Summary: Mrs X complained the Council failed to provide an education for her son, Y, for two and half years, delayed issuing an Education, Health and Care (EHC) Plan and then issued it without all the relevant information and named a school Y would not attend. Mrs X also complained the Council delayed taking action after it completed mediation about the EHC Plan. The Council was at fault for delaying to issue Y’s EHC Plan, delaying taking action following mediation and failing to maintain oversight of alternative provision Y was receiving. This caused Mrs X avoidable frustration and uncertainty. The Council will apologise, make a symbolic payment and take action to improve its service.

The complaint

1. Mrs X complained the Council failed to provide an education for her son, Y, for two and half years, delayed issuing an Education, Health and Care (EHC) Plan and then issued it without all the relevant information and named a school Y would not attend. Mrs X also complained the Council delayed taking action after they completed mediation about the EHC Plan. Mrs X states this caused Y to miss out on education and specialist provision, impacted his wellbeing and caused the whole family distress. Mrs X wanted the Council to provide Y with a school place.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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)
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 complaint about the Council’s actions before August 2023, which includes any delay in the Council completing the EHC needs assessment. These complaints are late and there is no good reason to investigate them now. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. I have not investigated Mrs X’s complaint about the content of the EHC Plan, including the school it specified. This is because Mrs X had a right of appeal to a Special Educational Needs and Disabilities (SEND) Tribunal about the content of the Plan, and it was reasonable for her to use that right of appeal. 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)
10. I investigated Mrs X’s complaints about the Council’s delay in issuing Y’s EHC Plan, delay in completing actions after mediation and the education Y received, between August 2023 and October 2024 when the Council issued a final EHC Plan for Y.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance and our guidance on remedies published on our website.
12. Mrs X and the Council have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plans

13. 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. 
14. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement. 

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: 

• Where the council has agreed to carry out an EHC needs assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks. If it decides to issue a Plan it should provide a draft EHC Plan.
• 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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
• The council must issue a final EHC Plan within four weeks of the draft being issued. 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 (unless certain specific circumstances apply).

Naming a school in the EHC Plan

16. The child’s parent or the young person can ask for a school of certain types to be named in the Plan. This includes maintained schools and academies, non-maintained special schools, and independent schools approved by the Secretary of State and published in a list – referred to as Section 41 list. Parents can also ask for an independent school that is not on Section 41 list to be named and the council must consider their request. The council is not under the same conditional duty to name the school but must consider the parents’ wishes. Schools and providers not on the Section 41 list are not subject to the duty to admit a child or young person even if named in their EHC Plan.

Appeals and mediation

17. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN (section B), the special educational provision specified (section F), the school or placement or that no school or other placement is specified in their EHC Plan (section I).
18. 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. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
19. When a child or young person’s parent informs the council they wish to pursue mediation, the council must arrange mediation within 30 days of the request.
20. The SEND regulations set out that the council officer attending the mediation must have the authority to resolve the mediation issues (regulation 37). The mediation adviser will issue a mediation certificate within three working days of the conclusion of the mediation.
21. If during mediation a council agrees to amend the special educational provision in the EHC Plan (section F) it shall issue the amended EHC Plan within five weeks of the mediation agreement (regulation 42 and 44).

Alternative provision

22. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
24. We made recommendations which included that councils should:

• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions about alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

25. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

Relevant prior events and background information

26. Y is a child of primary school age. Y was on roll at School 1, a mainstream primary school. Y has special educational needs that affect how he is able to manage different environments.
27. In 2023 the Council agreed to compete an Education, Health and Care (EHC) needs assessment for Y. In the summer term the Council met with School 1 and Mrs X and discussed Y. Records show that Y was not able to attend School 1 but was attending an alternative provision that School 1 had arranged. The records show Y was attending Alternative Provision 1 (AP 1) for one day a week and Alternative Provision 2 (AP 2) for half a day a week which was working well for Y. School 1 agreed it would keep Y on roll and arranged provision until the Council issued an EHC Plan for Y and the correct placement was found for him. The Council said it would issue an EHC Plan for Y at the end of June 2023.

Events from August 2023 onwards.

28. Mrs X told the Council in August 2023 that School 2 (an independent special school – not on the Section 41 list) was her parental preference. Mrs X also told the Council the alternative provision for Y from September 2023 was only going to be one day at AP 1 as School 1 could not fund more. Mrs X asked the Council to fund an additional day at AP 1 and two days at AP 2. The Council told Ms X it had decided to issue an EHC Plan for Y and sent a draft EHC Plan in August 2023.
29. The Council made enquiries with School 1 about the provision for Y and asked for information on any other provision Y needed. School 1 said ‘[AP 1 and AP 2] do address his needs to develop relationships with 'educational' settings and be able to take direction from people’. School 1 told the Council they could not see Y returning to mainstream school at all.
30. The Council agreed Y should receive two days at AP 1 and two days at AP 2 per week while it consulted schools to name in his EHC Plan from September 2023. The Council consulted several schools for a placement for Y including School 2.
31. The Council records show that there was confusion and disagreement about whether the Council or School 1 should arrange and fund the alternative provision and what provision Y actually received between September and December 2023.
32. The Council records suggest Y attended AP 1 for one day a week and AP 2 for two days a week between September and December 2023. There is no explanation of why Y did not attend AP 1 for two days as agreed.
33. The schools the Council consulted either did not respond or could not offer Y a place. At the beginning of December 2023 the Council told Mrs X it would consult School 3 (a special school) and would consider additional alternative provision for Y for the next school term.
34. The Council considered Y’s alternative provision and agreed from January 2024 Y should attend; one and a half days at AP 1, two days at AP 2 and half a day at a new alternative provider (AP 3) per week – four days in total.
35. School 2 told the Council it could not offer Y a place at the end of January 2024.
36. School 1 told the Council at the beginning of February 2024 the alternative provisions wanted to review Y’s progress and targets.
37. The Council contacted Mrs X to discuss a placement for Y at School 3 and issuing his EHC Plan. Mrs X told the Council her parental preference was now School 4 (an independent school - not on the Section 41 list) and asked the Council to send it a consultation. Mrs X said she told the Council Y had an appointment with a specialist about his SEND imminently and asked the Council to wait for the outcome of that appointment before issuing Y’s final EHC Plan. The Council’s record of the call referred to the appointment, with a query if this could be added to the Plan. The case notes stated the Council would not consult with School 4, but did not explain why, and that Mrs X did not want Y to attend School 3.
38. The Council consulted School 3 and it offered Y a place.
39. The Council issued Y’s EHC Plan at the end of February 2024. It said he should attend School 1 and School 3. The Council explained a place was available for Y at School 3 from September 2024. The Council told School 1 to review Y’s alternative provision. Mrs X requested mediation to change section B, F and I of Y’s EHC Plan.
40. AP 1 raised concerns about Y’s engagement and the next steps in his provision the same week. It asked the Council for an update and said the provision had not been reviewed that year.
41. The mediation meeting occurred in early April 2024. The record of the meeting stated the Council officer attending the mediation would take the amendments requested in the meeting to a mediation panel at the end of the month and then would feedback to Mrs X.
42. The mediation action plan from the meeting included:
• Identify and explain why it did not consult School 4 on Mrs X’s request;
• Use a team around the family meeting scheduled for mid-April 2024 to gather information on changes to sections B and F of the Plan; and
• Tell Mrs X if it would now consult with School 4 or not.
43. Following the mediation panel at the end of April 2024 the Council told Mrs X it had decided to overturn its decision and withdraw the final EHC Plan and would amend it. It said it would allocate an assessment and review officer to do so. Mrs X asked the Council to consult School 4 as her parental preference.
44. Mrs X contacted the Council numerous times in May and June 2024 requesting an update or the contact details for the assessment and reviewing officer, without any substantive response from the Council. In mid-June 2024, having been provided with some contact details, Mrs X sent the Council her requested amendments to the Plan again and repeated the request for the Council to consult School 4.
45. School 1 told the Council that Y was not attending the alternative provisions in mid-June 2024, and asked what the plan was for him for September 2024.
46. Mrs X complained to the Council at the beginning of July 2024. Mrs X said Y had not been able to attend school for two years. She said the Council had not consulted School 4 as parental preference and issued the EHC Plan without all the information despite her request to wait for the outcome of the SEND appointment. Mrs X said the Council had delayed reviewing the EHC Plan after a mediation agreement, had not complied with the statutory timescales and had not communicated with her.
47. Three days later the Council sent a consultation to School 4.
48. The Council responded to Mrs X’s complaint in mid-July 2024. It said it did not consult School 4 as it had already prepared the draft EHC Plan. It said it only had to consult schools at the point it issued the draft EHC Plan which it did in August 2023. It said it was not intending to name School 4 as School 3 had already offered a place for Y. It said it could not find a record that it had agreed to wait for the outcome of the SEND appointment before finalising Y’s EHC Plan. The Council accepted it had delayed amending the Plan after the mediation agreement and delayed contacting Mrs X, which it said was due to a lack of capacity and apologised. It did not refer to Mrs X’s complaint that Y had not been able to attend school for two years.
49. Mrs X was dissatisfied with the Council’s response and complained again. She asked why the Council had consulted School 3, but not School 4 outside of the draft Plan timescales. Mrs X pointed out the Council had still not issued Y’s final EHC Plan and had not specified what action it would take. Mrs X explained the impact on the family was significant in terms of their mental health and Mrs X reduced earnings due to Y not attending school.
50. The Council said at the end of August 2024 neither School 3 or 4 had responded to the recent consultations and so Y would remain on roll at School 1 receiving alternative provision in the meantime. It asked School 1 for information on appropriate alternative provisions for Y as it was aware some were not working well.
51. Mrs X told the Council Y had not accessed one of the two days at AP 2 for quite some time and the second day had been ‘hit and miss’. She said Y had not been able to attend AP 1 for two days, but enjoyed the one day he was attending. Mrs X requested two days at AP 2, one day at AP 1 and one day at AP 3.
52. The Council responded to Mrs X’s complaint at the beginning of September 2024. It said it should have consulted School 4 on Mrs X’s request. It said it was developing training for new staff on Section 41 schools and was considering refresher training for existing staff. The Council apologised. It said it was not clear from its records that it had said it would wait for the outcome of the SEND appointment to issue Y’s EHC Plan and upheld the complaint as it agreed its communication with Mrs X could have been better. It said it had since consulted with School 4 and the delay in issuing the final EHC Plan was due to School 4 not responding until later that month. It apologised for the delay.
53. Mrs X contacted the Council three times in the first two weeks of September 2024 to ask for the Council to make arrangements with the alternative providers, otherwise Y could not attend. The Council consider the alternative provisions and agreed Mrs X request in mid-September 2024. The records are unclear about what, if any, provision Y received during the first two weeks of the new school year. Ms X stated Y did not receive any provision.
54. At the beginning of October 2024 the Council issued a final EHC Plan for Y. It named School 3 as the school Y should attend. The EHC Plan recorded Y had been attending two and half hours at AP 1 and two hours at AP 2 a week. The Council informed Mrs X about her appeal rights to the SEND Tribunal if she disagreed with the content of the Plan. Mrs X appealed to the Tribunal about the school named in Section I of the Plan.

