Summary: Mrs X complained the Council failed to ensure her child D, a young adult with disabilities, received suitable education and support for their special educational needs. There was fault by the Council which caused D to miss special educational needs support. It also caused distress to D and Mrs X. The Council agreed to apologise and pay a financial remedy. It will also review why it delayed in completing an Education, Health, and Care needs assessment in D’s case and produce an action plan to prevent recurrence of the same fault.

The complaint

1. Mrs X complains on behalf of her child D, who is a young adult with disabilities. Mrs X says the Council failed to ensure D received suitable education and support for their special educational needs (SEN), in 2023 and 2024. Mrs X says the Council:
1. delayed in assessing D’s Education, Health, and Care (EHC) needs and issuing an EHC Plan after Mrs X asked it to in late-2022;
2. did not properly consider Mrs X’s request for a personal budget so she could arrange D’s SEN support herself, or explain its decision about this; and
3. issued a final EHC Plan in late-2024 which did not meet D’s needs.
2. Because of this Mrs X says:
• D missed education and SEN support and missed the opportunity to complete their A levels. This caused them distress and it will take them longer to gain qualifications; and
• Mrs X experienced distress which affected her health. She spent time and trouble chasing the Council. She experienced financial loss because she paid for some SEN support for D herself, lost out on child benefit because D was not in full time education, and could not work full time while supporting D.
3. Mrs X wants the Council to:
• amend the final EHC Plan so it is suitable for D and ensure appropriate provision is in place;
• provide catch-up educational and SEN provision for D outside term time;
• provide a financial remedy to recognise the distress and missed opportunity for D, and the distress, time, and trouble caused to Mrs X; and
• repay Mrs X for the SEN support she paid for herself, and the lost child benefit.

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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. 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
6. 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.
7. 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)
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. 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)
10. 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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How I considered this complaint

11. I considered evidence provided by Mrs X and relevant law, policy, and guidance.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. 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

Legislation and guidance

Education, Health, and Care (EHC) Plans

14. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
15. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section F: The special educational provision needed by the child or young person. 
• Section G: Any health provision needed because of their learning difficulties or disabilities which results in the child or young person having SEN.

16. 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).

EHC Plan needs assessments

17. 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. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• 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.

18. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes medical advice and information from health care professionals involved with the child.
19. Those consulted have a maximum of six weeks to provide the advice.

EHC Plan Personal Budgets

20. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
21. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan.
22. If the council refuses a request for a direct payment, it must set out the reasons in writing. It must also inform the child’s parent, or the young person, of their right to seek a formal review of the decision.

EHC Plan appeal rights

23. 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.
24. There is a right of appeal to the Tribunal against a council’s:

• decision that it is not necessary to issue an EHC Plan following an assessment; and
• description of a child or young person’s SEN, the SEN provision specified, the school or placement specified, or that no school or other placement is specified, in the EHC Plan.

25. We cannot direct changes to the sections of an EHC Plan about a young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
28. 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.

Alternative education while out of school

29. 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.
30. The section 19 duty 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) This means it does not apply after year 11.

EOTAS (Education Otherwise Than At School)

31. Councils have the power to arrange education and SEN provision to be delivered otherwise than at a school or institution (EOTAS), where it would be inappropriate for a child to attend a school setting. (Children and Families Act 2014 Section 61).

What happened

32. In September 2021, D started post-16 provision, studying four A levels. Due to a decline in their health, D gradually reduced their timetable, and they were only studying one A level when they stopped attending altogether at the end of 2021.
33. In December 2022, D was 17 years old and was still out of school. Mrs X asked the Council to carry out an Education, Health, and Care (EHC) needs assessment for D. Mrs X’s view was:
• D was too unwell to attend school but wanted to study for their A levels;
• D needed an EHC Plan specifying EOTAS (as described at paragraph 31); and
• D needed therapies including psychological support and physical therapy.
34. In June 2023, the Council completed its assessment and decided it should not issue an EHC Plan for D. Mrs X complained about this decision and the Council decided it should reopen its assessment in July 2023. This time the Council decided it should issue D with an EHC Plan. However, by April 2024 it had still not done this, so Mrs X complained.
35. The Council issued its final response to the complaint in July 2024. It said D was now receiving tutoring for their remaining A level but accepted there was still no final EHC Plan and apologised for the delay. Mrs X then came to the Ombudsman in August 2024.
36. In December 2024, the Council issued a final EHC Plan for D. Section F said D should receive one-to-one tutoring for one to two hours a week, taking place when D is well enough to learn. Section G said D should receive online psychological support, and short physiotherapy sessions, once a fortnight. Mrs X disagrees with the content of the Plan and has appealed to the SEND Tribunal.

What I have and have not investigated

37. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons it took them longer to complain. Mrs X first came to the Ombudsman in August 2024, so we would usually only look at what happened after August 2023.
38. I have investigated events after Mrs X asked the Council for an EHC needs assessment, in December 2022. The Council accepted it did not properly consult with health care professionals during the first needs assessment. This meant the Council had to reopen the assessment process in July 2023, so caused a delay of seven months. There were then further significant delays in the second assessment process. Therefore, the Council’s actions delayed Mrs X in being able to bring her complaint to the Ombudsman, so there is good reason to look back further.
39. I can consider any continuing injustice caused by the Council’s faults before Mrs X brought her complaint to us. However, I cannot consider new issues which arose after Mrs X came to us. The law says councils must have reasonable opportunity to respond to a complaint before we look at it. Mrs X says there have been recent issues since she came to us in August 2024:
• Mrs X said the final EHC Plan the Council issued in December 2024 did not meet D’s needs. Provision was included in Section G as health provision, and her view is it should be in Section F instead as special educational provision. This is a new issue so I cannot consider it. Also, Mrs X has appealed to the SEND Tribunal about Section F of this Plan, which is another reason I cannot consider it. Mrs X raised issues with how the Council conducted the review process that led to the December 2024 Plan. I cannot investigate the EHC review process that led to that provision being in the Plan. This is connected to the issue Mrs X has appealed, that is, that she disagrees with the provision that ended up in Section F of the Plan.
• If Mrs X wants to complain about how the Council ensured D received their EHC Plan provision after the Council issued the final Plan in December 2024, this is also a new issue which I cannot consider.

My findings

Alternative education while out of school

40. The Council’s duty under section 19 of the Education Act 1996 to provide suitable alternative education for children out of school only applies to children of compulsory school age.
41. The events I investigated all took place after D was no longer of compulsory school age. Therefore, the Council did not have a duty to secure them suitable alternative education, equivalent to full-time. However, the Council’s duty under section 42 of the Children and Families Act, to ensure D received the SEN provision in section F of their EHC Plan, still applied. This applies until the Council issues a decision to cease to maintain the Plan, or until the person turns 25 years old.

EHC Plan needs assessment

42. We can look at delays in the EHC needs assessment process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
43. The Council accepted it did not properly consult with health care professionals during the first needs assessment from December 2022 to June 2023. This meant it had to reopen the assessment process in July 2023, so caused a delay of seven months, which was fault.
44. Following the Council’s decision to carry out the assessment again in July 2023, it should have completed its assessment and issued a final EHC Plan within 20 weeks, by 23 November 2023. It did not issue the Plan until 20 December 2024, a delay of over a year, which was fault.
45. On the balance of probabilities, I find that if the Council had carried out the first assessment properly, and acted within statutory timescales, it could have issued a final EHC Plan with the same tutoring arrangements set out in Section F, by the end of May 2023. Therefore because of the Council’s delays, D missed the benefit of the SEN provision set out in Section F of the Plan from June 2023 onwards. The Council should remedy the injustice caused. The delays also caused distress, and frustrated Mrs X’s right to appeal to the SEND Tribunal. The Council should remedy the distress this caused.
46. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, such as direct therapies and interventions, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
47. In deciding an appropriate financial payment to recognise the impact of D’s missed SEN provision, I considered the following.
• Section F of the final EHC Plan said D should receive one-to-one tutoring for one to two hours a week, taking place when D is well enough to learn. This tutoring began at the end of May 2024, before the Council issued the EHC Plan, so D only missed out on this from June 2023 to June 2024, for three terms.
• During this period, D was in post-16 provision. They had already gradually reduced their timetable from studying four A levels to one before they stopped attending due to health problems. Mrs X does not dispute that D could not, and still cannot, cope with more than two hours a week of tutoring.
• Section G of the final EHC Plan said D should receive online psychological support, and short physiotherapy sessions, once a fortnight. I can only investigate the actions of, and recommend remedies from, the Council. The Council only has a duty to ensure Section F of a final EHC Plan is delivered, not Section G. I understand Mrs X’s view is the Section G provision should be in Section F. However, I can only recommend a remedy based on what ended up in Section F. The dispute about whether Section F is correct is the same issue Mrs X has appealed to SEND Tribunal, which I cannot consider.
48. I consider the Council should provide a financial remedy of £500 per term for the three terms of missed tutoring. It should also make a further payment to recognise the distress caused to D and Mrs X by the delay.

Personal Budget request

49. The Council accepted it did not respond properly to Mrs X’s request for a Personal Budget so she could arrange D’s SEN support herself. It apologised and offered to consider a fresh application. I consider this was suitable to remedy the injustice caused.

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Action

50. Within one month of our final decision the Council will:
1. apologise to Mrs X and D for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology; and
2. pay the family a total of £2,300, comprising of:
1. £1,500 to recognise the Section F tutoring D missed;
2. £300 to recognise the avoidable distress caused to Mrs X by the Council’s failings; and
3. £500 to recognise the avoidable distress to D.
51. Within three months of our final decision the Council will review why it delayed in completing an Education, Health, and Care needs assessment and finalising the EHC Plan. It will produce a dated action plan to prevent recurrence of the same faults in future.
52. The Council will provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman