Summary: Mrs X complained about how the Council met her son, Z’s, special educational needs. There was fault in how the Council took too long to issue Z’s Education Health and Care plan in 2022, and delays in starting speech and language therapy in 2023. This caused Mrs X avoidable frustration and worry for which the Council agreed to apologise and pay her a financial remedy. It also agreed to review how it manages and monitors special educational needs assessments.

The complaint

1. Mrs X complains about how the Council met her son, Z’s, special educational needs. She says the Council:
1. took too long to issue her son’s Education Health and Care (EHC) plan after she asked the Council to assess his needs in late 2021;
2. issued an EHC plan which did not meet her son’s needs;
3. failed to provide all the support set out in Z’s EHC plan while she was appealing to the SEND tribunal between October 2022 and October 2023; and
4. has not arranged all the support set out in Z’s latest EHC plan.
2. As a result, Mrs X says Z started infant school without the right support, went without a suitable education and she was caused significant distress. She wants the Council to apologise and properly recognise the impact on her and Z.

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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. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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), section 34(B)6)
9. 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)

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What I have and have not investigated

10. I have not investigated part b) of Mrs X’s complaint. Mrs X appealed Z’s EHC plan to the SEND Tribunal in October 2022, including about what special education provision he needed and which school he should attend. The law says we cannot investigate something someone has appealed about.
11. I have investigated the other parts of Mrs X’s complaint between late 2021 and January 2024, when she complained to the Ombudsman.
12. I have not investigated new events after Mrs X complained to the Ombudsman. The law says councils should usually be given an opportunity to respond to complaints before we investigate. I consider it would be reasonable for the Council to have an opportunity to respond to Mrs X’s latest complaints first.

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How I considered this complaint

13. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
15. 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 found

Education health and care plans

16. 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.
17. 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
18. 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.

EHC assessments

19. 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 receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• 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 (unless certain specific circumstances apply).
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
20. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s educational placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
21. Those consulted have a maximum of six weeks to provide the advice.

Duty to secure provision

22. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
23. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Reviews

24. Within four weeks of a EHC plan review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)

Appeals

25. There is a right of appeal to the Tribunal against various decisions councils make, including:
• the 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;
• an amendment to these elements of an EHC Plan; and
• a decision not to amend an EHC Plan following a review or reassessment.
26. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
27. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
28. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
29. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example:
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.
30. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

What happened

31. Mrs X’s son, Z, has special educational needs. Mrs X asked the Council to assess Z’s needs in late 2021 with a view to Z having an Education Health and Care (EHC) plan.
32. The Council agreed to assess Z and shared its initial assessment with Mrs X in April 2022, after it received advice from an educational psychologist. Around this time the Council decided to issue an EHC plan for Z.
33. The Council sent Mrs X a draft EHC plan in early May 2022 and consulted with Mrs X’s preferred school, School A.
34. Mrs X sent the Council some comments on the draft EHC plan later in May 2022 and around a week after this told the Council she wanted Z to attend a different school, School B. The Council consulted with School B the following day, but the school did not respond to the consultation until around a month later.
35. Mrs X complained to the Council in July 2022, following which the Council issued a final EHC plan naming School B in early August 2022.
36. Z started attending School B from the start of the September 2022. The school arranged a meeting with Mrs X to discuss how Z’s EHC plan could best be implemented in early October 2022.
37. Following that meeting, Mrs X told the Council she was not satisfied that School B could meet Z’s needs. She also appealed to the SEND Tribunal about sections B, F and I of Z’s EHC plan.
38. In November 2022 Mrs X asked the Council to review Z’s EHC plan and asked for Z to attend a special school, School C. The Council consulted with School C, which responded to say it would be able to meet Y’s needs, but it would not have a place available until September 2023.
39. School B held an early review of Z’s EHC plan in December 2022. In the annual review paperwork the School said those at the meeting agreed that Z needed a different type of school. The School sent its report from the meeting to the Council in mid-January 2023.
40. In March 2023, Mrs X withdrew Z from School B. She told the Council that she did not believe the school could meet Z’s needs or that he was safe at school.
41. The SEND Tribunal issued its decision in mid-October 2023. The Tribunal decided that the Council should make some changes to Z’s EHC plan, including that Z should have some support through a Speech and Language Therapist. At the tribunal hearing, both Mrs X and the Council agreed that Z should attend School C.
42. The Council issued an amended EHC plan naming School C, in early November 2023, and Z started at School C shortly after this.
43. However, due to problems with payment issues, a Speech and Language Therapist did not contact School C or Mrs X until December 2023.

My findings

Delays with Z’s first EHC plan

44. The Council accepted it took too long to issue Z’s first EHC plan after Mrs X’s request for an assessment. It said this delay was because of several reasons, including:
• delays in receiving advice from an educational psychologist (EP);
• Mrs X changing her mind about which school she wanted Z to attend; and
• delays in School B responding to its consultation.
45. The law says, if a council decides to issue an EHC plan, it must do this within 20 weeks of the request for assessment. In Z’s case the Council should have issued his final EHC plan by late April 2022. However, it did not issue the plan until August 2022; over 15 weeks late. This was fault.
46. I am satisfied much of this delay was due to the Council. There is no evidence the Council chased or considered other sources of EP advice when it did not receive this within the expected six weeks. There is also no evidence the Council chased School B when its consultation response was late.
47. Mrs X says the delay in issuing Z’s EHC plan meant there was not enough time for School B to prepare for Z to start in September 2022, because the plan was issued during the school summer holidays. However, I am not satisfied the evidence shows the delay in issuing Z’s EHC plan led to any significant delays in School B preparing for his September 2022 start. It is unlikely that, if the Council had issued the plan in April 2022, the School would have taken steps at that time to prepare for a new pupil who was due to start in the next school year. Evidence from the review in October 2022 shows that Z was settling in well at School B, even though Mrs X believe he needed different support.
48. I am satisfied the delays in issuing Z’s 2022 were frustrating for Mrs X and delayed her right to appeal to the SEND Tribunal. However, I do not consider the delay to Mrs X’s appeal right caused Z to miss out on any education or support. The Council named Mrs X’s preferred school in the 2022 EHC plan, and only after Z had started there did Mrs X change her mind about the type of school she wanted him to attend. Although the Tribunal made some changes to Z’s EHC plan during the appeal, these were based on new evidence obtained much later and were partly based on Mrs X’s new request for a special school.
49. Therefore, while I am satisfied the delays caused Mrs X some avoidable frustration, I do not consider they caused any other injustice.

Securing the provision in Z’s 2022 EHC plan

50. The Ombudsman’s role is to investigate whether special education provision has been secured by the Council, not the day-to-day details, which would be for the School to decide. We also cannot decide on which school was suitable for Z, that was for the Council to decide. Instead, we must consider whether the Council has made its decisions properly.
51. The evidence shows the Council arranged for Z to attend Mrs X’s preferred school, School B, as named in his 2022 EHC plan. It funded the School to deliver the provision in Z’s plan and attended an implementation meeting shortly after he started attending to review how the support was being provided.
52. The notes of that meeting show, in my view, that the School was using the techniques and strategies set out in Z’s EHC plan. Most of Mrs X’s comments at the meeting were about what support Z needed and what she believed should be in his EHC plan, rather than whether the School was providing what was written in the plan at the time.
53. Therefore, my view is that the Council secured the provision in Z’s EHC plan from the start of the 2022 school year.
54. School B held a review of Z’s EHC plan in December 2022 and shared the report of this review with the Council around a month later; later than the two weeks in which it should have done. However, there is no evidence the Council chased up the overdue report, or made a formal decision about whether to make changes to Z’s EHC plan. Those failures were fault.
55. However, I do not consider that fault caused Mrs X or Z an injustice. The Council explained to Mrs X during the tribunal appeal that it considered School B was able to meet Z’s needs in the short term, until he could start at School C. This was a decision the Council was entitled to make and I do not consider there was fault in how the Council made that decision. Since Mrs X had already appealed Z’s school placement to the SEND Tribunal, I do not consider the failure of the Council to issue a formal decision following the review caused Mrs X to miss out on any appeal rights.
56. Mrs X withdrew Z from School B in March 2023 because she did not consider it was suitable for him. Since she had already appealed this issue to the Tribunal, I cannot consider any education Z missed either as a result of either the Council’s decision to name School B in his EHC plan, or as a result of Mrs X’s decision to withdraw him from school.

Securing the provision in Z’s 2023 EHC plan

57. The Council issued an amended final EHC plan, naming School C, within the allowed five weeks following the tribunal decision in late 2023. It also arranged for Z to attend School C.
58. Mrs X complained to the Council, in November 2023, that it had failed to arrange the Speech and Language Therapy (SaLT) set out in the amended EHC plan.
59. The Council accepts there was a delay of around a month in arranging the SaLT due to problems with arranging payments to the provider. The evidence shows the therapist first contact the School and Mrs X in early December 2023, rather than in November 2023, when they should have done.
60. Z’s 2023 EHC plan allows for around 30 – 60 minutes of SaLT each week, so the delay meant that Z missed out on between around two and four hours of SaLT at the start of his time at School C. I accept that was frustrating for Mrs X, but I do not consider that this caused a significant injustice for Z. Given Z’s age, the amount of SaLT he missed and the amount of SaLT set out in his EHC plan, I am satisfied the delayed can likely be made up for in his future SaLT provision.
61. Mrs X later complained to the Council that School C is not delivering other parts of Z’s EHC plan, after she complained to the Ombudsman. I have not investigated Mrs X’s latest complaint, as I am satisfied it would be reasonable for the Council to have an opportunity to respond to the complaint first.

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Agreed action

62. Within one month of my final decision the Council will:
• apologise to Mrs X for the frustration and worry caused by the delays in issuing Z’s first EHC plan and the delay in arranging the Speech and Language Therapy in late 2023;
• pay Mrs X £400 to recognise that distress.
63. Within three months of my final decision the Council will review its procedures for EHC assessments and preparing EHC plans to ensure it completes assessments and issues EHC plans within the required legal timescales.
64. The Council should provide us with evidence it has complied with the above actions.
65. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

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Final decision

66. I have completed my investigation. There was fault in how the Council took too long to issue Z’s EHC plan in 2022, and delays in starting Speech and Language Therapy in 2023. This caused Mrs X avoidable frustration and worry for which the Council agree to apologise and pay her a financial remedy. It also agreed to review how it manages and monitors special educational needs assessments.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman