Summary: Miss Y complained about the way the Council dealt with Z’s Education, Health and Care needs assessment and the special educational provision in their Education Health and Care Plan. We have found fault by the Council, causing injustice, in failing to: consult with school A or other schools before issuing the final EHC Plan in 2023; properly consider Miss Y’s request for free school transport; and deliver the SEN provision in Z’s EHC Plan. The Council has agreed to remedy this injustice by apologising to Miss Y, making payments to reflect the impact on Z of the missed SEN provision and the time and trouble, travel costs and distress caused to Miss Y and a service improvement.

The complaint

1. The complainant, Miss Y complains about the way the Council dealt with her child, Z’s Education, Health and Care (EHC) needs assessment and the special educational provision in their Education Health and Care (EHC) Plan. Miss Y says the Council failed to:

• complete the EHC needs assessment process within the statutory timescales;
• consult with her preferred school before naming it in the final EHC Plan;
• obtain proper information about other suitable schools before telling her she should pay for Z’s travel to the school named in the EHC Plan;
• deliver the special educational provision in Z’s EHC Plan from September 2023 to date; and
• complete the EHC Plan review process within the required timescales following the emergency review on 21 February 2024.

2. Miss Y also says, because of the Council’s failures:

• Z was placed in a school which could not meet their needs and has not received all the special educational provision in their EHC Plan. This has affected Z’s educational progress and wellbeing; and
• she has had to pay for advice and help to ensure the Council meets its duties regarding Z’s special educational provision. She has had to leave her job to support Z. The Council’s failures have caused her significant stress and affected her wellbeing.

3. Miss Y wants the Council to put things right by finding Z a new school which can meet their needs, without any further delay. It should also pay financial redress for the stress caused, the cost of her leaving work and paying for advice.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
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 suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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).

Back to top

How I considered this complaint

8. I spoke to Miss Y, and made enquiries of the Council, and read the information Miss Y and the Council provided about the complaint.
9. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

Back to top

What I found

What should have happened

Special educational needs

10. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
11. 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.

Timescales and process for EHC assessments

12. 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.
13. The Code says: 

• 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). 
• 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.

Naming a school in an EHC Plan

14. The Code says councils must comply with a parent’s request for a particular school and name this school in the EHC Plan unless:

• it would be unsuitable for the child’s needs; or
• the attendance of the child there would be incompatible with the efficient education of others or the efficient use of resources.

15. Councils must consult with the school concerned, sending it a copy of the draft plan, and consider its comments very carefully before deciding whether to name it in the EHC Plan.

The special educational provision in an EHC Plan

16. Councils have 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).
17. 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. But 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. 

Free school transport for a child with an EHC Plan

18. Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
19. If only one school is named in a young person’s EHC plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.)

Reviewing EHC Plans

20. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan.
21. Where the council proposes to amend an EHC Plan, it must send the child’s parent or the young person details of the proposed amendments within four weeks of the date of the review meeting.
22. It must then issue the final Plan within eight weeks of the notice of amendments (and within twelve weeks from the date of the review meeting).

What happened

23. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

March to August 2023: Miss Y’s request for an EHC needs assessment

24. The Council received Miss Y’s request for an EHC needs assessment for Z on 29 March.
25. It told Miss Y on 5 May it had decided to carry out the assessment.
26. After completing the assessment, the Council told Miss Y on 3 August it would issue Z with an EHC Plan.

3 August 2023: Issue of Z’s draft EHC Plan

27. Z was due to move from primary to secondary school in September 2023. Miss Y expressed a preference for school A. She also asked about Z’s entitlement to free school transport.
28. On 2 August, the caseworker drafting Z’s Plan told Miss Y if school A was not Z’s local catchment school, it was unlikely the Council would agree to free transport. They said they would need to consult with school A and the local catchment school (school B), about their ability to meet Z’s needs. Miss Y said she didn’t think school B could meet Z’s needs and school A was the appropriate placement.
29. The Council issued Z’s draft plan on 3 August. Miss Y submitted her comments on 10 August. She asked the Council to name school A as Z’s placement in the final EHC Plan.

18 August 2023: Issue of Z’s final EHC Plan

30. The final EHC Plan issued on 18 August named school A as Z’s placement. The special educational provision set out in section F of the Plan included:

• Daily 30-minute 1:1 literacy support sessions;
• Additional adult support in every lesson;
• Teaching Assistant (TA) support in core subjects;
• Daily 10-minute mentor sessions;
• Weekly 30-minute mindfulness sessions;
• Weekly 40-minute emotional literacy sessions; and
• Advice and input from an Occupational Therapist regarding a sensory diet, understanding about activities to help Z feel calm, impact on their learning, their need for movement and sensory seeking activities, recording ideas and keeping safe in local community.

September/October 2023: Miss Y’s school transport appeal

31. Z started at school A in September.
32. The Council refused Miss Y’s application for free school transport for Z because it said school A was not Z’s closest appropriate school. Miss Y appealed but the Council upheld the decision at stage 1 of its review procedure.
33. The Council told Miss Y school B, the closest catchment school, was able to meet Z’’s needs although it had not consulted school B about this.
34. Miss Y took her appeal to stage 2 of the review procedure. On 30 October the Council decided the appeal should be allowed and Z provided with free transport to school A. It said this was because of Z’s extra support needs and the lack of other suitable schools willing to provide them with a place.

October 2023: Miss Y’s concerns about the delivery of Z’s provision

35. Miss Y contacted the Council on 8 October with her concerns school A was not delivering all the special educational needs (SEN) provision in Z’s EHC Plan.
36. She said the school had told her it was not able to deliver Z’s SEN provision and, had it been consulted about the proposed Plan before it was issued, it would have advised the Council it could not meet all Z’s needs.
37. Miss Y provided details of Z’s SEN provision which was not being delivered. This included:

• Daily 1:1 30-minute literacy intervention;
• Additional adult in every lesson;
• TA support in core lessons;
• Daily 10-minute mentor sessions;
• Weekly 30-minute mindfulness sessions;
• Weekly 40-minute 1:1 emotional literacy sessions;
• Weekly 30-minute catch-up sessions with a staff member; and
• Sensory diet advised by the OT service.

38. The Council told Miss Y it would obtain advice about how school A could deliver Z’s provision and arrange a meeting with her and the school about her concerns.
39. On 19 October Miss Y chased the Council about a date for the proposed meeting. She told it Z was now struggling at school because of the lack of support.

November/December 2023: Meeting to discuss Miss Y’s concerns

40. I understand a meeting about the delivery of Z’s SEN provision took place in November. I haven’t seen any record of the meeting.
41. In December the Council sent Miss Y a proposed amended EHC Plan. It referred to the recent meeting and said the amended plan was more reflective of how Z’s needs were being met by the school, but it was not seeking to finalise this until after the next annual review meeting.
42. Miss Y told the Council she objected to the proposed changes. She said she expected it to take action to ensure the delivery of all the SEN provision in Z’s current EHC Plan. And it should put in place any additional funding school A needed to do this.

January 2024: Miss Y’s complaint to the Council

43. Miss Y made a complaint to the Council about its failure to deliver the SEN provision in Z’s EHC Plan. She confirmed the missing provision in October was still not being made.
44. In response to her complaint, the Council told Miss Y it would arrange an emergency annual review.

February/March 2024: Emergency annual review

45. The emergency review meeting took place on 21 February. The school said it required additional funding to deliver the 1:1 support and other parts of the SEN provision in Z’s Plan.
46. The Council told Miss Y on 19 March it had decided to amend Z’s Plan. But it did not send her the proposed amendments.

March 2024: Miss Y’s further complaint to the Council

47. Miss Y complained about the Council’s continued failure to deliver Z’s SEN provision, and its failure to issue the amended EHC Plan within four weeks of the review meeting, in accordance with the statutory timescale.

April 2024: Council’s response to Miss Y’s complaint

48. The Council sent Miss Y its proposed amended plan on 3 April and consulted with school C, which was now Miss Y’s preferred school.
49. In its response to Miss Y’s complaint, the Council said it:

• accepted it had failed to provide the proposed amendments within the required timescale (by 20 March);
• was required to issue the final plan within eight weeks of the notice it would amend the plan. It had to allow her 15 days to comment on the draft plan; and
• was working with her now on the amended EHC Plan and consulting with her preferred placement (school C)

50. Miss Y was not satisfied with the response and brought her complaint to us.

Position following Miss Y’s complaint to us

51. The Council issued Z’s final amended EHC Plan on 6 June 2024. This included provision for support from a full-time TA. It continued to name Z’s placement as their current mainstream school. It advised Miss Y she had the right to appeal to the SEND Tribunal about the placement and/or the provision in the Plan.
52. I understand the Council agreed additional funding for school A to provide a 1:1 TA to deliver the SEN support in Z’s EHC Plan.

My view – was there fault by the Council causing injustice?

Delay completing Z’s EHC needs assessment in 2023

53. There was no delay by the Council in telling Miss Y it had decided to carry out an EHC needs assessment. It was required to do this by 10 May and did so on 5 May.
54. There was some delay by the Council in sending Miss Y the draft EHC Plan. It was required to do this by 17 July, but did not do so until 3 August, some two weeks late. The Council says this was due to a delay in receiving the Educational Psychologist’s report.
55. It was required to issue the final EHC Plan by 16 August (20 weeks from receipt of the EHC needs assessment request). It did not do so until 18 August, two days late.
56. Although the process was not completed strictly within the statutory timescales, I note Miss Y was given the required time to submit her comments on the draft. I don’t consider the short delays amount to fault in this case, or that this caused Miss Y any material personal injustice.

Delay completing the emergency review process in 2024

57. There was some delay by the Council in sending Miss Y the amendments it proposed making to Z’s EHC Plan following the review meeting on 21 February. It should have done this by 20 March, but did not do so until 3 April, two weeks late.
58. It should then have issued the final plan by 29 May, but it did not do so until 6 June 2024.
59. Although the process was not completed strictly within the statutory timescales, I don’t consider the short delays amount to fault in this case, or that this caused Miss Y any material personal injustice.

Failure to consult with schools before issuing the final EHC Plan

60. The Council should have consulted school A, as Miss Y’s preferred school, sent it the draft plan and considered its comments, before naming it as Z’s placement in the final plan.
61. But the Council did not consult with school A, or any other school, before naming it in the final plan in August 2023. The failure to consult with school A or any other school was fault.
62. Because of this failure, the Council named school A as Z’s placement without first establishing whether it could meet Z’s needs. And School A made it clear, once Z started, it could not deliver the SEN provision in Z’s EHC Plan without additional funding.
63. And by failing to consult with any other schools, the Council failed to establish whether there was a school closer to Z that could meet their needs and offer them a place.

Failure to properly consider Miss Y’s request for free school transport

64. The Council’s initial decision to refuse Miss Y’s application for free school transport was based on incorrect information – that school B was the closest suitable school. It had no evidence school B could meet Z’s needs, because it had not consulted it about this.
65. In my view, the Council’s failed to properly consider Miss Y’s application and make its initial decisions based on accurate information. This failure was fault.
66. Because of this failure, Miss Y had to go to the time and trouble of pursing a complaint and appeal against the Council’s initial decision. She also had to arrange Z’s transport to school A until the Council agreed to provide free transport.

Failure to deliver the special educational provision in Z’s EHC Plan

67. I have not seen anything showing there is any dispute by the Council it failed to ensure the delivery of the SEN provision in Z’s EHC Plan from September 2023. Miss Y raised this as a concern soon after Z started at school A and the school itself confirmed it could not deliver the provision without additional funding.
68. It is disappointing to note the lack of action by the Council to resolve the issues. It knew in October 2023, from its contact with Miss Y and the school, the majority, if not all, of Z’s provision was dependent on 1:1 support, which was not in place.
69. It appears to have initially tried to deal with this by issuing a proposed amended plan in December 2023 removing support the school was unable to provide, instead of urgently addressing how the provision in the current plan could be delivered.
70. The Council’s failure to deliver the SEN provision in Z’s Plan from September 2023 was fault.

Impact of the failure to deliver Z’s SEN provision

71. Because of the Council’s failures, Z did not receive the most important part of the provision in their EHC Plan – 1:1 support from a TA and other appropriate staff. They also missed out on the sensory diet devised by an OT.
72. I consider this missing provision had a significant impact on Z. They had just moved up from primary to secondary school, a key transfer for any child. Miss Y reported how Z was struggling at school without the support in their EHC Plan.
73. We usually consider a remedy payment of between £900 and £2,400 a term is appropriate to reflect the impact of missed provision on the child or young person. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
74. Given the extent of the impact on Z of the missed provision I consider a payment at the top of the range is appropriate for the period from the start of the school year in September 2023 until 6 June 2024 when the amended final plan was issued.
75. The Council’s failures, in my view, also had an impact on Miss Y. She was caused distress by the failure to make sure Z received the SEN support and provision in their EHC Plan.

Back to top

Agreed action

76. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Miss Y for its failures to: consult with school A or other schools before issuing the final EHC Plan in 2023; properly consider Miss Y’s request for free school transport; and deliver the SEN provision in Z’s EHC Plan. This apology should be in line with our guidance on Making an effective apology;
2. pay Miss Y, on Z’s behalf, £6,000 (based on a payment of £2,400 a term from September 2023 to 6 June 2024 – 2.5 terms) This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them;
3. pay Miss Y £260 to reflect the time and trouble and cost of pursing her request for free transport, and arranging Z’s transport until the request was agreed; and
4. pay Miss Y £350 to reflect the distress caused by its failures. This is a symbolic amount based on our guidance on remedies
77. And within three months from the date of our final decision, the Council has agreed to:
1. share this decision with its SEN officers and remind them of the requirement to consult with schools about their ability to meet a child or young person’s needs before naming the school in a final EHC Plan.
78. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

79. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman