Summary: The Council was at fault because it delayed issuing an education, health and care (EHC) plan for the complainant’s son, causing distress. The Council has agreed to offer a financial remedy for this. However, there is no objective evidence to show the Council misled the complainant that it could convert a foreign special educational need (SEN) document into an EHC plan; and nor was the Council at fault for a delay in finding a school placement.

The complaint

1. I will refer to the complainant as Mr M.
2. Mr M and his son, B (who has special educational needs (SEN)) recently relocated to the UK from a different country. In that country, B had a plan (to which I will refer as the ‘SEN document’) which is the equivalent of an education, health and care (EHC) plan in the UK.
3. Mr M complains:

• the Council wrongly advised him that B’s SEN document would convert directly to an EHC plan once he moved to the UK;
• there was a delay in finding and allocating a school placement for B after the move; and
• there was a delay in drafting and issuing B’s EHC plan.

4. Mr M says, as a result of this fault, B has been left in a school which is not suitable for him and cannot meet his needs.

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The Ombudsman’s role and powers

5. 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)
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. 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

9. I considered evidence provided by Mr M and the Council as well as relevant law, policy and guidance.
10. I also shared a draft copy of this decision with each party for their comments.

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What I found

Legal background

EHC plans

11. A child or young person with special educational needs may have an 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 council can do this.
12. 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;
• 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).

Fair access protocol

13. Each local education authority must by law have a fair access protocol (FAP) in place. The FAP is a process to quickly find school placements for children who do not have one, for one or more of a variety of reasons. The local authority must work in collaboration with local schools to establish and operate the FAP.
14. Government guidance on the FAP says it should be used as a last resort, and that children should, wherever possible, be placed in school through the normal in-year admissions process.
15. Once a decision has been made to place a child under the FAP, a school placement must be allocated to them within 20 days. Schools must accept a child placed under the FAP when asked to do so.

Mr M’s complaint

16. Mr M and B moved to the Council’s area from abroad in March 2024.
17. On 22 May, Mr M submitted a stage 1 complaint to the Council. He said he had contacted the Council in February to discuss securing a school placement for B when they moved. Mr M said the Council had informed him, at that point, that it could convert B’s SEN document into an EHC plan, but in April said this was incorrect, and that he needed to apply for a school through the normal admissions process.
18. Mr M said he had since applied to six schools, but none had offered B a place. He explained the Council was currently assessing B for an EHC plan, but noted this could take up to 20 weeks to complete, during which B would be missing education. Mr M said neither the Council’s SEN team, nor its team responsible for children out of education, had been responsive to his concerns.
19. The Council responded in June. It said the schools Mr M had applied to had all confirmed they were oversubscribed, and therefore could not offer a place. The Council explained it did not have control of this. However, it noted B had now been referred to the Council’s FAP panel, and that it would find a place for him shortly.
20. The Council said that, when Mr M had first contacted it, it had accurately explained it could not convert B’s SEN document due to the differences in legislation in the UK, and that B would need to undergo an EHC needs assessment. It said it had received Mr M’s application for an assessment on 15 April and had six weeks to respond to it; and it had then agreed to the carry out an assessment, and started it on 7 May, within this deadline. The Council explained it now had until 28 June to decide whether to issue an EHC plan for B.
21. Mr M submitted a second stage 1 complaint on 17 September. He said the Council had yet to issue a decision or a draft version of an EHC plan for B, despite the final deadline for completing the process having been 2 September.
22. Mr M said this had had a significant impact on B. Although the Council had placed him at a school under the FAP, the school had said it did not have the resources to meet B’s needs. Mr M asked the Council to finalise B’s EHC plan, carry out an urgent review of the suitability of his school, offer compensation, and implement measures to prevent similar delays in future.
23. The Council responded on 15 October. It said it had advised Mr M in April it was experiencing significant delays in processing EHC needs assessments, and although it had met the deadline to notify him it had agreed to carry out an assessment, there had then been a delay in receiving advice from an educational psychologist (EP). The Council acknowledged it had missed the deadline to issue B’s EHC plan, which it said was 25 July (this appears to be an error and should read 2 September).
24. The Council also acknowledged it had never formally notified Mr M it had decided to issue an EHC plan for B, despite repeated chasing by Mr M.
25. The Council upheld Mr M’s complaint. It explained B’s case had not been allocated to a case officer at the time decisions were due to be made, and said this was due to unprecedented demand on its SEN service. However, it said it had now allocated B’s case and had made arrangements for an urgent decision on whether it should issue an EHC plan for him. The Council also explained the steps it was taking to improve its performance in SEN.
26. Mr M approached the Ombudsman on the same day. We referred his complaint back to the Council at this point, because it had not completed the Council’s two-stage complaints process.
27. The Council issued a stage 2 response on 20 December. It reiterated its findings from the stage 1 response, and noted it had issued a draft EHC plan for B on 24 October, although this had initially failed to deliver to Mr M’s email address. It had therefore re-sent it on 4 November. The Council apologised for the delay in doing so. It said it had then issued the final plan on 27 November, naming B’s current school, which it said was parental preference.
28. The Council apologised for the impact of this delay on B, and for its poor communication with Mr M. It offered Mr M a payment of £300 to reflect the distress caused by its fault.

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Analysis

29. I will address each element of Mr M’s complaint in turn.

The Council gave misleading information about converting the SEN document

30. Mr M says the Council informed him in February 2024 it could convert B’s SEN document directly to an EHC plan, which was incorrect, before telling him in April it needed to start the assessment process from the beginning. The Council denies this, and says it advised him correctly it could not convert the SEN document into an EHC plan.
31. Mr M has told me his contact with the Council in February was a phone call, although he believes he then followed up the call with an email the Council, which reflected the misleading advice it had allegedly given him.
32. But the Council says the earliest correspondence it has on its record was an email from Mr M dated 8 March, although it acknowledges Mr M said in his email that he had contacted the Council previously, on 12 February. Either way, I have reviewed the email of 8 March, and it makes no reference to the advice Mr M alleges the Council gave him. I have not seen any earlier correspondence between Mr M and the Council.
33. In the absence of any objective evidence to support Mr M’s version of events, therefore, I cannot find fault in this element of his complaint.

The Council delayed finding B a school placement

34. Mr B says the Council advised him in April he needed to apply for schools for B through the normal in-year admissions process. He did so, but none of the six schools he applied for offered B a place, and it was only in June that B started school, after the Council found him a place through the FAP.
35. Identifying and allocating a suitable school placement is part of the EHC plan process, and so a child with an EHC plan should not go through the normal admissions process. But B did not have an EHC plan at the relevant time, and so it was correct for the Council to tell Mr M to apply for schools himself.
36. The Council was also correct to tell Mr M it could not expedite the EHC needs assessment process in order to find B a school place. The EHC process is not simple, and given it is expected to take up to 20 weeks, it cannot be relied upon as a substitute for the normal admissions or FAP processes.
37. When, in his initial stage 1 complaint, Mr M made clear his efforts had been unsuccessful, the Council then said it would apply the FAP, and within a short period had found B a school place.
38. I acknowledge it was difficult for B to have waited approximately two months for a school place. However, the Government’s guidance on the FAP makes clear it is intended as a last resort, and that a school place should be sought through the normal admissions process first. It is unfortunate Mr M had no success in doing so, but this simply reflected the fact none of the schools he applied to had capacity to accept an extra pupil, something which was not in the Council’s control.
39. Once the Council applied the FAP, it quickly found B a school place. I do not know the precise dates, so I cannot say whether it happened within the statutory 20-day window; but even if not, it is clear there was no significant delay.
40. I am therefore satisfied the delay in B finding a school place, while unfortunate, was not due to fault by the Council.
41. In connection with this, Mr M has also complained the school that accepted B was not capable of meeting his needs, which it confirmed upon reviewing the EP advice generated during the EHC needs assessment. Mr M says the Council should urgently review the suitability of the placement.
42. I acknowledge the school expressed concerns about its ability to meet B’s needs, which is demonstrated by a letter it sent to Mr M in October, a copy of which I have seen (although I note the letter stops short of suggesting B should be placed elsewhere). However, the Council has also provided me with a copy of the school’s response to its consultation, in which it said it could meet B’s needs. Especially given these documents are of similar dates, it is difficult to reconcile the school’s conflicting positions.
43. Either way, when the Council issued B’s final EHC plan in November, this triggered a right for Mr M to appeal several different elements of it, including the named school placement. As described in paragraph 6, where such a right of appeal exists, the law generally expects a person to do so, rather than making a complaint to us. I will therefore not consider this point any further.
44. In addition, by law the Council must review B’s EHC plan annually anyway, and Mr M can raise any concerns he has about the suitability of his placement as part of the review. Mr M can also request an early review if necessary.

The delay in drafting and issuing the EHC plan

45. The Council received Mr M’s application for an EHC needs assessment for B on 15 April 2024. The law then gave the Council 20 weeks to complete the assessment process and (assuming it so decided) issue B’s finalised plan – a deadline of 2 September.
46. Not only had the Council not issued B’s plan by 2 September, however, it had not even yet confirmed it had decided to issue a plan for him. It eventually issued the final plan on 27 November, more than 12 weeks late.
47. The Council has acknowledged this fault, and explained it is due to high demand on its service and the resource pressures this presents. I accept this, but it remains the case it is fault the Council did not adhere to the statutory deadline.
48. I consider this fault caused Mr M, and by extension B, an injustice, because it meant B was attending school for approximately three months without an EHC plan setting out his needs and support requirements. I cannot speculate what material impact this had on B, but I am satisfied the delay caused distress and frustration to both.
49. In response to Mr M’s complaint, the Council has offered a remedy of £300 to reflect this. I consider this complies with our published guidance on remedies and so is an appropriate remedy, although I will still make a recommendation to this effect to formalise it.
50. I am also satisfied the Council has already provided an adequate apology to Mr M.

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Action

51. Within one month of the date of my final decision, the Council should offer to pay Mr M £300, to reflect the distress and frustration caused by the delay in issuing B’s EHC plan.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

53. 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