Summary: Miss J complained the Council delayed in issuing an Education, Health and Care Plan to her child. It then failed to ensure they had a place in an education setting for the 2024-25 academic year. We upheld both parts of the complaint, finding faults by the Council resulted in a loss of suitable education for Miss J’s child and avoidable distress. The Council has accepted these findings and at the end of this statement we set out action it has agreed to take to remedy this injustice.

The complaint

1. Miss J complained the Council:

• failed to issue an Education, Health and Care Plan to her child, K, until July 2024, despite a Tribunal ordering it to do so in April 2023;
• failed to secure a place for K at an education setting for the 2024-25 academic year.

2. Miss J said as a result, K had significant disruption to their education for over two years. They became isolated from their peer group and distressed at not being in school or college. Miss J said these events also impacted on her wellbeing and mental health, including her ability to work.

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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. 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 by the council involved. There may be circumstances where we decide service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. (see R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
9. 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

10. I considered evidence provided by Miss J and the Council as well as relevant law, policy and guidance.
11. I gave Miss J and the Council opportunity to comment on a draft version of this decision statement. I took account of any comments they made before finalising the decision statement.

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What I found

Legal and administrative considerations

Special Educational Needs and Education, Health and Care Plans

12. 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 arrangements to meet them. The council issues a Plan after completing an education, health and care needs assessment.  
13. Where a council receives a request from a parent to complete a needs assessment it has six weeks to decide whether to agree. If the Council refuses the request then a parent can appeal its decision to the Tribunal.
14. If the Tribunal upholds the appeal the council has 10 weeks to decide whether to issue the child or young person with an EHC Plan. If the Council agrees to issue an EHC Plan, then it has 14 weeks from the date of the Tribunal decision to do so. (see Regulation 44 of the Special Educational Needs and Disability Regulations 2014)
15. As part of the needs assessment, the Council must gather advice from relevant professionals, including psychological advice from an Educational Psychologist. (see Regulation 6 of the SEND Regulations).
16. The EHC Plan contains sections including: 

• section B: a description of the special educational needs;  
• section F: details of the special educational provision needed by the child or young person; 
• section I: this will name an educational placement or the type of educational placement the child or young person needs.

17. If a parent or young person wants changes to any of these sections of the Plan they can appeal to the Tribunal. Case law has found that an appeal to the content of section B can include a statement that a child should join a year group different from their chronological age year group. (see AB v North Somerset Council (SEN) [2010] UKUT 8 (AC)).

Alternative provision

18. 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.
19. This applies to all children of compulsory school age living in the local council area, whether or not they are enrolled in school. (Statutory guidance ‘Alternative Provision’ January 2013)

The key facts

20. In November 2022, K was in Year 9 of their education and enrolled in a mainstream school. They had a diagnosis of autism and ADHD. Miss J did not think the school met K’s needs effectively. So, she asked the Council to undertake an EHC needs assessment. The Council refused and Miss J appealed to the Tribunal.
21. In February 2023 Miss J deregistered K from the mainstream school because of concerns about bullying. She began to electively home educate K.
22. At the end of April 2023, the Tribunal upheld Miss J’s appeal. It ordered the Council to complete an EHC needs assessment. In its judgement the Tribunal said it was “very important” that by the start of Year 10 of their education, K’s “full range of needs” were “understood”. Also, that the Council put “appropriate provision in place for them”.
23. As part of the needs assessment the Council requested advice from an Educational Psychologist. It did not receive this until the end of September 2023.
24. By that time, and while K remained without an EHC Plan, Miss J found a college course they could attend. The college advertised this as a vocational course for parents who home-educate their children. The college said that while it would distinguish teaching where possible, it did not receive funding to meet the needs of pupils with special educational needs.
25. In January 2024 Miss J chased the Council for an update on the assessment. The following month it told her it would issue a draft EHC Plan imminently. However, it failed to do so and in March 2024 Miss J found out the EHC Plan Co-Ordinators she had been in contact with, had left their post. So, at this point she made a complaint about the delay.
26. At the end of March 2024, the Council replied to Miss J’s complaint. It apologised for the delay in completing the EHC needs assessment and not keeping her informed of progress. It said it would issue a draft EHC Plan shortly.
27. In May 2024 Miss J asked the Council about naming ‘EOTAS’ provision on K’s Plan (education other than at school). K continued to attend college for their course which was three days a week. They had good attendance at the college, at over 90%. Miss J wanted K to continue at college and explore them having some alternative provision for the other two days.
28. However, in July 2024 the college excluded K following repeated concerns about their behaviour, linked to their special educational needs. From that point, Miss J wanted the Council to name a specialist education provider on K’s EHC Plan. The Council agreed to this and issued K with a final EHC Plan later that month which stated this in Section I. But while the Plan identified K needed a specialist placement, it did not name a specific education setting such as a school or college.
29. Separately, the Council also told Miss J, that following K’s exclusion it would refer their case for alternative education provision. And in late July 2024 an education provider quoted to provide home tuition for K. This followed the Council inviting it to show an ‘expression of interest’ in providing such tuition.
30. Next, K’s case went to a panel of senior officers used by the Council to consider specialist education placements. Miss J made a written submission to that Panel and asked the Council to find a placement for K that would enable them to join Year 10 from September 2024. While K’s age meant they would usually join Year 11, Miss J pointed to the disruption in their education over the previous two years. She wanted K to join a Year 10 class so they could study for GSCEs.
31. At the beginning of August 2024 there were emails between Miss J and the Council which discussed potential placements in colleges or schools. Over the next few weeks, the Council consulted multiple education settings. Its consultations only asked about K joining Year 11 of those settings.
32. Miss J says in two cases the Council consultation was inadequate. In one it referred to K undertaking a specific vocational course which K was no longer interested in pursuing. In another case, the Council failed to ask K’s previous education setting to complete a form, containing information the specialist setting consulted asked for (or else it failed to ask Miss J to provide that information).
33. In an email sent to Miss J in September 2024, the Council said that it was not possible for Miss J to appeal its decision not to consult about Year 10 admission. However, she could make a complaint. The Council also said it now seemed unlikely it could find a place for K at an education institution for the 2024-25 academic year. It suggested that it now look at EOTAS provision for K instead.
34. That led Miss J to escalate her complaint. She said while K now had an EHC Plan, they still had no school place. Miss J also repeated that she wanted K to join Year 10, not Year 11, given the education they had missed. Meanwhile, Miss J and the Council liaised over K receiving home tuition from the provider which had expressed an interest in July. It began delivering home tuition to K from around the beginning of October 2024, for 15 hours a week.
35. In its final complaint response, given in October 2024, the Council said that after issuing K with a draft EHC Plan it had consulted 16 schools or other education settings. It found none of these could offer K a place. So, it had now arranged for K to receive EOTAS provision, comprising 15 hours a week of home tuition. The Council said if Miss J disagreed with this provision, she should use her right of appeal to the Tribunal.
36. The Council did not issue a new EHC Plan naming EOTAS provision in Section I, so this continued to say K would attend a specialist education setting. However, in December 2024 the Council issued an amended EHC Plan, naming a college placement from September 2025. Miss J has since gone on to appeal the Plan.

My findings

The scope of the investigation

37. I investigated the Council’s actions between April 2023 and October 2024. The first date was when the Tribunal issued its decision ordering the Council to complete an EHC needs assessment for K. The second date was when the Council gave its final reply to Miss J’s complaint, coinciding with when it began delivering alternative education provision to K.
38. As part of my investigation, I did not consider the scope of that education provision. But I decided I could investigate all the matters summarised within paragraph 1 of this statement. I found Miss J could have appealed the matters summarised in 1b) to the Tribunal, following issue of K’s EHC Plan in July 2024. But I decided it was not reasonable to have expected her to do so.
39. This was because first, I considered in July 2024 Miss J had a reasonable expectation the Council would secure for K a specialist education setting. It had issued a Plan which named this type of provision. It began extensive consultation. There was no suggestion in the emails I read the Council did not co-operate fully with Miss J about which settings it consulted. So, I found there was no benefit to Miss J in appealing to try and secure a specific setting. I also noted that in any event, Miss J had not focused on a single specific setting for K. Instead, she wanted only that they attended a setting suited to their needs and could resume their education with a Plan.
40. Second, I considered it reasonable that Miss J did not know of the potential to amend Section B of the Plan, to request K receive education in a lower year group than their chronological age. The evidence suggested the Council did not respond specifically to her request that K should join a lower age group for several weeks. And when it did so, it told her wrongly that its decision on this point was not a matter she could appeal.

The delay in issuing the EHC Plan

41. I calculated the Council should have issued K with an EHC Plan by the beginning of August 2023 (14 weeks after the Tribunal decision at the end of April 2023). But it did not so until July 2024, a delay of nearly 12 months, or a whole academic year.
42. I recognised some of the delay lay outside the Council’s immediate control. Our casework over the past two years showed that in common with other local authorities, the Council had faced a shortage in Education Psychologists. This resulted in it having a backlog of outstanding requests for psychological advice. And consequent to that, an inevitable delay in it receiving the necessary advice to progress EHC needs assessments.
43. However, this could only account for a small part of the delay. It was disappointing the Council did not offer Miss J explanation for why K’s needs assessment took so long after it received education psychology advice. Especially, as Miss J took her complaint through its complaint procedure.
44. I noted that our casework over the past two years had also identified unacceptable delays in completing EHC needs assessments as a recurring problem. The Council told us in February 2024 that it had a plan in place to reduce delays in assessments, to be effective by early 2025. It also publicised on its website a SEND improvement plan, which included action to tackle delays.
45. Clearly, any benefits from these actions came too late to help K in this case. But I decided I did not need to investigate further to identify the specific cause of delay given this probably resulted from the known and publicised problems in the Council’s special educational service set out above. It was enough that I simply record the Council at fault for the delay.
46. The injustice this caused K was that for nearly a year they were without a Plan setting out their special educational needs, and the education provision they needed. They also lacked any named placement.
47. I considered this had a consequential impact on the education they received. While Miss J ensured K had some access to education, the college course they found could never meet K’s needs as well as a Plan. It was not full-time and without a Plan in place, an education setting could not tailor provision to meet K’s needs. So, K suffered a loss of education provision because of the delay.
48. I go on below to detail the action the Council has agreed to take to remedy this injustice. This is in line with recommendations I made, which took account of our published guidance on remedies. This suggests a council should make a symbolic payment where we find that lost education provision forms part of a child or young person’s injustice. The guidance encouraged me to use a tariff calculation, to encompass the time the Council delayed completing K’s EHC Plan and where they were without full-time education. It suggested starting from a “top-end” figure of £2400 a term, applicable where a child is without all education. I reduced this taking account that K received some education as summarised in paragraph 47. But also, I then needed to give weight that this was a crucial phase in K’s education, as the Tribunal explained. So, I decided a figure of £1500 a term appropriate. I recommended the Council apply this for three terms given how long it delayed issuing K’s Plan.
49. In addition, I found the delay would also have impacted on Miss J. Having K at home for longer than she foresaw when she began elective home education, impacted on her day-to-day life. While some disruption arose from K’s needs, distinct from the lack of education provision, I noted K had a good attendance record at college. So, I saw no reason to think K could not have coped with the rigours of full-time education if tailored towards their needs, had the Council issued a Plan sooner identifying an education setting. I therefore also recommended a payment for Miss J’s distress.

The failure to secure a place in an education setting for K for the 2024-25 academic year

50. I understood why, when the Council consulted education settings in summer 2024 Miss J wanted it to consider if K could join a Year 10 cohort. She provided clear argument for why she considered it in K’s interests. It was not for me to say if the Council should have agreed the request, as that would be for its judgement. So, I could not say it was fault for it to refuse the request. But it did not explain its reasons for not undertaking such consultation. That was a fault.
51. I also noted the evidence Miss J provided suggesting that two of the consultations the Council carried out were inadequate. One containing out of date information and one that left incomplete information the education setting asked for. That too was a fault.
52. It was also fault the Council could not locate a specialist education setting for K. Despite the flaws in two of its consultations, I recognised that overall, the Council consulted extensively on trying to find a Year 11 place for K. I considered its failure to locate one was therefore a service failing. But as I explained above (paragraph 4), a service failing is still a fault.
53. I considered it a further fault, that when the Council searches came to naught, it did not issue Miss J with a further EHC Plan. Because by October 2024 the provision set out in Section I of K’s Plan had changed. The Council was not providing, nor seeking any longer, a specialist placement for K. Instead, it provided an EOTAS package, fundamentally different. It should have updated K’s Plan accordingly and restored Miss J’s rights of appeal should she have wanted to pursue something different for K.
54. I also had concern about the time taken to put alternative provision in place for K. The Council first offered this in July 2024. I considered if it should have offered this sooner given K was not in full-time education from February 2023. But I noted that initially Miss J electively home educated K, which would not put any duty on the Council to meet their needs. The position changed during the 2023-24 academic year when K attended college. But it was not until May 2024 that I found evidence of Miss J no longer wanting to electively home educate K but instead asking about an EOTAS package.
55. I considered it likely the Council had a duty to begin providing alternative provision from May 2024 therefore, and certainly from July 2024 when it said it would. But it served no benefit for me to pin down a precise date here (including any date before May 2024). Because any injustice caused to K from any failure by the Council to make alternative provision sooner was inseparable from that caused by the delay in completing their EHC Plan.
56. But there was a separable injustice that arose from the faults identified in paragraphs 50 to 52. I could not say that if the Council had considered in more detail Miss J’s request that K should enter a Year 10 cohort, it would have agreed to that. Nor if it had agreed to the request that a specialist education setting would have had a place for K. Nor if the Council had not made some error in two of its Year 11 consultations, this would have made a difference. But all this uncertainty was a source of distress to Miss J, for which I recommended a further symbolic payment.
57. In addition, a separable injustice arose from the impact of not issuing K with a new EHC Plan in October 2025. This caused a loss of Miss J’s appeal rights. I therefore recommended a further symbolic payment to take account of this.

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Agreed Action

58. I was pleased that in response to my draft decision the Council accepted these findings and my recommendations. Within 20 working days of this decision, the Council has agreed that it will:
1. provide Miss J with an apology taking account of the advice set out in paragraph 59 below;
2. make a symbolic payment to Miss J of £5250. This comprises £4500 for K’s lost education provision (see paragraphs 47-48); £600 combined for Miss J’s distress (see paragraphs 49 and 56) and £150 for Miss J’s loss of appeal rights (see paragraph 57).
59. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council agreed to consider this guidance in making the apology I recommended.
60. The Council will provide us with evidence it has complied with the above actions.
61. I decided against recommending the Council make any service improvements. I set out above that investigations conducted over the past two years by this office identified repeated fault in the Council delaying EHC needs assessments and delay with education psychology services in particular. But we have found the Council has put in place plans to try and address these problems. I considered it would be premature at this stage to ask it to revisit those plans, or recommend it introduce new measures, given the time when the events covered by this complaint took place.

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Final Decision

62. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss J and K. The Council has accepted these findings and agreed action to remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman