Summary: Mrs X complained about the way the Council dealt with her son, Y’s education. The Council was at fault for delaying in issuing Y’s Education, Health and Care Plan. This caused Mrs X and Y distress, frustration and uncertainty. The Council has already apologised and offered a financial remedy. The Council should provide evidence it has made the financial remedy.

The complaint

1. Mrs X complained about the way the Council dealt with her son, Y’s, education, she says the Council:

• delayed in issuing Y’s EHC plan;
• shared incorrect information with other departments; and
• poorly communicated with her.

2. Mrs X says this caused Y to miss out on education during his final GCSE year, as well as support and mental wellbeing that education could have provided. She also says this has caused Y’s mental health to deteriorate. Mrs X says this also took her a considerable amount of time and trouble to resolve.

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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. The law says 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. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5)
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(i), 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. I have not investigated Mrs X’s complaints that the Council shared incorrect information with other departments and poorly communicated with her.
9. This is because, there is no evidence that Mrs X complained about this matter to the Council before she complained to the Ombudsman. We generally expect complainants to use a council’s complaints procedure before we will investigate a complaint, and it would have been reasonable for the Council to have had a chance to investigate and respond to her concerns.
10. In this case, if Mrs X was unhappy that the Council sharing incorrect information with other departments led to inaccuracies in the EHC plan, she could have followed the process for disputing the content of the EHC plan, such as mediation or used appeal rights.
11. I have investigated the remainder of Mrs X’s complaint.

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How I considered this complaint

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

Legislation and guidance

EHC 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. 

Timeframes 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: 

• 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 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.

Advice and Information for EHC needs assessments

16. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

Mediation

17. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.

Appeal rights

18. There is a right of appeal to the Tribunal against a council’s 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 and amendment to these elements of an EHC Plan.

What happened?

19. Mrs X asked the Council to complete an EHC needs assessment for Y in mid-June 2024.  
20. The Council started the EHC needs assessment and requested an educational psychologist report. An educational psychologist sent this report to the Council in mid-November 2024. At the same time, the Council noted it was in the process of writing a draft EHC plan.
21. Mrs X complained to the Council at the end of February 2025. She complained that despite the timeframes stating that it should have issued Y’s EHC plan by early November 2024, it had still not issued this.
22. The Council responded to Mrs X’s stage one complaint at the end of March. It apologised for the delays in meeting the EHC plan statutory timeframes. It said this was because of a delay in educational psychologist advice.
23. The Council contacted Mrs X again at the end of May. It apologised again for the delay in issuing Y’s EHC plan and offered a financial remedy of £800 to recognise the injustice caused by these delays.
24. Mrs X made a stage two complaint to the Council shortly after because it had still not issued Y’s EHC plan. She also disagreed with the offer of £800 as a financial remedy and asked it to increase the amount.
25. The Council responded to Mrs X’s stage two complaint in mid-June. It noted that the stage one complaint adequately responded to her concerns and the payment of £800 was a sufficient remedy for the delays in the EHC planning process. It decided it would not consider Mrs X’s complaint further.
26. The Council issued Y’s EHC plan at the end of August. This noted that he had been out of education since August 2024. It also named a mainstream independent college as his educational placement.

Council service improvements

27. The Council told the Ombudsman that it is taking steps to improve its ability to meet statutory timeframes. This includes the recruitment of additional staff and the introduction of a range of tools to internally monitor its performance and identify where it is not taking action in a timely manner.

Findings

28. We expect councils to follow the statutory timeframes set out in the law and the Code.
29. The Council should have issued a final EHC plan by November 2024, but it did not issue this until August 2025.
30. This significant delay of nine months is not in line with statutory timeframes, and this is fault.
31. I have considered the injustice that this delay likely caused Mrs X and Y. Mrs X says this caused Y to miss two terms of education. I cannot say, even on the balance of probabilities, that the Council’s delay in issuing Y’s EHC plan caused him to miss two terms of education. This is because we are not experts in trying to decide what Y’s provision should/would have been in November 2024, when the Council should have issued the EHC plan. We cannot say that the EHC needs assessment would have reached the same conclusions had it taken place nine months earlier.
32. Instead, it is likely that these delays caused both Mrs X and Y distress, frustration and uncertainty.
33. The Council has already apologised and offered a financial remedy of £800. This remedy is more than we would have recommended in line with our guidance on remedies, considering one month delay because of educational psychologists delays and the distress, frustration and uncertainty this caused.
34. I also welcome that the Council has started to make service improvements to its processes. For this reason, I do not consider it necessary to make any further service improvements related to this.

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Action

35. Within four weeks of our final decision, the Council will:

• reoffer the £800 payment it offered to Mrs X to remedy the injustice caused to Mrs X and Y by delaying in issuing Y’s EHC plan. The Council should make this payment to Mrs X if she accepts.

36. The Council should provide us with evidence it has complied with the above action.

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Decision

37. I find fault causing injustice. The Council has agreed action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman