Summary: We will not investigate this complaint about the Education, Health and Care plan process. This is because the Council has agreed to an appropriate remedy for the injustice caused by the delay. We will not investigate the rest of the complaint as there is not enough evidence of fault, and if Mrs X wants to challenge the content of her child’s plan, it is reasonable for her to appeal to a tribunal.

The complaint

1. Mrs X complained about delay in the Education, Health and Care Plan (EHC Plan) process. Mrs X says the Council failed to meet the relevant timescales in the SEN Code of Practice. Mrs X says this left her child without a suitable education. Mrs X is unhappy with the school the Council named in the EHC Plan and how the Council decided this.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
5. 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)
6. 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.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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 the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. Mrs X asked the Council to assess her child for an EHC Plan on 29 October 2024. The Council should have completed the process by 18 March 2025 – week 20 of the process. The Council issued a final EHC Plan on 11 September 2025 – just under six months late.
12. The Council has accepted it has taken longer than it should to complete the process due to a shortage of Educational Psychologists. This is service failure. This has caused Mrs X frustration and distress.
13. The Council has previously assured the Ombudsman of the actions it is taking to address delays in the EHC Plan process. We are therefore satisfied the Council has a plan to address this issue.
14. In cases like this we consider a payment of £100 to be a suitable remedy for each month of delay. We therefore asked the Council to remedy the injustice caused by making a payment to Mrs X to resolve the complaint early. The Council has agreed to the following to remedy Mrs X’s complaint.
• Pay £575 for just under six months of delay. The Council should make the payment within four weeks of our decision.
15. The Council has agreed a suitable remedy and is taking to steps to address the issue at the heart of this complaint.
16. As part of her complaint, Mrs X said delay by the Council left her child without a suitable school place. Mrs X has concerns about the education her child received and the school the Council eventually named in the EHC Plan and how the Council decided this. We will not investigate these points because:
• There was a school place available before the EHC Plan was issued. I understand Mrs X decided not to take this place up, but that is not fault by the Council.
• Any education Mrs X’s child received in school or nursery before the Council issued an EHC Plan is not something we can consider. This is because the law prevents us from looking at what happens in schools.
• Parents unhappy with the school named in an EHC Plan have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. If Mrs X wants to challenge the school named in the EHC Plan, then it is reasonable for her to appeal to the Tribunal. Any flaws in the Council’s decision-making will have potentially led to an unsuitable plan and the two issues cannot be separated. The Tribunal can order the Council to change the EHC Plan. That is not something we can do and so an investigation is not appropriate.

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Final decision

17. We will not investigate Mrs X’s complaint because the Council has offered a suitable remedy for the identified injustice. There is also not enough evidence of fault, and it is reasonable for Mrs X to appeal if she wants to challenge the content of her child’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman