Summary: Mrs X complained about the Council’s provision of education, and handling of the education, health and care process for her two children which caused missed education and significant distress. We find the Council at fault for its failure to provide suitable alternative education, meet statutory deadlines, and for poor communication and complaint handling, which caused injustice. We find the Council has already offered a suitable remedy for the injustice. We have decided to end our investigation into other areas of the complaint because they are late or have been appealed to the Tribunal.

The complaint

1. Mrs X complains about the Council’s provision of alternative education, and handling of education, health and care (EHC) process, for her two children who I shall refer to as Y and Z. In particular she complains the Council:
1. Did not provide suitable alternative education for two years when Y and Z were unable to attend school.
2. Conducted traumatic weekly safeguarding calls with Y and Z when they were unable to attend school.
3. Failed to secure occupational therapy (OT) and speech and language therapy (SALT) reports during the EHC needs assessments, then used reports that Mrs X had secured without reimbursing her.
4. Lacked transparency in its decision-making processes.
5. Missed statutory timescales in the EHC process.
6. Had poor communication and responses to her complaints.
2. Mrs X says the Council’s actions caused significant anxiety and distress and caused negative impacts of missed education.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) (the Tribunal) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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)
8. 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

What I have and have not investigated

9. I have investigated the Mrs X’s complaint from November 2023 because it occurred within 12 months of her complaint to us.
10. I have not investigated matters before November 2023. Those matters are late because Mrs X knew about them more than 12 months before she complained to us and I have decided there are not good reasons why she did not complain to us sooner.

Back to top

How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as 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.

Back to top

What I found

Relevant law and guidance

Alternative provision

13. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

EHC Plans: timescales and processes for assessments

17. 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. 
18. 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 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);  

19. 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. 

20. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
21. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

Appeal rights

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

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• 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 in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

23. 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)
24. 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 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.

25. 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

26. In 2022 Y and Z stopped being able to attend school for medical reasons. The Council provided them three hours of tuition each per week.
27. On 11 August 2023 Mrs X requested EHC needs assessments for Y and Z.
28. On 22 September the Council agreed it would carry out EHC needs assessments. This met the six week statutory deadline for making the decision.
29. The Council said it requested SALT and OT assessments from the NHS in September.
30. The Council should have issued draft EHC Plans by 29 November, and final EHC Plans by 28 December 2023. It did not meet these statutory timescales.
31. Mrs X became concerned the Council had not obtained SALT and OT assessments so she commenced the process of obtaining private assessments and reports for both Y and Z.
32. In June 2024, Mrs X raised several concerns with the Council. These included failures to secure SALT and OT assessments, missed deadlines, poor responses and communication and failure to provide adequate education.
33. At the beginning of July the Council wrote to Mrs X. It agreed it would take account of the OT and SALT reports she had paid for when they were finalised. It said it would not reimburse her the costs of the assessments.
34. Also at the beginning of July the Council issued draft EHC Plans for Y and Z .
35. Mrs X and the Council met on 25 July 2023 to discuss her ongoing concerns and the escalation of her complaint. Mrs X escalated her complaint in writing on 31 July. It addressed areas of concern including the failure to conduct appropriate assessments as part of the EHC process, missed deadlines, inadequate responses and communication issues, and failure to provide suitable education for Y and Z.
36. The private SALT and OT reports for Y and Z were finalised in July and August.
37. The Council responded to Mrs X’s letters of complaint regarding Y and Z on 2 September. The Council accepted it failed to secure SALT and OT assessments, missed statutory timescales for Y and Z’s EHC process, did not secure suitable education for Y and Z since 2022, and provided inadequate responses and communication throughout the process. It apologised and offered financial payments to remedy the injustice. It reiterated it would use private OT and SALT assessments but would not reimburse the cost. It undertook to issue the final EHC Plans as soon as possible
38. On 6 November the Council issued the final EHC Plans for Y and Z. These were marked as “Amended draft” plans. However, the Council subsequently clarified they were the final plans. This was approximately 10 months late.
39. Mrs X complained to us on 26 November. She subsequently appealed to the Tribunal in January 2025 about Y and Z’s EHC Plans.

Analysis

40. I will set out my conclusions on each part of Mrs X’s complaint in turn:

(a) The Council failed to provide suitable education from 2022

41. The matters that occurred before November 2023 are late because Mrs X knew about them more than 12 months before she complained to us. Mrs X explained she did not complain about the matters sooner because of trauma associated with the complaint. I acknowledge the impact of the experience Mrs X described. However, I have carefully considered the circumstances and have decided there are not good reasons why Mrs X did not complain to us sooner. For this reason, I do not have grounds to exercise discretion to investigate the suitability of the educational provision secured by the Council before November 2023.
42. From November 2023 the Council provided Y and Z three hours of tuition each per week. I agree with the Council’s finding in its letter of 2 September 2024 that this was not suitable or adequate education for Y or Z. This was fault which caused injustice in the form of missed educational provision and distress.
43. I note the Council has apologised and offered £7,800 per child for six terms since 2022 to remedy the injustice
44. I have considered the suitability of the Council’s remedy with reference to our Guidance on Remedies and the period I investigated. I have decided the Council has already offered a suitable remedy because I would not recommend a higher payment.

(b) The Council was involved in the decision to conduct traumatic weekly safeguarding calls between the school, Y and Z

45. I have ended my investigation into this element of Mrs X’s complaint because the decision to commence the calls happened in 2022 and it is therefore late. I have decided there are no good reasons Mrs X did not complain to us sooner.

(c) The Council failed to secure OT and SALT reports during the EHC needs assessment process, then used reports that Mrs X had secured without reimbursing her. And (d) it lacked transparency in its decision-making processes

46. I have ended my investigation into these elements of Mrs X’s complaint because Mrs X has appealed to the SEND Tribunal about them.
47. Regarding the OT and SALT reports. I cannot investigate a complaint or consider reimbursement of privately obtained advice if someone has appealed to a tribunal about the same matter. This is because expert evidence will often be directly or indirectly a matter of dispute in the appeal when the Tribunal is asked by a parent to remedy injustice caused by flaws in the EHC Plan. We cannot investigate where someone has used an alternative legal remedy for the same injustice.
48. Regarding the lack of transparency. I have decided the Tribunal could decide to consider this area of Mrs X’s complaint. I cannot investigate complaints about matters the Tribunal could consider.

(e) The Council missed statutory timescales in the EHC process

49. The Council accepted fault for delay in the EHC process. I agree the delay was fault which caused injustice in the form of distress, frustration and uncertainty for Y, Z and Mrs X.
50. I note the Council has apologised and offered £700 for both Y and Z to acknowledge the seven months between December 2023, when the final EHC Plans should have been issued, and July 2024, when it issued draft EHC Plans.
51. I have considered the suitability of the Council’s remedy with reference to our Guidance on Remedies. I note there was a further delay in the EHC process until November when the Council issued the final EHC plans. However, I have decided the Council has already offered a suitable remedy because I would not recommend a higher payment.

(f) The Council had poor standards of communication and provided unsatisfactory responses to her complaints

52. The Council accepted fault in its communication and complaint responses. I agree there was fault in these areas which caused Mrs X distress, frustration and time and trouble.
53. I note the council apologised and offered £500 for the time and trouble regarding its complaint handling.
54. I have considered the suitability of the Council’s remedy with reference to our Guidance on Remedies. I have decided the Council has already offered a suitable remedy because I would not recommend a higher payment.
55. I have also considered whether to recommend service improvements to prevent future injustice to others. I have decided not to make service improvement recommendations because we have recently recommended the Council take action regarding similar areas of fault.
56. In light of my findings above, I do not make further recommendations. However, I invite the Council to provide Mrs X with the previously offered remedy within a reasonable timeframe.

Back to top

Decision

57. I find fault causing injustice for the reasons explained in the analysis section. I uphold Mrs X’s complaint. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman