Summary: Miss X complained about the Council’s handling of her child’s Education, Health and Care needs assessment. We found the Council at fault for significant delays, poor communication, and poor administrative practice. These faults resulted in missed special educational provision for her child and caused Miss X avoidable distress and uncertainty. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained about the Council’s delay in completing her child, Y’s Education Health and Care needs assessment and its failure to act on an offer of a place at a specialist school quickly enough.
2. She says the delays resulted in her having to defer Y’s entry into school. They also missed the opportunity to attend a specialist school, instead being offered a mainstream school that cannot meet need.
3. She also says the actions have caused her significant stress.

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The Ombudsman’s role and powers

4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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

8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. Although Miss X became aware by June 2024 of the Council’s delay in completing Y's EHC needs assessment, she did not complain to the Ombudsman until September 2025, slightly outside the normal 12-month time limit.
10. However, I have exercised my discretion to investigate events from the request for an EHC needs assessment in November 2023 through to September 2025. The complaint concerns a continuous sequence of events culminating in the issue of the EHC Plan and the loss of an opportunity for a specialist school placement. Investigating only part of that sequence would not provide a proper understanding of what happened.
11. I have not investigated matters arising after the Council issued the final EHC Plan in July 2025 where Miss X exercised her right of appeal to the SEND Tribunal. This includes the suitability of the educational placement named in Section I, the special educational provision specified in Section F, and any consequences flowing from those matters. Those issues are outside our jurisdiction because they were connected with the Tribunal appeal.

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How I considered this complaint

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

Relevant legislation

Education, health and Care Plan

14. 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. 

Timescales and process for EHC assessment 

15. 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.
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.

Content of an EHC Plan

16. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement .

Maintaining the EHC Plan

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 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)  

Appeal rights

18. 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.

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, 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. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Education Other Than at School (EOTAS)

22. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school. We refer to this as EOTAS in this decision statement. It is only for children who cannot receive education in any school setting. If a child has an EHC Plan and their council decides they should receive EOTAS, it amends section F of the EHC Plan to state the special educational provision will be delivered through EOTAS.

Summer Born children

23. ‘Summer born children’ are children born between 1 April and 31 August. These children are not required to start school until the September following their fifth birthday. Ordinarily, they would then start school in year one with their ‘chronological year group’.

What happened

24. Y has significant learning disabilities and complex special educational needs.
25. In November 2023, while attending nursery, Y was referred for an EHC needs assessment. In January 2024 the Council agreed to carry out the assessment.
26. Y was due to start at School A, a mainstream primary school, in September 2024 through the normal admissions process. Following discussions with the school, Miss X believed it could not meet Y's needs and decided to defer Y's admission pending completion of the EHC process.
27. An Educational Psychologist (EP) assessed Y in September 2024. The assessment described Y as having complex needs requiring a highly personalised curriculum and one-to-one support throughout the school day.
28. In October, the Council decided an EHC Plan was necessary. Miss X repeatedly contacted the Council seeking updates before receiving a draft Plan in February 2025.
29. Miss X expressed a preference for three specialist schools. During March and April 2025, the Council consulted several maintained and independent specialist schools, and one non-specialist school, School A. Most declined because they could not meet Y's needs or had no places available, including School A.
30. In June, School B confirmed it could meet Y's needs and had a place available. Before the Council's funding panel considered the placement, it decided to re-consult previously approached schools to confirm their current position. By the time that exercise concluded, School B had filled its vacancy and withdrew the offer.
31. In July, the Council issued Y's final EHC Plan naming School A as an interim placement while continuing to seek a specialist school. Miss X appealed Sections B, F and I of the Plan to the SEND Tribunal.
32. Miss X complained to the Council about the delay in completing Y's EHC needs assessment and the subsequent delays which caused Y to miss the opportunity of a place at School B from September 2025. She also disagreed with the Council's view that Y could attend School A as an interim placement with additional funding, despite School A having said it could not meet Y's needs and expressed concern that appropriate specialist one-to-one support would not be in place by September.
33. In response to Miss X's complaint, the Council accepted there had been significant delays in completing the EHC assessment. It also accepted the additional work requested before panel consideration contributed to the loss of the opportunity at School B. However, it maintained that naming School A with additional funding represented the most appropriate interim arrangement while a specialist placement was sought.

My findings

Delay completing the EHC needs assessment

34. The Council was required to complete the EHC needs assessment process and issue Y's final EHC Plan within 20 weeks of the assessment request made in November 2023. Instead, it issued the Plan around 15 months late. This was fault.
35. Around five months of the delay arose while waiting for EP advice. Although there are national shortages of Educational Psychologists, councils remain responsible for complying with the statutory timescales. The shortage does not remove the Council's legal duties.
36. Once that advice was received, the Council took around a further ten months to issue the final Plan. The evidence shows lengthy periods during which little meaningful progress occurred. This demonstrates poor case management.
37. As a result, Y was deprived of the opportunity to receive the special educational provision that should have been available through an EHC Plan much earlier. Miss X also experienced avoidable frustration, uncertainty and distress.
38. Where fault results in lost provision, we usually recommend a financial remedy to recognise the impact. Taking account of Y’s age, individual needs, and provision detailed in Section F, I consider £1,200 per term to be appropriate.
39. I also find fault in the Council's communication with Miss X throughout the assessment process. The evidence shows she repeatedly had to contact the Council for updates and was, on at least one occasion, told the draft EHC Plan would be issued within a few days, which did not happen. Councils should keep parents informed of the progress of EHC assessments, particularly where statutory timescales have already been exceeded. The Council's poor communication caused Miss X avoidable frustration, uncertainty and additional time and trouble in chasing progress.

2024/25 academic year

40. As Y is a summer-born child, they were not required to begin compulsory education until September 2025. Accordingly, during the 2024/25 academic year the Council did not have a legal duty to provide Y with suitable education.
41. I also cannot say, even on the balance of probabilities, that if the EHC needs assessment had been completed without delay, the Council would have identified and named a suitable specialist school for Y by September 2024.
42. I have therefore not found fault causing a loss of education during the 2024/25 academic year. My findings of injustice instead relate to the significant delay in completing the EHC needs assessment, the resulting delay in securing the special educational provision Y required, and the uncertainty caused by the Council’s handling of the case.

2025/26 academic year

43. Miss X says Y lost the opportunity to attend School B from September 2025 because of the Council's actions. School B confirmed it could meet Y's needs and had a place available before the Council delayed consideration of the placement whilst re-consulting other schools.
44. The Council was entitled to satisfy itself that all potential placements had been explored before making a funding decision. However, it has accepted the additional consultation exercise delayed consideration of School B and contributed to the available place being lost. I therefore find fault in the way the Council managed this stage of the process.
45. I cannot say, even on the balance of probabilities, that had the Council acted sooner it would have agreed to fund School B or that School B would ultimately have been named in Y's EHC Plan. The injustice arising from the Council's fault is therefore the lost opportunity and uncertainty caused by the delay.
46. Throughout my investigation the Council accepted Y required specialist provision. It also received a detailed consultation response from School A explaining why it could not meet Y's needs, even with additional funding. Although the Council was entitled to reach a different professional view, there is little evidence it properly considered the school's concerns before deciding to name School A as an interim placement or satisfied itself of what provision School A was able to deliver.
47. Nor is there evidence the Council properly considered whether any alternative interim arrangements, including Education Otherwise Than at School (EOTAS), should be explored if no suitable school placement was immediately available. The lack of evidence demonstrating a reasoned decision-making process was fault and caused Miss X distress and uncertainty.

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Action

48. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
• apologise to Miss X in line with our guidance on Making an effective apology; and
• pay Miss X a total of £4,100, comprising:
1. £500 to recognise the uncertainty and distress caused by the delay obtaining Educational Psychologist advice and the Council’s poor communication; and
2. £3600 to recognise the loss of special educational provision for three terms.
49. I have not recommended any further service improvements. The Council has already accepted and implemented recommendations made following previous Ombudsman investigations aimed at improving the timeliness of EHC assessments, communication with families, and securing provision specified in EHC Plans. Those improvements address the wider service issues identified during this investigation.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman