Summary: Ms X complained the Council missed deadlines in her sons Education, Health and Care Plan and the communication has been poor. This has caused distress and her son to miss education. The Council has accepted fault and has offered a package of remedies.

The complaint

1. Ms X complained the Council missed legal deadlines in her sons (S’s) Education, Health and Care (EHC) Plan. Ms X says S has missed over a year of education.
2. She also complained her son had multiple case workers and their communication has been poor and delayed. This has caused Ms X, S and the whole family distress.
3. Ms X would like the Council to stick to the statutory timeframes, make her sons case a priority and compensate him for his missed education.

Back to top

The Ombudsman’s role and powers

4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

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

6. 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)

Back to top

What I have and have not investigated

7. I have only investigated the complaint as set out by Ms X about delay in the Council issuing the final EHC Plan, C missing education and poor communication. I have not investigated the contents of the EHC Plan itself. If Ms X is not happy with this, she has a right of appeal to the Tribunal.
8. The law says the Ombudsman cannot investigate complaints where there is a right of appeal to the Tribunal. We would normally only investigate the period until the Council issues the final EHC Plan, as this gives the complainant the right to appeal. In this case, the date of the final EHC Plan is August 2024, and falls after the end of the academic year. Ms X could have appealed the suitability of the EHC Plan at this point.
9. The Ombudsman has discretion to investigate matters beyond when an appeal right was given. In this case, following the final EHC Plan, Ms X requested mediation and had a reasonable expectation the Council would find a suitable school in a reasonable time frame. It was reasonable that Ms X did not appeal.
10. In response to my enquiries, the Council offered a remedy for C’s missed education from November 2023 to July 2025. This includes the above period, ending with the right of appeal in August 2024 which falls within my investigation. It also includes the full academic year starting September 2024. It is not proportionate for the Ombudsman to investigate from September 2024 onwards. This is because further investigation would be unlikely to lead to a different outcome, and the child’s injustice is likely to have been remedied for that period already, through the Councils offer of a remedy.

Back to top

How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

The 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. 
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
16. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Mediation and appeal

17. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
18. A child’s parents or the young person do not have to consider mediation if their disagreement only relates to the placement named in section I or that no placement is named in section I.
19. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

20. 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)
21. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
22. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
23. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

What happened

24. I have summarised below the key events; this is not intended to be a detailed account.
25. C is on the roll at mainstream school with support from an EHC Plan.
26. His first EHC Plan is dated May 2023.
27. From the start of the new academic year in 2023, C’s attendance at school decreased. In November it was at 55%. For the period September 2023 to the middle of July 2024, his overall attendance was around 24%.
28. The Council became aware C’s attendance was decreasing and held an Emergency Annual Review in November 2023.
29. In late January 2024, the Panel agreed C needed specialist provision.
30. The Council consulted with several specialist schools but had not been able to secure a place for C.
31. The School commissioned alternative provision in April. This was for one, three-hour session per week.
32. The Council issued a draft EHC Plan in early May and an amended version in late May.
33. The Council issued a final version of the EHC Plan in August.
34. For the academic year starting in September 2024 to the middle of March 2025, C’s attendance was just under 20%.
35. In September, the Council took over the arrangements for the alternative provision. This provision is still in place to the present day.
36. In October, the Council commissioned a second alternative provision provider to deliver ten hours of provision per week. The Council commissioned this until May 2025.
37. Ms X asked for mediation and a meeting took place in early October. Ms X told me the Council said she should wait to appeal the EHC Plan as it was going to make changes to it. Ms X did not appeal to the Tribunal. The Council told me it has no records of Ms X appealing and referred to the mediation meeting.
38. The Council issued a new EHC Plan in February 2025.
39. In March, Ms X told the Council C was struggling with the tuition and had only accessed around six sessions.
40. In May, the Council commissioned a different provider for 15 hours per week. This is extra to the original provision of three hours per week.

The complaint

41. Ms X complained to the Council in July 2024.
42. The Council issued a stage one response in August and a stage two response in October.
43. The Council upheld Ms X complaint. It accepted it had not complied with the statutory timescales and apologised for the delay. It also apologised for the lack of communication.
44. The Council explained there has been a high staff turnover which impacted on continuity, timescales and delays. The Council said it is restructuring the Special Educational Needs and Disability (SEND) team to manage and stabilise the issue.
45. Ms X complained to the Ombudsman in November.
46. In response to my enquiries, the Council accepted there was significant delay issuing its decision following the Annual Review in November 2023 which frustrated the parents right of appeal.
47. It accepted there has been several attempts to secure provision for C and there has been delay providing consistent full-time provision named in section F of the EHC Plan. The Council accepted this has caused an injustice to C and their family which it apologises for.
48. The Council explained it has restructured the SEND team and has introduced processes for staff to ensure it offers the right support to children and their families. The SEND team are also rolling out training to all staff. The Council is working with partners to develop proposals to increase the number of special school places.
49. In response to my enquiries, the Council said it recognises the injustice caused by its failure to secure consistent full-time provision since November 2023 and offered a financial remedy of £6,000. This is calculated at £1,000 per term for almost six terms or two academic years, since it was notified C could not attend school.
50. The Council also offered £600 for the delay in processing the annual review and the distress and uncertainty this has caused to C and his family. It has also offered £250 for distress caused by the high staff turnover and how this has affected communication and an extra £100 for time and trouble.
51. The total remedy the Council has offered is £6,950.

Back to top

Analysis

52. Following the emergency annual review in November 2023, the Council should have issued a decision within four weeks and the final EHC Plan within 12 weeks. These are statutory timeframes. The Council issued the final EHC Plan in August 2024 which is roughly six months delayed. This is fault.
53. In its complaint response, the Council accepted it did not complete the EHC Plan within the statutory timeframes and apologised for the delay. In response to my enquiries, the Council reiterated this fault and offered £600 for the uncertainty and distress caused. This is on the high end of what is recommended in the Ombudsman’s guidance on remedies and is a suitable remedy.
54. In its complaint response, the Council accepted its communication has been poor, which was affected by the high staff turnover. It apologised to Ms X. In response to my enquiries, it repeated this explanation and apology and offered a financial remedy of £250 for distress caused by poor communication and an extra £100 for Ms X’s time and trouble. This is in line with the Ombudsman’s guidance on remedies and is suitable.
55. While C remained on the roll at mainstream primary school, he did not attend full-time since the start of the academic year in 2023. During this time, the School and the Council commissioned different alternative provisions which had varied levels of success. Provision has been available to C during this time.
56. The Council recognises C has missed education and offered a remedy of £6,000, this covers the period November 2023 to July 2025. The offer calculated per term is in line with the Ombudsman’s guidance on remedies. I am satisfied this remedy is suitable for the period I have investigated, ending in the summer of 2024. I am also satisfied this remedy is a suitable offer for missed education for the academic year starting in September 2024. As discussed above, it would not be proportionate to investigate this further as it would be unlikely to lead to a different outcome and the child’s injustice is likely to have already been remedied for that period.

Action already taken by the Council

57. The Council explained it is restructuring and training its SEND team and is working with partners to increase the number of specialist school places. I do not consider I need to make any further service improvements.
58. The Council has apologised to Ms X and offered to make a financial remedy in response to my enquiries. I do not need to recommend any further personal remedies.

Back to top

Action

59. Within four weeks of my final decision, the Council should provide evidence it has complied with the action it has agreed to take in response to my enquiries, as set out in paragraph 49 to 51 above.
60. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman