Summary: Ms X complained that the Council caused delays when deciding her son’s special educational needs support. We have found that the Council was at fault, and that this likely caused Ms X distress. The Council has agreed to make a symbolic payment to recognise her injustice.

The complaint

1. Ms X complains that the Council caused a long delay while deciding the support her son (Y) should receive for his special educational needs.
2. Ms X also complains that:
• While deciding the support, the Council refused to consult with her preferred schools and rejected professional evidence.
• The Council failed to deliver education to Y while he was out of school.
• The Council failed to respond to safeguarding concerns she raised about Y’s school.
3. Ms X says these failings caused herself and Y distress, and caused Y to lose education. She also says she suffered a financial loss from Y being out of school.

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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. If we are satisfied with a council’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)
6. 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

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. The law says we cannot investigate any matter which was part of, was connected to, or could have been part of, an appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. This means I cannot investigate any complaint about how the Council decided Y’s special educational needs support, including its consultation of schools, its consideration of evidence, or the support it eventually decided on. These things all were (or will be) linked to the Council’s ultimate decision on Y’s support – a decision which Ms X could have (or will be able to) appeal to the Tribunal.
10. Furthermore, as the reason for Y’s non-attendance at school was linked to Ms X’s disagreement about the suitability of the school (and as this disagreement could, ultimately, have been taken to the Tribunal) I cannot investigate her complaint about Y’s lack of education while he was out of school.
11. I cannot investigate how the Council dealt with safeguarding issues in Y’s school, because we cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
12. Ms X complained to us in November 2024, but part of her complaint is about events which took place more than a year before that.
13. We cannot investigate late complaints unless there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
14. I have seen no reason why it would have been unreasonable to expect Ms X to complain earlier about older events. So I cannot investigate any part of Ms X’s complaint which refers to events prior to November 2023.
15. I have, therefore, only investigated one part of Ms X complaint: about delays (since November 2023) to the Council’s decision on Y’s support.

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How I considered this complaint

16. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
17. 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

18. A child with special educational needs may have an education, health and care (EHC) plan. This document sets out their needs and what arrangements should be made to meet them.
19. Statutory government guidance (the ‘SEND code of practice’) says that, within six weeks of receiving a request for an EHC needs assessment, the council must write to the child’s parent and tell them whether it will do an assessment.
20. If the council decides to do an assessment, it must complete this within 16 weeks.
21. If the council goes on to issue an EHC plan, the whole process (from the assessment request to the plan being issued) must take no more than 20 weeks.
22. The Council, having initially refused to assess Y’s needs, changed its mind in January 2024 and agreed to start an EHC needs assessment. Following the assessment, it then agreed to issue a plan.
23. The Council should have issued this plan by May 2024. It did not do so until November. This was a six-month delay, for which it was at fault.
24. It is not clear what injustice the delay caused Y, because the Council’s ultimate decision was that he should stay in his existing school (at least for a short period). So, during the delay, he remained in a school which the Council considered suitable.
25. As I have said above, any disagreement Ms X had with that decision could have been appealed to the Tribunal. I cannot comment further on the suitability of Y’s school, and therefore will recommend no remedy for his injustice.
26. However, I am satisfied that the delay likely caused Ms X distress. Her right to appeal to the Tribunal about Y’s school – which she felt, very strongly, could not meet his needs – was significantly delayed.
27. The Council should provide a remedy to Ms X which recognises her injustice, in line with the Ombudsman’s remedies guidance.
28. Ms X paid for a private educational psychology report for which the Council has already refunded her. But she also paid for an occupational therapy assessment which has been used by the Council in its decision-making. The Council should refund her for this as well.
29. The Council wrote to Ms X in October 2024 and set out a plan to improve its service (to deal with a number of issues with its handling of EHC needs assessments).
30. This plan appears reasonable. Time will tell whether it is effective.

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Action

31. Within a month, the Council has agreed to:
• Make a symbolic payment to Ms X of £600 to recognise her likely distress from the delay to Y’s EHC plan.
• Make a further payment of £215 to reflect that Ms X paid for her own occupational therapy assessment.
32. The Council will provide us with evidence it has made these payments.

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Decision

33. The Council was at fault, and this caused Ms X an injustice, which the Council will now take action to address.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman