Summary: Miss X complained about the Council’s delay issuing her child, Y’s Education, Health and Care Plan. We find fault, causing distress and uncertainty for Miss X. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained about the Council’s delay issuing her child, Y with an Education, Health and Care (EHC) Plan.
2. Miss X says that the delay caused Y to miss out on over a year of education.
3. She wants her child to attend a special school and to be reimbursed the cost of a private tutor.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
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).

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What I have and have not investigated

9. In this case, Miss X appealed the Council’s decision not to carry out an EHC needs assessment and later appealed the school named in Y’s EHC Plan to the SEND Tribunal.
10. 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. I have investigated Miss X’s complaint about the delays in the EHC needs assessment process between November 2023 (when the Tribunal overturned the decision not to assess) and July 2024 (when Y’s EHC Plan was issued, and Miss X appealed the named school to the Tribunal). 

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
12. Miss 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

Relevant law and legislation

Education, Health and Care Plan

13. 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. 

Timescales and process for EHC assessment

14. 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• 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).  

Elective Home Education (EHE)

15. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

Background information

16. In December 2022, the Council received a request for an EHC needs assessment for Y. However, in February 2023, it decided not to carry out an assessment. Miss X appealed this decision to the Tribunal.
17. In September 2023, Miss X began elective home educating Y.

November 2023 onwards

18. In November 2023, the Tribunal overturned the Council’s decision and directed it to carry out an EHC needs assessment for Y.
19. In July 2024, the Council issued Y’s EHC Plan.
20. In September, Miss X complained to the Council asking for an investigation into how it had handled Y’s EHC needs assessment. She raised concerns about delays and poor communication. She said Y missed a year of education, and the EHC Plan had been issued but named a school she disagreed with.
21. Later that month, the Council responded, upholding her complaint. It acknowledged that it had failed to meet statutory timescales and apologised, explaining that a high volume of EHC needs assessment requests had impacted its ability to deliver the service. However, it stated that steps were being taken to improve the situation. The Council also informed Miss X that she had the right to appeal the named school through the Tribunal.
22. Dissatisfied with the response, Miss X escalated her complaint to stage two. The Council however, declined to investigate further, saying it had already explained the reason for the delay and outlined its plans for service improvements.

My Findings

23. The Council failed to complete Y’s EHC needs assessment and issue the final EHC Plan within statutory timescales.
24. Following the Tribunal’s decision in November 2023, the Council was required to issue Y’s EHC Plan within 14 weeks, meaning that it should have been completed by February 2024. However, the Council did not issue the plan until July 2024, resulting in a 23-week delay. This delay is fault.
25. Miss X says that the delay meant Y missed a year of education. However, as Y was electively home educated during this period, Miss X was responsible for Y’s education and for any costs incurred. She made the decision to do this before the events resulting in delay happened.
26. While the delay did not mean Y missed a year of education, it did cause Miss X distress, uncertainty, and delayed her appeal rights.

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Action

27. To remedy the injustice caused by the above faults, within four weeks of the date of our final decisions, the Council has agreed to: 
• apologise to Miss X in line with our guidance on Making an effective apology; and 
• pay Miss X £300 to recognise the uncertainty and distress caused to her by the Council’s delay.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman