Summary: Miss X complained the Council poorly managed the process for issuing her child’s Education, Health and Care Plan. We find the Council at fault for a delay in issuing the final Education, Health and Care Plan, poor communication and a delay in issuing responses to Miss X’s complaints. The delays in issuing the final Education, Health and Care Plan impacted B’s access to education during a key transition year. The Council has agreed to apologise to Miss X and make a symbolic payment to remedy the injustice caused.

The complaint

1. Miss X complained the Council poorly managed the process for issuing her child, B’s, Education, Health and Care Plan. This includes a delay in issuing the final Plan, poor communication, poor complaint handling and a failure to provide access to education. Miss X told us the failures have profoundly impacted the family. Miss X told us B has missed education, his academic progress has stalled, and his confidence has deteriorated. Miss X also told us the family has experienced stress trying to navigate the system and the failures have placed emotional, financial and logistical strain on the family. Miss X would like the Council to address the communication failures and resolve outstanding complaints by reassigning them to an impartial investigator.

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The Ombudsman’s role and powers

2. 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.
3. 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)
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 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(1), 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 law says we cannot normally investigate a complaint where the person has a right to appeal to a tribunal about the same matter. The Council issued a final Plan in October 2024 which had a school named in section I. Miss X did not agree the named school was suitable and used her right to appeal.
8. 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)
9. 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.
10. For this reason, I have not investigated the part of Miss X’s complaint which relates to the Council providing B with access to education after his Education, Health and Care Plan was issued in October 2024.

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
12. 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

Legal and administrative background

EHC assessments and Plans

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. Section 44(2) of the SEND Regulations 2014 sets out that where a Tribunal order requires a local authority to carry out an EHC assessment, it should notify the parent within two weeks of the order that it will complete an assessment. Following the assessment, if the Council decides to issue an EHC Plan, it must issue the final Plan within 14 weeks of the date of the Tribunal order.

Council complaint policy

15. The Council has a published complaint policy which sets out the following process and timescales:
• At stage one the Council should provide written confirmation it will investigate the complaint at stage one of its process. The Council should provide a response within 20 working days of allocating the complaint to an investigating officer.
• If the complainant is not satisfied with the stage one response, they can request the Council escalate the complaint to stage two.
• At stage two the Council should provide written confirmation the complaint will be investigated at stage two. The Council should provide a response within 25 working days of the complaint being allocated to a senior manager.

What happened

EHC Plan

16. In April 2023 Miss X submitted a request for the Council to complete an EHC needs assessment for B. The Council refused the request, and Miss X submitted an appeal.
17. In March 2024 the Tribunal ordered the Council to complete an assessment of B’s Education, Health and Care needs. In accordance with statutory guidance the Council should have completed the assessment and issued B’s final EHC Plan within 14 weeks of the date of the Tribunal order. This means the final Plan should have been issued no later than 8 June 2024.
18. The Council did not issue B’s final EHC Plan until October 2024. This is a delay of approximately 4 months. The delay in finalising the EHC Plan meant there was no transition plan in place and no placement named for B’s transition to secondary school in September 2024.

Communication and complaint handling

19. Miss X submitted a complaint to the Council at the end of September 2024. Miss X complained about the delay in the Council finalising B’s EHC Plan and the lack of communication from the Council.
20. The Council provided a complaint response at the beginning of January 2025. In its complaint response the Council:
• Apologised for the delay in issuing its complaint response.
• Acknowledged the communication from the Council had not been efficient and it had failed to keep Miss X updated during the assessment process. The Council apologised and explained it had changed B’s caseworker which should improve the communication between Miss X and the Council.
• Acknowledged the delay in issuing B’s final Plan and apologised.
21. Miss X wrote to the Council within two weeks to request the Council investigate her complaint at stage two of its complaints process. Miss X explained the complaint response had been provided by one of the officers who was mentioned in the complaint as they had failed to respond to Miss X’s communication. Miss X felt this was a conflict of interest.
22. Miss X contacted the Council a further three times between January 2025 and February 2025 as she did not receive a response to her escalation request.
23. The Council issued its stage two complaint response in the third week of March 2025. In its stage two complaint response the Council again acknowledged the delay in issuing the final Plan and the lack of efficient communication. The Council did not consider the officer who completed the stage one investigation had a conflict of interest and said she was the best place officer to complete the stage one investigation. The Council explained it had a senior manager complete the stage two investigation to ensure impartiality.

My findings

24. There was a 4 month delay in the Council issuing B’s final EHC Plan following the Tribunal order. This delay impacted B’s access to education during a key transition phase. The delay also frustrated Miss X's right to appeal and caused distress and frustration for B and Miss X.
25. The Council acknowledged its communication with Miss X was not effective during the assessment process. This meant Miss X was not kept up to date with the process and decisions which were being made by the Council. The poor communication is fault which caused Miss X distress and frustration and meant she spent extra time contacting the Council for updates.
26. The Council failed to follow its set timeframes for issuing complaint responses to Miss X. This is fault which caused Miss X distress and frustration.
27. We have made recent service recommendations to the Council which relate to improving its complaint handling and timeframes for issuing EHC Plans, so I have not made any additional service improvements at this time.

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Action

28. Within one month of the final decision the Council will:
• Issue an apology to B and Miss X. 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 its apology.
• Make a symbolic payment of £600 in recognition of the injustice caused to B and Miss X by the delay in issuing the final EHC Plan.
• Make a symbolic payment of £250 in recognition of the time and trouble Miss X has spent chasing the Council as well as the distress and frustration caused by the Council’s poor communication and delay in complaint handling.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. 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