My findings

Delay

55. I have not investigated matters that occurred prior to August 2023. I have considered the Council’s actions after it issued a draft EHC Plan for Y. The Council sent its decision to issue Y EHC Plan and a draft Plan in August 2023. In line with the statutory guidance the Council should have gone on to issue the final Plan within four weeks. The Council did not issue Y’s final Plan until February 2024 which was a delay of four and a half months.
56. Mrs X requested mediation and a mediation meeting was held one month later. The regulations say the Council Officer attending must have the authority to resolve the mediation issues, the meeting should be held within 30 days and the certificate issues within three working days. The Council did not resolve the issues in the meeting but instead considered them at a mediation panel meeting, four weeks later. The additional step in the decision-making process was not in line with the SEND regulations, was fault and contributed to additional delay.
57. As the Council had agreed to amend section F of Y’s EHC Plan at mediation, in line with the regulations it should have issued an amended final Plan within five weeks of the mediation meeting, so by mid-May 2024. The Council did not issue a final Plan until October 2024 which was a further delay of four and a half months.
58. The overall delay in the Council issuing the EHC plan was nine months. The delay caused Mrs X frustration and distress and delayed her appeal rights to the SEND Tribunal about the content of the EHC Plan. I cannot say what injustice this caused Y, as I can not know what the outcome of the SEND Tribunal would have been had Mrs X rights not been delayed.

Consultation

59. I have not considered the suitability of the school named in Section I of the EHC Plan as that is a matter for the SEND Tribunal, and Mrs X has already used that appeal right. However, the Council has accepted fault in not consulting School 4 as Mrs X parental preference. The records show the Council did not consult School 4 initially as it was intending to name School 3, that was fault and caused Mrs X frustration as the Council should have considered the request. The Council has already apologised, and subsequently consulted with School 4 which is an appropriate remedy.

Alternative provision

60. In September 2023 the records show Y was not able to attend School 1 and School 1 had arranged alternative provisions prior to the period of this investigation. The records show the Council considered the alternative provision in place for Y in September 2023 and decided Y needed additional alternative provision. It considered Mrs X’s request for alternative provision, confirmed the suitability with School 1 and agreed the provision. There was no fault in those actions.
61. The Council should have kept the alternative provision under review and ensured it retained oversight and control of the provision in line with our guidance. The records show the Council agreed Mrs X’s request for alternative provisions again in January 2024 and October 2024. However, the Council’s records are unclear about what Y was able to access throughout those periods with reference to days not being attended and the October 2024 EHC Plan stating he only accessed four and half hours of provision. There is no evidence the Council properly considered the suitability of the provisions, kept it under review, or attempted to increase the amount of provision Y was accessing or to reintegrate Y back into education which is fault and leaves uncertainty for Mrs X between January 2024 and October 2024. I cannot say what would have been different for Y, had the Council properly consider the provision on offer to him, as I cannot know what decisions the Council would have made or what Y would have accessed, given he was not able to access all the provision on offer.

Communication and complaint handling

62. The records show Mrs X regularly contacted the Council without any response for periods of time. This was particularly following the mediation meeting, which the Council has accepted and explained was due to a lack of capacity within its team.
63. The Council considered Mrs X complaint and upheld some of it, but failed to consider the impact of the fault on Y or Mrs X and did not provide a resolution or action plan for matters including issuing the delayed final EHC Plan, it did not respond to Mrs X’s complaint about Y being out of education at all.
64. The Council’s poor communication and complaint handling was fault and caused Mrs X frustration and distress.
65. Mrs X stated she asked the Council to wait for the outcome of a SEND appointment to issue the EHC Plan as the outcome would have been relevant. The Council’s records do not show whether it agreed to wait to issue the Plan and so I cannot make a finding on that point and further investigation would not lead to a different outcome. In addition Mrs X had the opportunity to raise the matter at the mediation meeting, and subsequently had an appeal right to the SEND Tribunal if she wanted additional information to be included in the EHC Plan.

Previous recommendations

66. In other recent investigations we have made service improvement recommendations to the Council about how it considers and monitors alternative provision and action to address staffing capacity in its EHC team. I have therefore not repeated those recommendations here. We will continue to monitor these points through our casework.

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Agreed Action

67. Within one month of this decision the Council will write to Mrs X and apologise for the avoidable frustration caused to her by the Council’s delay and poor communication, and for the uncertainty she was caused about the suitability of Y’s alternative provision for two terms. The Council will pay Mrs X a symbolic amount of £600 to recognise the same. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
68. Within three months the Council will review how it conducts mediation and ensures mediation is conducted in line with the regulations set out in paragraphs 18 to 21, and that Council officers attending have the authority to make a decision.
69. The Council will provide us with evidence it has complied with the above actions.

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Decision

70. I find fault causing injustice. The Council has agreed to my recommendations to the to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman