Summary: We uphold a complaint from Mr X, finding the Council delayed in issuing his son with an Education, Health and Care Plan. This caused avoidable distress, which we consider an injustice. The Council has accepted these findings and agreed to take action that we consider will remedy this injustice.

The complaint

1. Mr X complained the Council delayed in completing an education, health and care needs assessment for his son, Y, who has special educational needs.
2. Mr X said this resulted in a delay in the Council providing Y with an Education, Health and Care (EHC) Plan. He said during this time, Y remained enrolled at a school that did not have the expertise or resources to meet his needs. This meant Y had disruption to his education and the delay contributed to that. This disruption negatively impacted Mr X, his wife and grandparents as they often had to care for Y during school hours.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. Our view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith by the council. There may be circumstances where we decide service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. (see R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If 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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How I considered this complaint

8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. I gave Mr X and the Council opportunity to comment on a draft version of this decision statement. I considered any comments they made, or further evidence they provided, before issuing this statement.

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What I found

Relevant legal and administrative considerations

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and arrangements to meet them.
11. The Government issues statutory guidance: ‘Special educational needs and disability code of practice: 0 to 25 years’. This explains how councils should complete education, health and care need assessments and produce EHC Plans. The guidance follows the Children and Families Act 2014 and the SEN Regulations 2014. It says councils should: 

• assess needs and develop an EHC Plan “in a timely manner”, completing steps as soon as practicable;
• issue an EHC Plan, no more than 20 weeks after it receives a request for an assessment (unless certain specific circumstances apply not relevant to this complaint). This includes ensuring the child’s parent or young person has 15 days to comment on a draft version of the EHC Plan and express a preference for an educational placement.

12. As part of an assessment, the council must gather advice from relevant professionals (SEND Regulation 6(1)). This includes obtaining psychological advice and information from an Educational Psychologist (EP). They have a maximum of six weeks to provide that advice.

The key facts

13. Y is a child of primary school age, with special educational needs. At the beginning of July 2025 he attended a mainstream primary school. The Council began an assessment of Y’s education, health and care needs to decide if Y needed an EHC Plan.
14. In mid-October 2025 Mr X complained at the delay in the Council completing Y’s assessment. He identified the cause of the delay was because Y still waited for an EP assessment. He suggested the Council could refer Y’s case to a private EP.
15. The Council replied just over a month later, in November 2025, at stage one of its complaint procedure. It apologised for the delay in completing Y’s assessment. It said that because of an increase in assessments there was a high demand for its EP service. It said it intended to have a “robust recovery plan” in place by December. It also said it would update Mr X at the beginning of December on the progress of Y’s case.
16. Later that month Mr X asked the Council to consider his complaint at stage two of its complaint procedure. He said the stage one reply had not provided a remedy for his complaint. In particular, it did not provide for Y to have his overdue EP assessment.
17. By November 2025 Y’s school could no longer meet his needs, although he remained on the school roll. He began attending an alternative education provider.
18. The Council gave a final reply to Mr X’s complaint at the start of December 2025. It did not think it could add to its stage one reply but it advised Mr X of his right to escalate his complaint to this office. Mr X then contacted us later that month, asking us to investigate his complaint.
19. After we received Mr X’s complaint, there were the following developments:

• in January 2026 the Council completed its education psychology assessment;
• also in January 2026, Y returned to his mainstream primary school. However, after a few weeks the school again found it could not meet his needs and he returned to the alternative education provider, where he remains;
• in May 2026 the Council issued Y with an EHC Plan. This continued to name the mainstream primary school. Mr X appealed that decision. The Council then agreed Y needed a specialist placement, although it has yet to secure a school place for him.

20. I also noted that in June 2026 the Council published information on its website about its EP service, which recognises the service has experienced delays. It explains the action it is taking to address those delays, which includes:

• increasing the capacity of its EP team by recruiting more EPs (including locums);
• using short-term funding to reduce waiting times and commissioning more capacity in the service from summer term 2026;
• reviewing how it allocates cases for assessment and using flexible approaches, such as virtual assessments where suitable.

21. The webpage notes these measures form part of a wider Special Educational Needs and Disability transformation programme. It refers to the “Cheshire East SEND and AP ‘One Plan’: Special Educational Needs and Disability and Alternative Provision Strategy and Development Plan 2025-2028”. The ‘One Plan’ included a commitment by the Council to set out “identified actions to prioritise completion of delayed [education, health and care needs] assessments”. The Plan records the Council as completing this action in July 2025.

My findings

22. After the Council agreed to assess Y’s education, health and care needs the Council should have issued him with an EHC Plan in a maximum 20 weeks. However, it took it around 45 weeks to do so, a delay of around six months.
23. I have not fully established the cause of this delay but clearly it resulted in part from pressures on the Council’s EP service. The service should have provided its advice within six weeks. But the evidence suggests it took closer to six months to do so.
24. In its replies to his complaint, the Council explained to Mr X something of the pressure the service experienced. It recognised the need to put an action plan in place to meet the demand for this service. The information it subsequently put on its website, summarised in paragraph 20, reflects that. I found part of the delay in Y receiving his Plan therefore resulted from service failure in the EP service. But as I explained in paragraph 4, a service failing is still a fault.
25. I found there must also have been other causes for the delay in Y receiving his EHC Plan, given the EP gave their advice in January 2026. Before issuing Y with a Plan the Council had to circulate a draft version for comment. That would account for around another month of the time taken to complete it. But that still left around two to three months of delay unaccounted for. I had concern Y’s assessment should have experienced any significant delay after the EP gave their advice, given how long Y had waited for that.
26. This further delay suggested the pressures on the special educational needs and disability (SEND) service were greater than just in the EP team. Or else the Council did not prioritise Y’s case with enough urgency.
27. In any event the further delay was a continuation of the fault that began once the Council did not issue Y with a Plan within 20 weeks.
28. The delay caused Mr X and Y an injustice. Delays of this kind cause inherent distress for parents as they do not know if the Council will issue their child with a Plan, nor what it might contain. While for the child, they do not received education tailored to meet their needs which an EHC Plan should provide for.
29. Those considerations applied in this case. Although I noted Y’s Plan might not have looked the same but for the delay. This was because his presentation during his EP assessment may not have been the same if undertaken sooner.
30. I also could not say that without the fault, Y’s education would not have experienced disruption. It is not uncommon that children with special educational needs may have an unsettled period of education. That places unavoidable pressures on parents. But delays add to those pressures. For example, clearly Y’s education future remains unresolved with him waiting for a specialist school place. The delay in producing the Plan, led also to a delay in Mr X’s ability to appeal, which then delayed his ability to try and resolve this matter. This was another source of distress, and therefore injustice, to Mr X.
31. In my draft decision I recommended action I wanted the Council to take to remedy Mr X’s injustice. Those recommendations took account of the Ombudsman’s guidance on remedies. I welcome the Council accepted the findings set out above and the recommended actions now set out as “agreed action” below.

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Agreed Action

32. To remedy Mr X and Y’s injustice the Council has agreed that within 20 working days of a final decision on this complaint, it will:
1. apologise to Mr X, accepting the findings of this investigation. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making its apology;
2. make a symbolic payment to Mr X of £600, to recognise the distress caused by the delay in issuing Y with his EHC Plan.
33. I also wanted the Council to consider what wider lessons it could learn from this complaint. It has a plan in place to tackle delays in EP assessments. I did not consider it proportionate to recommend it take further action to revisit that. This was after I took account the events covered by this complaint took place before the Council published the information now on its website.
34. However, I remained concerned about the wider delay in this case. I note in July 2025 the Council recorded that it had identified work needed to reduce delays in education, health and care needs assessments. But that had not benefited Y, despite this coinciding with when the Council began an assessment of his needs. And I could not find anything in the public domain that explained what actions the Council had identified that would improve its performance, except for those connected to the EP service.
35. The Council has agreed therefore that within 20 working days of this decision it will also write to us to confirm:

• what actions it had identified by July 2025 to reduce delays in education, health and care needs assessments;
• how it has sought to carry out and monitor those actions subsequently;
• whether it has measured any demonstrable improvement in reducing delays since July 2025; and
• what further steps it intends to take to monitor those actions moving forward; including any reporting to its Children’s Overview and Scrutiny Committee.

36. The Council will provide us with evidence when it has complied with the actions set out in paragraphs 32 and 35.

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Final Decision

37. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mr X and Y. The Council has accepted these findings and agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman