Summary: Mrs J complained the Council delayed its assessment of Mrs K’s son’s education health and care needs. It also failed to provide him with education, or the contents of his Education, Health and Care Plan, after he was excluded from school. We uphold the complaint. The Council has agreed to our recommendations to increase the symbolic payment it has already offered for the injustice to Mrs K’s son, because of education he has missed out on.

The complaint

1. Mrs J is a professional working with families. She complains on behalf of the complainants, Mrs and Mr K. Mrs J complains:
• the Council delayed its assessment of Mr and Mrs K’s son (X) Education, Health and Care (EHC) Plan;
• the Council delayed providing X with education after he was excluded from school;
• when provision for X did begin, it was not full-time;
• the Council was not fulfilling its duty to provide the contents of X’s EHC Plan.
2. Mrs J says the faults meant X did not receive important provision and missed the opportunity to interact with peers. It also affected Mrs K’s mental health and Mr K’s work arrangements.

Back to top

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 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)
4. We cannot investigate late complaints unless we decide 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)
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 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.
7. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

10. We cannot usually consider matters that a complainant was aware of more than 12 months before their complaint to the Ombudsman (see paragraph 4). Most of Mr and Mrs K’s complaints are in time. But the complaint about the delay in the first EHC Plan is late. The plan was overdue from around April 2023 and Mrs J did not complain until December 2024.
11. But Mrs J tells me that Mr and Mrs K do not have the language skills nor knowledge of the process to have complained without support. Mrs J says she started working with the family in June 2024. At first she concentrated on trying to get X some alternative provision. She began to complain in July. The Council did not complete its responses until December 2024. Mrs J then complained to the Ombudsman.
12. In those circumstances, it is not reasonable to have expected an earlier complaint, so I have considered matters back to the original request for EHC needs assessment in November 2022.
13. But my investigation ends in July 2024, as Mr and Mrs K have appealed the EHC Plan (see paragraph 5).
14. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal the power to do the following: 

• Regulate its own procedure. The Tribunal Procedure Rules give the Tribunal extensive case management powers. 
• Take ‘such action as it considers just’ if a party fails to comply with a requirement in the Tribunal Procedure Rules, a Practice Direction or a direction by the Tribunal. 
• Make an order for costs if it considers a party has acted unreasonably in bringing, defending or conducting proceedings. 
• Require the council’s response to the appeal to include the views of the child or the reasons why the council has not asked for those views. 

15. As the following statement shows (see for example paragraph 35), the Tribunal judge has made Orders relating to the education programme the Council has been providing X while the family await an appeal date. So that means X’s educational provision is something I cannot investigate from the date the Council issued the EHC Plan that Mr and Mrs K appealed. That means I cannot investigate Mrs and Mr K’s complaint about the provision only being part-time.

Back to top

How I considered this complaint

16. I considered evidence provided by Mrs J and the Council as well as relevant law, policy and guidance.
17. Mrs J, Mrs and Mr K 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

18. 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.
19. 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.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• 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.

20. A council must review and amend an EHC Plan in enough time before a child or young person moved between key phases of education.

Alternative provision

21. 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.

What happened

22. X was born in 2019. In November 2022 his pre-school placement asked the Council to carry out an EHC needs assessment.
23. On 5 January 2023 the Council agreed to carry out an assessment. It requested an assessment from, amongst others, an educational psychologist.
24. The Council says a draft of the educational psychologist’s report was available before the end of January. But, due to an administrative error, its Special Educational Needs and Disabilities (SEND) Team did not receive the report until mid-June.
25. X was due to move between stages of education. The Council says, for this reason, it prioritised his EHC needs assessment. It produced a draft in September. On 13 October it issued its final EHC Plan. It named the school X was attending.
26. In early November X was permanently excluded from his school. The Council says its Alternative Provision Service contacted Mr K the following week. He had a strong preference for the Council to find another school place for X. The Council offered X a place in a school in a different town. Mr K said this was unsuitable for X due to the travelling to get to the school. The Council says it put X on the waiting list for another school.
27. The Council says it was contacting tuition providers about education out of school for X. But, as X needed 2:1 provision, it did not find a provider able to meet X’s need until February 2024. The provider the Council found then had to undergo a recruitment process for X’s tutors.
28. In March 2024 the Council held an annual review of X’s EHC Plan.
29. Mrs J began working with the family in June. She says she was at first focussing on getting X some alternative education provision in place. She spoke to the Council’s Alternative Provision Team.
30. On 3 July the Council issued a new EHC Plan.
31. In mid-July Mrs J complained about the lack of education the Council had provided since X was excluded from school. She also appealed the contents of X’s EHC Plan.
32. At the end of July the Council responded to Mrs J’s complaint. The response upheld the complaint. Mrs J asked to escalate the complaint. She says this was because Mr and Mrs K were concerned about X’s continuing lack of alternative education provision and the contents of his EHC Plan.
33. Educational provision for X, out of school, started in September. Mrs J says this was for nine hours a week. Her and the family’s views are X could take more education than this.
34. In October the Council advised it had found X a place at a school with a September 2025 start.
35. From November, the SEND Tribunal made a series of Orders. These included requirements for the Council to provide the Tribunal with details of its searches for extra alternative education provision for X. The Council’s responses detailed its efforts to find extra provision.
36. In mid-November the Council provided its response to Mrs J’s complaint at the second stage of its procedure. It noted:
• it had changed the way its Educational Psychology and SEND Teams exchanged information;
• if X’s EHC Plan been in place in April 2024 (ie without delay), it would have been considered at the Council’s termly Admissions Panel for the relevant complex needs school(s). The delay meant X’s case missed one meeting;
• the high number of cases its Admissions Panels considered. It gave some statistics to show the low number of offers per school when compared to the number of cases;
• it accepted X had no alternative education provision for a period, but noted the Council was regularly working to try to remedy that.
37. The complaint response recommended:
• an apology;
• a payment of £900 for each of the three terms that X was without education (£2700);
• a payment of £500 to recognise Mr and Mrs K’s distress and uncertainty due to the delay in completing the EHC needs assessment;
• the Council ensure its systems in place to follow up on advice from educational psychologists and other professionals were robust and supported timeframes for EHP Plans deadlines to be met.
• the Council ensured systems in place to prioritise placements were robust.
38. In December the Council provided an apology to Mr and Mrs K.
39. Mrs J complained to the Ombudsman in December 2024. I spoke to her. She advised X’s main needs were about communication and interactions. The time without education meant that, not only was X receiving not education, he was also not getting out of the house much (as Mrs K could not take him out alone and Mr K worked most days), so not interacting with other people.

Analysis

40. I can see the Council was working to find X with a provider after he was excluded from school. But the Council was not able to find a suitable provider due to lack of capacity. And, when it did find one, there was a further delay, due to the provider’s own procedures.
41. I appreciate the difficulties the Council faced. But the delay in finding a provider indicates service failure. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend, as here, a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
42. The Council’s complaint response correctly identified fault in this complaint (see paragraphs 36 and 37). I have compared the remedies offered in that response with our own Guidance on Remedies. I have looked at the apology letter and conclude it is adequate when compared to our guidance. The symbolic remedy to Mr and Mrs K for their distress is also broadly in line with our guidance.
43. However, the remedy the Council offered for X’s missed education is consistent with the bottom of the Ombudsman’s recommended range. Given what Mrs J has told me about what X has missed due to the delay in arranging a tutor (including the missed EHC Plan provision) and that he was at a key stage change, my decision is that the Council’s offer does not adequately reflect the injustice to X.
44. In response to my draft decision, the Council set out its progress on the service improvements implemented as a response to Mr and Mrs K’s complaint:
• it had introduced a new process so that its SEND Casework Team were notified on completed educational psychologist reports within two days;
• it now had a central tracking system to monitor overdue advice which generated weekly reports for its relevant teams. These reports were reviewed by a monthly oversight meeting.

Back to top

Agreed action

45. I recommended that, within a month of my final decision, the Council takes the following actions. Remedies a) and b) are intended as a substitute for the remedies offered in the Council’s complaint response.
1. Pay Mr and Mrs K £500 for the distress and uncertainty caused by the delayed EHC needs assessment.
2. Pay Mr and Mrs K £5000 for X’s loss of educational provision and not providing him with the provision set out in his EHC Plan for the three terms this investigation considers. Mr and Mrs K should use this payment for X’s educational benefit as they see fit.
46. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

Back to top

Final Decision

47. I find fault causing injustice. The Council has agreed to my recommendations to remedy injustice, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman