Summary: Mrs B complained about delay and poor communication by the Council when issuing an Education, Health and Care Plan. We upheld the complaint, finding fault by the Council caused an injustice to both Mrs B and her daughter. The Council has accepted these findings and has agreed to provide Mrs B and her daughter with an apology and symbolic payment. It will also ensure it issues the Plan without delay and provide advice on any other services it can offer. The Council has also agreed to review how it considers complaints about its Special Educational Needs and Disability service to improve its complaint handling.

The complaint

1. Mrs B’s complaint followed a request she made in late 2023, for the Council to assess whether her daughter, C, who has special educational needs, should have an Education, Health and Care (EHC) Plan. Mrs B complained in March 2024 about delay by the Council in completing its assessment and failing to issue C with an EHC Plan. While the Council later agreed to issue a Plan, Mrs B complained it had still failed to do so.
2. Mrs B also complained about the Council’s communications around this matter. She was unhappy that more than once the Council declined to accept, or escalate, a complaint she made through its complaint procedure. Also, that its Special Educational Needs and Disability (SEND) service failed to provide updates or respond to her emails asking for the same.
3. Mrs B said as a result C started a further education institution in September 2024 without a proper transition and without an EHC Plan to support her learning. C struggled to attend and Mrs B said trying to go on without a Plan made C mentally and physically unwell. C left education in January 2025. Mrs B says the thought of returning to education makes C worried, as she does not believe she will receive support, having lost trust with the Council.
4. For her part, Mrs B said making enquiries and complaints for her daughter had also left her mentally and physically unwell, given the lack of support she received from the Council. It also distressed her seeing the lack of support provided to C. She said both her and her husband (Mr B) had to take unpaid time off work or reduce their working hours to support C.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. The Ombudsman’s 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 on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
6. 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)
7. 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)
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. Before issuing this decision statement I considered evidence provided by Mrs B and the Council, as well as relevant law, policy and guidance referred to in the text below.
10. I also gave Mrs B and the Council chance to comment on a draft version of this decision statement. I considered any comments they made and further evidence provided, before finalising the decision statement.

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What I found

Relevant law and guidance

11. 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.
12. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out how councils should complete EHC assessments and produce EHC Plans. It says: 

• assessing needs and developing EHC Plans “must be carried out in a timely manner”. Councils must complete steps as soon as practicable; 
• if a council agrees to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks;
• 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;
• when a council issues an EHC Plan it should take no more than 20 weeks to do so. This is from the point it receives a request for an assessment until it issues the final EHC Plan. Only in specific circumstances, not relevant to this investigation, does this not apply.  

13. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)), including psychological advice and information from an Educational Psychologist. They should provide that advice within six weeks.

Council complaints policy

14. The Council publishes a complaint policy and procedure for complaints made about its SEND service. It defines a complaint as “an expression of dissatisfaction about the Council’s action or lack of action or about the standard of service [..]”.
15. The policy explains the Council will not consider some complaints about the SEND service because of rights of appeal to a Tribunal (once it has issued an EHC Plan). But that it will consider complaints about delays in production of EHC Plans and communication issues.
16. The policy explains a service manager will respond under ‘stage one’ of the procedure. If the person remains dissatisfied, they can ask the Council to consider their complaint at ‘stage two’. They should ask for a stage two review within 20 days of the stage one reply. A SEND Resolution Officer will then investigate the complaint if it is “within the remit” of the procedure. The policy also says “the time limit can be extended at the discretion of the Head of Service for SEND and Inclusion if there are reasonable grounds for the complainant not to have made the complaint earlier; and it is still possible to consider the representations effectively and efficiently”.

Previous Ombudsman investigations & Ofsted Inspection

17. Since March 2023 the Ombudsman has issued four decision statements including recommendations the Council improve its service to reduce delays in completing EHC assessments. We issued the most recent in November 2024. In response the Council told us that it had undertaken a “complete restructure” of its SEND service in Autumn 2024.
18. Before this, in September 2021, the education regulator Ofsted published an inspection report which among other matters drew attention to:

• “unacceptable” delays in completing education, health and care assessments; noting the “vast majority” did not complete in 20 weeks;
• a lack of capacity in key teams, including educational psychology;
• that “a lack of communication from the area to parents and carers exacerbates their frustrations”.

Key facts

19. In September 2023 C entered Year 11, the final year of their secondary education. She hoped to enter a further education institution in September 2024. Because C has special educational needs, her school had provided her with a support plan and adjustments to help her complete her GSCE studies. Mrs B asked the Council to complete an EHC assessment, so C might benefit from EHC Plan when she began further education. She did not know if a new education institution could replicate the support C received, given their unfamiliarity with teaching C, if she did not have a Plan.
20. In December 2023 the Council agreed to the assessment request. But in March 2024 Mrs B complained the Council had not yet issued a draft EHC Plan. She also did not know the identity of C’s current caseworker in the SEND service, as C’s first caseworker was no longer in post.
21. The Council replied saying that it continued to assess C’s needs and gave Mrs B the name of C’s new caseworker. It said it would only register a complaint from Mrs B once an EHC Plan became overdue, in mid-April. Mrs B said she should be able to complain now, as the Council also had to meet the timescale to issue her with a draft version of the EHC Plan. The Council reiterated its position in reply. In reply to our draft decision statement the Council said that this was wrong. That it could have registered a complaint from Mrs B at this point.
22. Consequently, Mrs B waited until the beginning of May 2024 to resume her complaint. She said C still did not have a draft EHC Plan.
23. In reply the Council told Mrs B it had now assigned C’s case to an Education Psychologist to complete an assessment. It offered to still register a complaint, if Mrs B wanted this. Mrs B confirmed she did.
24. Later in May 2024 the Council replied. It explained it had unprecedented demand for its service and a shortage of Educational Psychologists. This resulted in delays in it completing EHC assessments. It apologised and said it had measures in hand to try and reduce delays.
25. Around a week later an Education Psychologist met with C and undertook their assessment.
26. By mid-June 2024 Mrs B had heard nothing further and so tried to contact C’s caseworker. Her emails were returned to her as undeliverable. When Mrs B chased an explanation, the Council told her the caseworker had left.
27. By July 2024 C had a third caseworker. The Council issued a draft EHC Plan and met with Mrs B to discuss possible amendments.
28. C completed her secondary education gaining good exam marks. Mrs B said despite her special educational needs, C maintained an attendance above 90% because of the school’s adjustments, including giving her a bespoke timetable, enabling C to keep up with her studies.
29. Mrs B let another month pass but having heard nothing further contacted the Council again. She was unhappy that C was now less than a month away from starting further education but had no final EHC Plan. Mrs B said the uncertainty affected C’s anxiety, which forms part of her special educational needs. Mrs B said she wanted to escalate her complaint to stage two of the complaint procedure. The Council declined this, because more than 20 working days had passed since it gave its stage one reply.
30. Commenting on a draft of this decision statement the Council said that around this time its senior complaint officer was on a long-term absence from work. Temporary staff covered their role. They received advice to reply to Mrs B’s complaint in August 2024 at stage one of the procedure but did not do so.
31. Mrs B appealed but again the Council declined to accept her complaint at stage two of its procedure. This time it said the complaint fell outside the scope of its procedure as it could provide no different outcome to that given at stage one. It says that by this it meant that it would again find the complaint upheld because of delay.
32. Mrs B continued to chase the special education service which promised its caseworker would be in touch. When, by mid-September 2024 Mrs B had still received no update on C’s EHC Plan she asked again for it to consider her complaint at stage two of the complaint procedure. She explained C had started further education but experienced symptoms associated with her special educational needs that had a distressing impact on her.
33. For a third time the Council refused to escalate Mrs B’s complaint. This time it said that a complaint investigation would not “influence the outcome you are seeking”. The Council says by this it meant that its complaint officers could not direct the SEND service to issue an EHC Plan.
34. At this point, we agreed to investigate Mrs B’s complaint. In December Mrs B told us that C’s difficulties attending further education had become worse and she frequently had to leave early. She copied us into an email sent to its SEND service wanting an urgent discussion and saying she had received no contact from its caseworker since July.
35. In January 2025 Mrs B told us she had received no response to that email. Unfortunately, C had now withdrawn from college. Mrs B had still received no further contact from C’s caseworker or anyone else from the SEND service.
36. Mrs B told us she has only received contact in February 2025. Meanwhile, C’s EHC Plan remained at draft stage.

Findings

Was the Council at fault?

37. The Council was, and remains, at fault for the delay in issuing C’s EHC Plan. On its own account it should have issued the Plan before the end of April 2024. So, it is now 11 months late and counting.
38. Part of the fault clearly lies in the service failure resulting from the Council having too few education psychologists last year, to meet demand. I am aware there is a nationwide shortage of educational psychologists and the Council is not the only education authority which has experienced a shortage in this area. But I must also note the evidence showing the Council having systemic problems meeting timescales for completing EHC assessments, which pre-date any spike in demand last year. The Ofsted inspection more than three years old, noted problems in service delivery, including education psychology.
39. In addition, the delay in the SEND service receiving education psychology advice could not account for most of the delay in this case. Because that only accounted for between two and three months of delay. Other reasons lay behind the rest of the delay, which the Council did not explain.
40. This in turn highlighted fault in the Council’s communications with Mrs B. When services become stretched and deadlines missed it becomes more important the Council keep children, young people and their parents or carers informed of progress. But the SEND service had failed to keep Mrs B and C informed, giving them no reasons for the delay since July 2024. They were also not told when twice C’s caseworker changed.
41. Also, I found fault in the Council’s complaint handling. First, it should have registered Mrs B’s first expression of dissatisfaction made in March 2024 as a complaint, something it now recognises. Mrs B wanted to complain about delay in the Council completing the EHC assessment. Her complaint met its definition of a complaint set out in its policy and did not fall outside the complaint procedure because of any alternative appeal rights. It was irrelevant that C’s EHC Plan was not late. As Mrs B pointed out the Council must take intermediate steps before issuing an EHC Plan, including issuing a draft version for comment. The Council can therefore be at fault for delay before the 20-week target expires. And more fundamentally, the Council should not conflate someone’s right to complain with the merits of their complaint. So, even when it believes it is not at fault, that is not the measure of someone’s dissatisfaction with its service.
42. Second, the Council mishandled Mrs B’s attempts to pursue her complaint after August 2024, something it again accepts. More than 20 working days had passed since the stage one reply. But the Council could have used discretion to look at the complaint at stage two of its complaint procedure. The Council agrees and says while its current procedure allows for some discretion this is not clear enough and it will review this. It noted my view that a complaint about ongoing delay in the same EHC assessment could provide reasons for exercising discretion.
43. The Council also accepts that even if it could not respond to the complaint at stage two of the procedure, logically it had to offer a further stage one response. Mrs B’s complaint asked the Council to account for why C still had no EHC Plan. So, her complaint asked it to investigate events not previously investigated. The Council should have investigated on that basis alone.
44. I could also see no justification for the Council’s position that investigating a further complaint from Mrs B would have achieved no different outcome for her. It reflected poorly on the Council that it should show no curiosity to want to understand the cause of the further delay in C’s assessment completing, after its Education Psychologist had provided their advice. Also, that it did not consider any other outcome other than an apology for the delay. This suggested an unwillingness or inability by its officers to want to hold the SEND service to account. Such an approach will undermine confidence in the impartiality and effectiveness of the Council’s complaint handling.
45. The Council’s third rejection of Mrs B’s request to escalate her complaint provided further support for this finding. It was unacceptable the Council implied there was no point in Mrs B asking it to investigate further, as there was nothing it could do to ‘influence’ the SEND service.
46. In comments on the draft version of this decision the Council sought to reassure me that it will provide the SEND service with information about themes and trends in complaints. It would also recommend organisational learning when appropriate. It said also that it considered further remedies for a complainant, if they complained after it had issued a final EHC Plan.
47. While noting this, I remained concerned because a complaint procedure should always seek to “influence” a service area that has failed someone, so it can put matters right. I accept at times a council service may be under so much pressure that it is routinely failing, by missing time targets. But against this backdrop there may be times when further fault results from specific and avoidable failings traced back to human or system error. In such cases a complaint outcome might include agreeing to issue an EHC Plan without more delay. This is not the same as complaint officers “instructing” the SEND service on how to do their job. Instead, it ensures complainants return to the position they should be in, had there been no fault besides any service failure caused by pressure on the service.
48. The Council clearly closed its mind to investigating Mrs B’s complaint further in August 2024 and that was a fault.

The injustice caused to Mrs B and C

49. I began by considering the impact on C of the delay in the Council issuing her with an EHC Plan. Starting her further education without this document, meant C would always struggle as the Plan would give teaching staff knowledge of her needs, and strategies to support her.
50. Part of the advice provided by the Education Psychologist was also that C needed a transition plan to bridge the change from secondary to further education. An EHC Plan could incorporate that or support the institution in designing such a transition plan. So, this too was something C did not have before beginning further education in September 2024.
51. The Council’s delay therefore significantly disadvantaged C when she began further education. On balance, I found it resulted in the breakdown of her placement. This was because the evidence showed C could maintain a high level of attendance and achievement while at secondary school, with good support in place. While she did not have an EHC Plan at school, this did not indicate C did not (or does not) need a Plan to support her further education - a point the recognised by the Council when it progressed to issuing her with a draft Plan. All the evidence suggested that with the right support C could and will continue with her education. And I also noted here C demonstrated a real willingness to try and attend further education, but found she could not continue because of the lack of support in place for her. I found therefore C lost three terms of their education by not having the Plan in place when it should have been. That was a significant loss of provision and an injustice to her.
52. I could not say the extent to which the Council’s fault contributed to any mental or physical ill health C experienced, nor that of Mrs B. But I considered the poor and inadequate communications of the SEND service also caused avoidable distress and could have contributed to this. Both Mrs B and C faced (and continue to experience) prolonged uncertainty in not knowing the action taken by the Council to progress the EHC Plan. So, this was a separate a source of injustice for Mrs B (the loss of provision for C also taking account of the distress she experienced).
53. A further injustice arose from the Council’s complaint handling. Mrs B expended unnecessary time and trouble in seeking redress from the Council. She persistently raised her concerns only to find the Council would not investigate, for various reasons that I did not consider withstood scrutiny.
54. I did not consider Mrs B’s injustice extended to that of the impact on her work, or that of Mr B. Clearly, supporting C with her needs impacted on both as they reduced hours or took time off work to care for her. But I could not come to any clear view to what extent that impact arose from the Council’s failings, as distinct from the impact that arose from C’s needs. Although so far as this contributed to Mrs B’s distress as uncertainty, I took account of that when deciding what action the Council should take to remedy her injustice.

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Agreed Action

Personal remedy for Mrs B and C

55. I welcome the Council has accepted my findings. To remedy the injustice set out above it has agreed that within 20 working days of this decision it will:
1. provide separate apologies to both Mrs B and C (see also paragraph 56);
2. make a symbolic payment to Mrs B of £3000 for C’s loss of provision (see also paragraph 57);
3. make a symbolic payment to Mrs B of £500 for her distress;
4. ensure that it issues a final EHC Plan to C;
5. write also to Mrs B and C with a clear explanation of what steps will follow to help C’s transition to begin further education from September 2025. It should also signpost C to any advice and assistance that it provides or is aware of (if provided by another organisation), that might help her prepare for further education taking account of her special educational needs.
56. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice (section 2.3). The Council will consider this guidance in making the apologies above. I find it understandable C will have lost trust in the Council because of her experience and the Council should take particular account of that when writing to her.
57. The symbolic payment agreed at 55b) takes account of our guidance on remedies. Part 5 explains where we identify fault by the Council has resulted in a loss of education provision for a child or young person, we will usually recommend a remedy payment of between £900 and £2400 per term to acknowledge its impact. In this case I decided on a figure of £1000 per term fair, to reflect the loss of provision over a whole academic year. This took account that C had some attendance in further education, although limited; that she should be able to start over in September 2025 with a Plan in place; and that time remained in the current academic year for the Council to support her in getting ready for that.

Service improvements

58. Part of our role is to consider how the Council might improve its service to avoid a repeat of any fault identified. Before considering any wider lessons the Council could learn from this complaint, I noted the outcome of other recent investigations I referred to earlier. The most recent of these led the Council to tell us it had undertaken a “complete restructure” of its SEND service in Autumn 2024. The events of this complaint, which therefore must have taken place during this restructure, did not inspire confidence that this had resulted in a better service for children and young people with special educational needs. However, I accept the impact of restructuring can take time and so it would be too soon to seek further changes in this area.
59. I considered the most relevant lessons the Council could therefore learn from this complaint should focus on how it could better respond to reports from individuals, raising concern with their particular case. In particular, in its complaint handling. The Council has agreed that within three months of a decision on this complaint it will:
1. review the current wording around time limits for bringing a complaint at stage two of the procedure and any discretion to waive these. It will also advise officers that when rejecting a stage two investigation on time grounds, to consider therefore if the issue raised is a new complaint which it should respond to at stage one;
2. issue a briefing to all officers handling SEND complaints (in person and / or in writing) to ensure the Council does not reject complaints at stage one or two because:

• it does not consider it has breached any statutory time limits in the issue of an EHC plan. It should not confuse the merits of a complaint with someone’s right to complain;
• the service faces long delays or other systemic service failure issues. It must investigate individual causes of delay or inadequate communication, to understand and as far as possible remedy those. It must also be open to remedying a complaint with steps other than, or as well as, an apology. The Council will consider the Ombudsman’s complaint handling code, which provides advice on our expectations for remedying complaints (and will become an active part of our investigative process from April 2026) Complaint Handling Code - Local Government and Social Care Ombudsman

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Final Decision

60. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs B and C. The Council has agreed action that I consider will remedy that injustice. So, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman