Summary: We will not investigate Mr X complaint about delay in issuing an Education Health and Care Plan. We are unlikely to achieve a significantly different remedy than already offered. We cannot investigate the content of the EHC Plan. And it is unlikely we would find fault in the Council’s decision not to offer alternative education.

The complaint

1. Mr X says the Council has unreasonably delayed in producing an Education Health and Care Plan (EHC Plan) and failed to provide a suitable education meantime.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.

Back to top

How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Mr X’s child, D, has extra needs. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
8. Mr X asked the Council to carry out an EHC Plan needs assessment in February 2023. The Council refused, but at a mediation meeting in June agreed to do so. The Council provided its final EHC Plan in May 2024. This is over the regulation timescales. The Council says its delay was due to a shortage of educational psychologists. The Council in reply to Mr X’s complaint offered £1000 for the delay. This is in line with our guidance on remedying frustration and delay in EHC Plan cases. Our investigation is unlikely to achieve more.
9. Mr X says the EHC Plan does not meet D’s needs. They have appealed to the Tribunal. This means we cannot investigate why the Council worded the EHC Plan as it did. This includes the quality and extent of any assessments which fed into that EHC Plan.
10. Mr X says the Council should have provided alternative education provision from when D was out of school in January 2024.
11. The courts have settled 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)
12. 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.
13. 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.
14. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
15. The Council say it did not need to apply section19 in the period before it issued its EHC Plan as the school was providing extra support. Whether this, or an alternative form of education, is at the heart of Mr X Tribunal appeal. We are unlikely to find Council fault in its section 19 duty.

Back to top

Final decision

16. We will not investigate Mr X’s complaint because we are unlikely to achieve a significantly different remedy than already offered. We cannot investigate the content of the EHC Plan. And it is unlikely we would find fault in the Council’s decision not to offer more alternative education in the four months leading up to the EHC Plan publishing.

Back to top

Investigator's decision on behalf of the Ombudsman