Summary: The Council failed to ensure Ms X’s child could access education and delayed in issuing their Education, Health and Care Plan. This caused Ms X’s child to miss out on education including special educational provision. The Council has apologised, made service improvements, refunded private education costs, and offered a symbolic payment. These actions are a suitable remedy for the injustice caused. The Ombudsman cannot add to the outcome already achieved.

The complaint

1. Ms X complains the Council failed to provide education for her child for a year and failed to follow the statutory time limit for issuing a first Education, Health and Care (EHC) Plan.
2. Ms X says the Council discriminated against her child due to their disability and ignored findings by a Judge that a school had discriminated against her child.
3. Ms X says the Council has not disclosed details about funding it provided to school, or information she requested under the Freedom of Information Act.
4. Ms X says because of the alleged fault, her child had a mental breakdown caused by disability discrimination and struggled to leave the house. They became socially isolated and overly reliant on parents. They received no education for a full year. Parents and other family members faced considerable avoidable strain, and parents were unable to work. Appeal rights were also delayed.
5. Ms X would like the Council to:
• Get a senior figure in the Council to review the case and apologise.
• Support her child with their recovery by funding an assistance dog at £15,000.
6. The Council has admitted some fault and offered a financial remedy, but Ms X does not consider this sufficient for the injustice caused.

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The Ombudsman’s role and powers

7. 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)
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s EHC Plan.
9. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. We can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.
10. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
11. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
12. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). Where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
13. We provide a free service but must use public money carefully. We may end an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• we cannot achieve the outcome someone wants, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

14. 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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What I have and have not investigated

15. I have investigated whether the Council failed to provide suitable education in 2023/4 and missed statutory EHC Plan timescales.
16. I cannot investigate if the Council breached the Equality Act, only a Court can make that judgement. I can consider if the Council has taken account of an individual’s rights in its treatment of them.
17. I have not investigated Ms X’s complaints about data and freedom of information requests. I consider these would more appropriately be considered by the Information Commissioner. We could not look at issues such as what funding the school received prior to the EHC Plan being issued, or how it was used, as schools are not within our jurisdiction. We also cannot look at any matters subject to an appeal.
18. I have investigated delay in the final EHC Plan issued in 2024, and the loss of education until Ms X’s child started at their new school. Any issues not raised under the previous Council complaint process would need to be put to the Council before we could consider them.
19. I do not consider I can achieve the outcomes Ms X has requested. When someone has suffered an injustice, as well as securing an apology, we try to put them back in the position they would have been had that error had not occurred. Where that isn’t possible, we will recommend remedies that acknowledge the impact of faults. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic, rather than purely financial. It is not our role to assess economic losses or award compensation, and we direct people to the courts where that is their primary goal.
20. We would not make recommendations that a Council fund therapy that is not within an EHC Plan, such as an assistance dog. The Ombudsman does not have clinical expertise to make treatment decisions. Where we recommend a symbolic payment, the family may use that for therapy if they consider that appropriate.
21. Our focus is on administrative and service failures at a corporate level and our findings are therefore about the body as a whole. We do not have powers to require a particular member of staff provide an apology. It would be a matter for the Council who should provide any apology in response to a complaint. The Ombudsman also does not have the power to require a Council carry out an internal review.
22. While I cannot achieve the outcomes Ms X has requested, I have investigated whether the actions taken by the Council are sufficient to remedy the injustice and prevent a recurrence of the fault.

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How I considered this complaint

23. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
24. Ms X and the Council 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

EHC Plan

Relevant law and guidance

25. 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. 
26. 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 if a 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).
27. The Council must seek professional advice and those consulted have a maximum of six weeks to provide the advice. 

What happened

28. A request for statutory assessment of Ms X’s child was made in Spring 2023 with the twenty-week deadline for any final EHC Plan expiring in Autumn 2023.
29. Ms X says the Council did not issue a final EHC Plan until Spring 2024, ten months after the request. Ms X says this was only achieved because she raised a formal complaint.
30. The Council has accepted the Plan was six months late. It says it received all professional advice within timescales, except Education Psychology advice which was seven weeks late. The Council says there is a national shortage of educational psychologists, and it was short staffed at the time. It told me it has taken steps to recruit permanent staff in recent years and allocated additional funding for agency staff.
31. Following receipt of evidence, the Council says three drafts were required before the final Plan was issued in Spring 2024, which accounts for the remaining delay. It acknowledges the final Plan took too long as the team was severely understaffed, due to staff sickness and a lack of officers to process the work. The Council says it has since recruited additional staff and appointed agency plan writers to address this.

Fault

32. The Council has accepted delay of six months in issuing a final EHC Plan, that this was fault, and that it impacted Ms X’s child being able to access education.
33. The Council has identified the problems that led to the delay and taken action to fix them through additional recruitment. I acknowledge that some issues, such as the supply of Educational Psychologists nationally, is not within the Council’s control.

Duty to provide education

Relevant law and guidance

34. 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.
35. Where a pupil has an EHC Plan, 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).

What happened

36. Ms X’s child was attending School A but stopped attending on mental health grounds in Autumn 2023, around the time a final EHC Plan was due. Ms X says due to disability discrimination at School A, her child was unable to attend. Ms X says without a final EHC Plan there was no way to compel the school to make the adjustments necessary to allow her child to access education. Ms X says she asked the school and Council to provide alternative education in late 2023 / early 2024 but this did not happen.
37. I asked the Council about Ms X’s complaint the Council had not considered its equality duties. The Council told me it endeavours to be compliant with the Code and the Equality Act in all circumstances when working with families. Ms X’s child was attending a school in Wales but resident in Cheshire West and Chester when the EHC Needs Assessment was received. The Council told me it has not found any evidence it was made aware of poor attendance at the time of the assessment request. However, documents relating to the assessment, including the draft and final EHC Plans, do identify issues with emotional based school avoidance impacting fulltime attendance. Ms X also told me that she had several discussions with the Council about problems accessing education and about the possibility of alternative education being provided.
38. Ms X had expressed a preference of school during the EHC needs assessment in Autumn 2023. In Spring 2024 Ms X did not yet have a final Plan naming a school. Ms X told me she had to make a complaint to get Section I of the Plan completed. A school was subsequently offered. Ms X is happy with the current school where her child started in Autumn 2024.
39. Ms X says in the period her child did not attend School A she funded education privately. Ms X also says the EHC Plan delay meant her child could not access specialist support and therapy for the period of delay and her appeal right was delayed.
40. The Council says it provided alternative education provision from late Spring 2024 until the Summer holidays. Ms X says the Council did not provide an education for a full school year. Complaint documents show education otherwise than at school (EOTAS) was agreed between late Spring until the end of term 2024, with a transition meeting at the new school held in the Summer term. The provision was in essence a refund of expenses for the education Ms X had arranged herself.
41. Ms X made a disability discrimination claim against the school to the Special Educational Needs and Disability (SEND) Tribunal under the Equality Act 2010. Ms X says the Judge found that provision at School A was "poor and inconsistent" and that there had been a "systematic failure of the school" to abide by the law.
42. Ms X says she reported concerns about the school to the Council but says the Council did nothing to safeguard her child and, in fact, “compounded the discrimination by failing to follow statutory timelines and procedures”.
43. Ms X says the Tribunal only has jurisdiction to consider disability discrimination claims about schools, but the Judge advised her the Council was responsible for ensuring her child received the special educational provision in their EHC Plan (under s.42) and directed Ms X back to the Council complaints process.
44. Ms X told us following the Tribunal decision about School A, which included comments by the Judge about the Council’s actions, she has tried to engage with the Council’s formal complaints process twice. Ms X also issued a pre-action protocol letter to the Council about the failure to provide alternative education. Ms X says the Council did not respond. Ms X says the Council closed her second complaint without her consent and ignored the Judge’s findings.
45. Documents I have seen show Ms X first complained to the Council in Spring 2024, when the EHC Plan was overdue and enclosed details of her claim against the school. The EHC Plan was then finalised, interim education otherwise than at school funding agreed, and a new school place found. There is evidence the Council met Ms X in late Spring 2024 to resolve the complaint. The Council agreed to refund the costs Ms X had incurred providing education herself at £3,387.50. There was some delay in the refund being paid, which led to Ms X raising a further complaint.
46. Ms X says on receipt of her second complaint the Council swiftly made the overdue payment and sought to close the complaint on the basis the payment was ‘agreed financial compensation’ and Ms X had agreed by phone to withdraw the complaint on receipt of payment.
47. In Autumn 2024 Ms X received the Tribunal decision against the school and shared this with the Council. By this time her child had started a different school.
48. Ms X was unhappy the Council did not address the issues the Judge had raised. Ms X then complained to us, and we put the complaint back to the Council for it to provide a final response at stage two of the complaint process.
49. The Council’s final response in late 2024 accepted fault in not issuing the EHC plan within the statutory timeframe and lack of communication while awaiting the Plan and while Ms X’s child was not attending school. It acknowledged the impact of this fault on Ms X’s child and mental health and Ms X’s own wellbeing and made an apology. The Council offered a further payment of £4500 to acknowledge the impact of the fault and delay including missed education and special educational provision for three terms.
50. The Council’s response did not explain why the Council had failed to identify School A was not providing an accessible education for Ms X’s child or why it did not consider whether s.19 education was required at the time. I made enquiries of the Council about these issues. The Council told me it established a s.19 panel in Autumn 2024 which looks at requests around missed education and the Council then works with schools to consider medical needs, attendance or EHC needs assessments.

Fault

51. I am satisfied the Council was aware of attendance problems during the period of the EHC needs assessment. The Council has accepted delay in identifying Ms X’s child was not accessing suitable education and provided an apology and financial payments for missed education for three terms. It is clear there were serious staffing issues at the time which meant not only that the EHC plan was delayed but that the team did not refer for consideration of s.19 education. The Council has now set up a specific panel to consider s.19 requests and to monitor children missing education.
52. I would not be critical the Council did not discuss the Tribunal findings about the discrimination at school. School A was not in its council area and Ms X’s child had by then moved to a new school. The Council has taken responsibility, via its apology and financial payment, for the missed education.
53. The Council did have consideration for its equality duties, in so far as it carried out an EHC needs assessment to identify what was needed for Ms X’s child to access education successfully. It seems to me that the failure to intervene with attendance or consider s.19 was due to staffing issues, which the Council has accepted affected the service Ms X received, and which it has sought to resolve.

Injustice

54. The Ombudsman issues Guidance on Remedies. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss.
55. The Council has apologised, made a financial payment in line with the Ombudsman’s Guidance on Remedies (when the refund for private education is taken into account) and put in place service improvements to avoid future fault. I am satisfied these actions are a suitable remedy to the complaint and the Ombudsman cannot provide any further worthwhile outcome to Ms X.

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Decision

56. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman