Summary: Ms J complains about delays in the Council’s Education, Health and Care needs assessment for her son. And that, after an appeal, the Council refused to refund fees they paid for her son’s education. We do not find fault as the Council carried out its assessment within statutory timeframes. The question of fees is outside the Ombudsman’s jurisdiction, as Ms J has used her appeal right.

The complaint

1. Ms J complains about:
• delays in the Council’s Education, Health and Care (EHC) needs assessment for her son (X); and
• after an appeal, the Council refused to refund some of the fees they paid for X’s education.
2. Mrs J wants the Council to refund all fees paid since September 2023.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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. 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to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.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.
8. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
9. 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

How I considered this complaint

10. I considered evidence provided by Ms J and the Council as well as relevant law, policy and guidance.
11. Ms J 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

Legal and administrative background

12. 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 the council can do this. 
13. 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.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

14. 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.

What happened

15. Ms J first asked for an EHC needs assessment in June 2023. In July, the Council’s decision was to not proceed with an assessment. Ms J appealed.
16. From September X started attending a nursery at a fee paying school.
17. In October the Council conceded the appeal and agreed to carry out an EHC needs assessment.
18. The Council says it started its assessment on 13 October 2023. It finalised X’s EHC Plan and issued it on 14 February 2024. At Section I it stated ‘early years provider’.
19. Later in February, Ms J appealed the Council’s decision. The Tribunal made its decision in August. It noted it was naming a named fee paying school at Section I. This was the school attached to the nursery X was attending.
20. X had his fifth birthday in August and started at his new school in September.
21. The Council issued its amended EHC Plan withing five weeks of the date of the Tribunal Order.
22. The Council agreed funding of the school in November. It said it would pay the school directly from that date.
23. In response to a complaint by Ms J the Council said it would consider a refund of fees she had already paid, if she provided invoices. Ms J escalated her complaint as her view was she had already provided invoices.
24. The Council’s stage two response advised:
• it apologised for the delay in its first response and it setting up the school funding;
• its education governance board had agreed it would refund school fees they have paid from 1 September 2024, although it named some fees that it would not fund;
• any costs from before this was due to their choice of nursery placement. The Council did not agree to refund those fees.
25. In January 2025 Ms J complained to the Ombudsman. Our investigation considered the Council’s decisions compared to the statutory time limits. We also asked the Council about the fees, from September 2024, it had refused for fund.

Analysis

26. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
27. Ms J complains about the Council’s refusal to refund fees they have paid and a delay in the Council’s EHC needs assessment process. The Council has refunded fees back to September 2024, except for some fees it found ineligible. I have checked the fees the Council found ineligible and agree with the Council these are not related to the contents of X’s EHC Plan.
28. Ms J wants the Council to also refund fees back to September 2023.
29. We investigated to consider if there was any delay by the Council which might have delayed Ms J’s appeal rights. We found:
• in June 2023 Ms J first applied for an assessment. In July the Council gave its decision. That decision was within six weeks;
• Ms J appealed. In October the Council conceded the appeal and agreed to carry out an assessment. It started this assessment later in October and then produced a final EHC Plan in February. That assessment took less than 16 weeks;
• Ms J then appealed the final EHC Plan.
30. All the Council’s action in this chronology were made within the timescales set out law and guidance. The time between Ms J appealing and the Council conceding the appeal are outside the scope of what the Ombudsman can consider. So, while the process undoubtedly took some time, I cannot find that this was due to fault by the Council.
31. The Ombudsman cannot investigate any actions where the complainant has used a right of appeal to a Tribunal. Ms J has used her appeal right here. The fact the Tribunal did not provide a remedy for part of Ms J’s complaint (the backdated nursery fees) does not change our ability to investigate. That is because caselaw has established that the fact that a complainant may be left without a remedy does not mean that a complaint will be within the Ombudsman’s jurisdiction (see paragraph 8).
32. So there are areas of the complaint the Ombudsman cannot consider. And I have found no fault in the parts of the complaint I have investigated.

Back to top

Decision

33. I find no fault with the parts of the complaint I have investigated.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman