Summary: We have upheld this complaint about the Council’s failure to issue an Education Health and Care plan for the complainant’s child within the statutory timescale. The Council provided a proportionate remedy. We cannot investigate an additional complaint about the final plan because the complainant has already appealed to the tribunal. An investigation into legal fees incurred by Mrs X would be unlikely to achieve the outcome she wants.

The complaint

1. Mrs X complains the Council failed to issue an Education Health and Care (EHC) Plan for her child within the timescale set out in the Special Educational Needs Code of Practice.
2. Mrs X also complains the final EHC Plan issued was unlawful and inadequate for her child’s needs, which meant she had to appeal to the tribunal to have it changed. Mrs X says this meant she incurred solicitor’s fees which the Council should repay.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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)
6. 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)
7. 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.
8. 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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How I considered this complaint

9. I considered information provided by Mrs X and the Council
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. Mrs X requested an education, health and care needs assessment on 5 February 2025. The Council formally agreed to assess on 28 March 2025. That being the case, the final EHC Plan should have been issued by 25 June 2025.
12. The final EHC Plan was issued on 2 October 2025, and so was delayed by 99 days. The Council has attributed the delay in part to the lack of educational psychology resource.
13. The Ombudsman regards delay in assessing education health and care needs due to the lack of specialist advice as amounting to service failure. We are satisfied that the Council has a plan in place to address the lack of specialist advice.
14. We therefore asked the Council to, within one month of the date of this decision, make a symbolic payment of £300 to Mrs X in recognition of the three-month delay. The Council agreed to this remedy, which removed the need for us to investigate the delay.
15. Once the final EHC plan was issued, Mrs X appealed to the Tribunal to have its contents changed. So, the restriction in paragraph 6 applies.
16. We will not consider reimbursement of legal costs. Mrs X did not require legal representation to make an appeal to the Tribunal, complain to the Council, or complain to the Ombudsman. An investigation into this would be unlikely to result in reimbursement of legal fees. We cannot achieve the outcome Mrs X wants.
17. It is for the Tribunal to decide whether to award Mrs X the relevant costs as part of her appeal.

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Final decision

18. We have upheld Mrs X’s complaint about delay. The Council has resolved the complaint by providing a proportionate remedy to the injustice caused. We cannot investigate Mrs X’s complaint about the final EHC plan because she has used a tribunal appeal right. We will not investigate the legal costs incurred by Mrs X. It is unlikely we will achieve the outcome she wants.

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Investigator's decision on behalf of the Ombudsman