y became of statutory school age in September 2025, although he could have attended school from September 2024.
40. Ms X requested an EHC needs assessment for Y in May 2024. The Council agreed to complete an EHC needs assessment in June. The Council then had 16 weeks to decide whether it would issue an EHC Plan. In this case the statutory deadline for issuing a final EHC Plan was October.
41. Ms X asked to defer Y’s education in July, which was three months before the statutory deadline for issuing a final EHC Plan and before the extent of the EP delay was known to her. Therefore, on balance, I do not accept Ms X’s decision to defer Y’s education was based on delay by the Council during the needs assessment process. This was a decision Ms X made at the time, and not a consequence of delay by the Council.
42. Ms X says if the Council had issued the final EHC Plan on time, she could have appealed to the tribunal in October 2024, and Y would have attended a specialist setting sooner. I have already recognised the delay in issuing the final Plan delayed Ms X’s appeal rights. However, we have no control over the tribunal process and cannot predict the timescales for an appeal, therefore I cannot say whether Y could have attended a specialist setting sooner. Although, I recognise this has caused Ms X uncertainty. I am satisfied the remedy set out in paragraph 34 above, for the delay in issuing a final EHC Plan considers this injustice.
43. Ms X also complained about Y’s education and provision since he started attending school in September 2025. I have not investigated this part of Ms X’s complaint for the reasons set out in paragraphs 7 and 8 above.

Communication

44. Ms X says the Council’s communication was poor. The Council said Ms X would have received some communication via its automated system, but I have seen no evidence of this. Furthermore, the Council has no records of its communication with Ms X about paying for a private EP report. Therefore, on balance, I agree the Council’s communication with Ms X was poor during the EHC process and this would have added to her distress. The Council has offered to pay Ms X £250 for the distress caused by the faults, and I am satisfied with this.

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Action

45. Within one month of my final decision the Council will take the following actions:
1. apologise to Ms X for the injustice caused by the faults identified in this statement.
2. make a symbolic payment of £650 to Ms X for the delay in issuing a final EHC Plan.
3. reimburse Ms X the cost of Y’s educational psychologist report.
4. make a symbolic payment of £250 to Ms X for the distress and uncertainty caused by the faults identified in this statement.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice to Ms X. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman