Summary: Miss X complained the Council delayed issuing her child, Y’s, Education, Health and Care Plan. She says this resulted in Y missing out on a suitable education and their special educational needs provision. The Council delayed issuing Y’s Plan and delayed Miss X’s right of appeal to the SEN Tribunal. This was fault. The Council has agreed to apologise to Miss X and make a payment to remedy the impact of its actions.

The complaint

1. Miss X complained the Council delayed issuing her child, Y’s, Education, Health and Care (EHC) Plan. She says this resulted in Y missing out on a suitable education and their special educational needs provision. Miss X says this caused Y and her family distress. She wants the Council to compensate her and ensure Y receives the provision she missed.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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)
5. 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)
6. 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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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The Law

School exclusions and alternative provision

9. Where a child is permanently excluded from school, councils must arrange an alternative education within six school days of the exclusion.

Education, Health and Care (EHC) Plans

10. 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. 
11. 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 (unless certain specific circumstances apply).
12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist.
13. There is a right of appeal to the Tribunal against a council’s 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;
14. 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)
15. 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.
16. 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.
17. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

What happened

18. Miss X’s child Y was excluded from their school on 30 March 2023. The school asked the Council to carry out an Education, Health and Care (EHC) needs assessment of Y on 31 March 2023. The Council agreed to assess Y.
19. Y started attending a pupil referral service, school A, on 20 April 2023. The Council’s records from July 2023 show Y was supposed to be attending the provision for two hours a day but was only managing one hour. The Council’s records also show it agreed funding for two days a week support from a support worker.
20. An educational psychologist assessed Y as part of their EHC needs assessment on 12 October 2023 and sent the Council the report on 20 October 2023. A November case note from the Council said Y was currently attending five hours a day, three days a week at school A and two days alternative provision.
21. The Council issued a draft EHC Plan on 17 November 2023 and began consulting with possible placements. School A said it could not meet Y’s needs. The Council issued a final EHC Plan on 14 February 2024. It named a new school, school B, from September 2024.
22. Miss X disagreed with the Council naming school B and asked the Council to name a third school, school C. Miss X appealed to the SEN Tribunal. While waiting for the appeal, Miss X continued to chase the Council for details of Y’s transition to school B. Miss X complained to the Council on 30 June 2024.
23. In July 2024 the Council decided not to name school B as Y’s placement from September 2024. In its complaint response the Council accepted a delay in assessing Y and issuing the final EHC Plan. It apologised but said it had been entitled to pursue a placement at school B. Miss X remained unhappy and asked the Council to consider her complaint at stage two of its complaints process. She said Y had missed out on a place at school C because of the Council changing its mind.
24. In its stage two response the Council accepted it had not properly addressed Miss X’s concerns. It said it had followed the correct process for assessing Y and issuing their EHC Plan, even though the process was delayed. It said Y’s placement was appealable to the Tribunal. It accepted Y had remained at school A longer than they should have done. It apologised again and said it would continue to work with Miss X and Y to identify a suitable placement. Miss X complained to the Ombudsman.
25. The Council continued to mediate with Miss X and both parties agreed to the content of a new EHC Plan. The Tribunal issued a consent order in January 2025 and the Council immediately issued an amended final EHC Plan.

My findings

EHC Needs Assessment and Plan

26. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council accepted Miss X’s assessment request on 31 March 2023. EHC needs assessments must include advice from an Educational Psychologist. The Council should have ensured it received the psychologist’s advice within six weeks. It took 29 weeks to receive this advice, a delay of just over five months.
27. The Council did not meet these timescales due to the shortage of Educational Psychologists and the increased demand for EHC needs assessments. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Y’s EHC needs assessment is fault (service failure) and caused Miss X frustration, distress and uncertainty.
28. Following the Educational Psychologist’s report, the Council had six weeks to issue Y’s EHC Plan. It took nearly 17 weeks, a delay of 11 weeks. This was fault. Miss X appealed the final EHC Plan to the Tribunal so we cannot investigate any complaint about Y’s SEN provision during this time. However, the Council delayed Miss X’s right of appeal to the Tribunal, causing Miss X further frustration, distress and uncertainty.

Y’s exclusion and alternative education

29. Y was excluded one day before the end of the Spring term in March 2023. The Council arranged for Y to attend school A, three days after the start of the summer term in April 2023. The Council arranged alternative education within six school days. The Council was not at fault.
30. The Council’s records show that Y initially struggled to attend school A but was receiving five days of education by the autumn term 2023. Before February 2024 there was no EHC Plan in place for Y. The Council was under no duty to secure SEN provision for Y before February 2024. The Council was not at fault.

The Council’s service improvements

31. The Council has explained the steps it is taking to resolve the delays in completing EHC needs assessments. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

32. Within one month of the final decision, the Council has agreed to:
1. Apologise to Miss X for the frustration, distress and uncertainty caused by the fault identified. 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.
2. Pay Miss X £575 to recognise the frustration, distress and uncertainty caused by the Council’s delay in progressing Y’s EHC needs assessment.
3. Pay Miss X £200 to recognise the frustration, distress and uncertainty caused by the Council’s delay to Miss X’s appeal rights.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman