Summary: Miss X complains the Council did not deal with her son Y’s education properly, causing loss of education. The Council took too long to issue Y’s Education Health and Care Plan and to provide a school placement. Miss X suffered delay to appeal rights, avoidable distress and Y lost education opportunity and special educational needs provision. The Council should pay Miss X £300 for avoidable distress and £5,500 for loss of education and special educational needs provision.

The complaint

1. The complainant, whom I shall refer to as Miss X, complaint is that the Council failed to deal with her son’s education properly because it:
• Failed to communicate with her;
• Did not complete an EHCP within statutory timescales;
• Failed to provide an educational placement; and
• Did not provide free school meals.
2. Miss X says she and her son suffered avoidable distress and her son missed educational opportunity.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. 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

Law, guidance and policies

Special Educational Needs

8. 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. 
9. 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.
10. Where a Council does not oppose an appeal concerning a decision not to carry out an EHCNA (Education Health and Care Needs Assessment), it must make the EHCNA and if necessary, issue a final EHC Plan as soon as practicable and within 14 weeks. (Special Educational Needs and Disability Regulations 2014 Reg 45)
11. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This 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 education, or name a different school. Only the tribunal can do this.
12. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
13. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).

General section 19 duty

14. 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.
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
16. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened?

18. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
19. Miss X asked the Council to complete an EHCNA in June 2023.
20. The Council decided not to complete an EHCNA for Y in August 2023. Miss X appealed this decision to SEND Tribunal.
21. The Council conceded the appeal in January 2024 and Tribunal directed that the Council complete an EHCNA as per paragraph 10.
22. The Council completed the EHCNA and decided it would issue an EHC Plan for Y. The Council requested advice from professionals to inform the EHC Plan.
23. In May 2024 Y was offered a placement at a mainstream school. In June the Council confirmed to Miss X that it was of the view that a special school was appropriate for Y.
24. It was agreed that Y could remain in his existing nursery placement until the end of the academic year.
25. A draft EHC Plan was prepared by the Council in June 2024. The Council consulted with schools about whether they could meet Y’s needs.
26. The Council did not identify a school placement for Y. In September 2024 it made arrangements for Y to receive tuition at home. This tuition was cancelled in October 2024.
27. Miss X complained to the Council in October 2024. The Council upheld her complaint at stage one of its complaints process about delays to his EHC Plan, finding a school placement and communication with Miss X.
28. The Council continued to look for a school place for Y.
29. Miss X asked for the draft EHC Plan to be updated and reinforced her complaint that it was now significantly delayed, escalating it to stage two.
30. The Council declined to update Y’s EHC Plan and in January 2025, fully upheld Miss X’s complaint at stage two.
31. In January 2025 the Council found a placement for Y at a special school, beginning in September 2025.
32. Miss X complained to the Council about why she hadn’t received free school meals for Y during the time he should have been in school. The Council initially refused her request. It then changed its decision and agreed to reimburse Miss X for these costs in the 2024/2025 academic year.
33. In March 2025 the Council issued Y’s EHC Plan.

Analysis

34. The Council accepts:
• that it has not been able to complete Y’s EHC Plan in the required timescales;
• there has been a delay in securing an appropriate placement for Y.
• that its communication had fallen short of the standard Miss X should expect.
35. I have reviewed evidence from emails and case records showing that:
• The Council consulted with a significant number of educational placements to try to find a school for Y.
• The Council provided s19 alternative education in the form of tuition, between September and October 2024.
36. Y’s EHC Plan should have been issued by April 2024. I agree with the Council. This is fault. Y’s EHC Plan was delayed by 11 months, equivalent to approximately three terms. Miss X’s appeal rights were also delayed by the same amount of time. Y has been out of school for longer than he should, albeit some of that time he has received some educational provision, either in a nursery setting or through home tuition.

Action by the Council

37. The Council says it:
• Has formulated an action plan;
• Has revisited working practices;
• Has put in place a training academy in place for all staff - new and existing.
• Has recruited 20 EHC plan writers now, alongside another 6 officers due to start by the start of the new academic year, and 2 new Team Managers and 2 Practice Development Officers.
• Is in the process of engaging an Educational Psychology agency for a 9-month contract to increase service capacity.
38. The Council has provided evidence that shows it is taking action to address the underlying cause around Miss X’s complaint, including a 5 year SEND Capital Plan which is now in draft. This sets out how the Council plans to address gaps in provision within the funds that are available and includes a variety of projects, including expansion of existing special schools, development of mainstream SEND Units, development of Post 19 provision and creating new special schools.
39. I consider these to be appropriate service remedies.
40. The Council has also now paid Miss X £390 in respect of missed free school meal entitlement. I have therefore not investigated this any further.

Ombudsman’s Guidance on Remedies

41. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £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 severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.
42. I have taken into account the fact that Y missed some education provision, the fact that some tuition was provided, SEN provision was delayed, his special educational needs as detailed in his EHC Plan and comments from Miss X in determining an appropriate remedy.

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Action

43. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise for the fault found. 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 I have recommended in my findings.
• Pay Miss X £300 in respect of avoidable distress.
• Pay Miss X £5,500 in respect of missed educational opportunity.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman