Summary: The Council was at fault for taking too long to assess Mrs X’s child, W, for an Education, Health and Care Plan and for failing to give a potential school for W accurate information about their needs. This meant W missed out on some special educational provision they should have had. To remedy W’s injustice, the Council will apologise, make a symbolic payment and issue a staff reminder.

The complaint

1. Mrs X complained about the Council’s involvement with her child, W’s, education. In particular, she complained:
1. The Council delayed completing an Education, Health and Care (EHC) assessment for her child, W. Mrs X said the delayed EHC assessment meant she had to commission educational provision for W when they could not attend the school they were on roll at. Mrs X said she was unable to fund a full-time education so W missed out on provision they should have had;
2. The Council removed occupational therapy provision from W’s draft EHC Plan;
3. The Council did not send her information about possible schools for W. It did not give accurate information about schools which had a bathroom that would be accessible to W and it withheld information about schools which may have accessible bathrooms;
4. The Council asked schools it consulted with about whether they could offer W a school place to not discuss the consultation with Mrs X;
5. The Council did not send a second draft of W’s EHC Plan to a school which offered W a school place based on the first draft, which had less special educational provision in it. Mrs X said this meant the Council wrongly named that school as W’s educational placement in their final EHC Plan, which ultimately delayed W getting the education they should have when the Council later agreed W should have Educational Otherwise Than At School (EOTAS);
6. That after issuing the final EHC Plan, the Council took too long to decide whether to agree W should have EOTAS instead of attending the school named in their Plan;
7. That after the Council issued a new EHC Plan for W naming EOTAS, it delayed providing the funding to allow her to commission the EOTAS provision;
8. The Council’s communication and stage two complaint response was poor. In particular, Mrs X is unhappy the Council said it had not issued W’s EHC Plan because she had not agreed W should attend a mainstream school; and
9. About how the Council responded to a subject access request she submitted.
2. Mrs X said the Council’s failings caused her and W significant distress.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(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. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement, (Local Government Act 1974, section 24A(6), as amended, section 34(B)).
8. I have not investigated parts (b) to (d) of Mrs X’s complaint. This is because any fault did not cause her or W a significant personal injustice.
• The Council removed some occupational therapy provision from W’s draft EHC Plan. I have not investigated this because the Council reinstated the occupational therapy before issuing the final Plan.
• The Council did not send Mrs X information about possible schools for W. This included that it did not give accurate information about schools which had a bathroom that would be accessible to W, and it withheld information about schools which may have accessible bathrooms. I have not investigated this because the Council did not name any of the schools in question in W’s EHC Plan.
• The Council consulted with two schools and asked them not to speak to Mrs X about the consultation. I have also not investigated this because the Council did not name the schools in W’s EHC Plan.
9. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
10. The Council has not had an opportunity to investigate and respond to parts (e) to (g) of Mrs X’s complaint. However, I have decided to investigate them because they are closely linked to Mrs X’s complaint about the EHC assessment delay. It would be difficult to come to a meaningful conclusion on Mrs X’s complaint without considering the additional issues.
11. Under the General Data Protection Regulation, individuals have the right to make a subject access request (SAR) to obtain a copy of the personal data an organisation holds about them. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about how an organisation responded to a SAR. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).
12. Mrs X is unhappy about how the Council responded to a subject access request she made (part i of her complaint). She has complained to the Information Commissioner and received a response. Given this, I have seen no good reason to investigate the matter.

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How I considered this complaint

13. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

15. 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 SEND Tribunal or the council can do this. The sections include:
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Assessments

16. 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. 
• 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. 
• Councils must obtain advice from certain people including an educational psychologist and the child’s existing school.
• 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.
• The council must consult with the parent or young person’s preferred educational placement.

17. Instead of asking the council to name a preferred school, parents can ask the council to agree Education Otherwise Than At School (EOTAS). EOTAS is a form of education where the child receives provision wholly outside of a school setting. It can be made up of several different kinds of provision. Councils should only agree EOTAS when there is evidence showing the child would not be able to attend any other school.

Personal budgets

18. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
19. A personal budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a personal budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Alternative provision

20. 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. (Education Act 1996, section 19).

Complaints handling

21. The Council operates a two stage complaints process. Its policy says it will respond at stage one in 15 working days and at stage two in 20 working days.

What happened

22. This section sets out the key events in this case and is not intended to be a detailed chronology.
23. In spring 2024, Mrs X withdrew W from their school and began electively home educating them. ‘Electively’ means a parent using their right to educate their children at home. Mrs X paid for some provision alongside the education she was delivering.
24. Mrs X asked the Council to assess W for an EHC Plan in early June 2024, which the Council agreed to do. It began gathering information on W’s needs. This included advice from an Educational Psychologist (EP), who recommended strategies to help W access and benefit from education.
25. In mid-October 2024 Mrs X complained to the Council about the delay assessing W.
26. At the end of the month, the Council decided W needed an EHC Plan and issued their draft EHC Plan.
27. In early November, after queries from Mrs X, the EP gave the Council more detail on the strategies they had recommended. The updated strategies required more input from the school W might ultimately attend. For instance, a strategy originally said “A social skills programme might be introduced to [W] to help [them] understand social interactions”. The updated version said “A social skills programme should be delivered to run over a minimum of 10 weeks to ensure there is an emphasis on a relational approach at a pace suitable to [W]. There should be opportunities for direct instruction, adult modelling and scaffolding and the rehearsal of skills in a small group setting of up to four children”.
28. The Council responded to Mrs X’s complaint at stage one of its complaints procedure shortly after. It accepted it had taken too long to assess W’s needs. It said this was because it had accidently marked W’s case as one where the 20-week timescale did not apply. Mrs X was unhappy and asked for a stage two response a few days later.
29. Around the same time, Mrs X told the Council it was not appropriate for W to be electively home educated. She said she wanted the Council to agree EOTAS because she felt W needed to be educated out of school, rather than it being her personal choice to do so.
30. In mid-December 2024, the Council replied at stage two of its complaints procedure to say:
• Mrs X had asked it to agree EOTAS for W and it would consider that request as part of the EHC assessment;
• It could have issued W’s EHC Plan within the timescales by naming a mainstream school. It had not done so because Mrs X did not want it to;
• It had consulted with three schools and two of them had said they could not provide W a school space; and
• One of the schools it had consulted, school A, had not yet responded. If school A said it could not accept W, the Council would agree a personal budget for EOTAS.
31. School A considered W’s draft EHC Plan and said it could offer W a school place. The Council issued W’s final amended EHC Plan in mid-January 2025. It named school A. Unlike the draft Plan, the final version included the updated strategies the EP had recommended.
32. In early February, school A told the Council the updated EP strategies were a significant change to the provision W needed. School A said that even if it tried its best, it did not think it could meet W’s needs and deliver the provision in their final EHC Plan.
33. As a result, the Council issued an amended EHC Plan for W in mid-March. It named EOTAS. The personal budget set out W would receive:
• Weekly solo and group art therapy;
• Weekly outdoor therapy;
• A one-off package of occupational therapy;
• Weekly swimming lessons; and
• Tutoring.
34. The Council arranged the art therapy, outdoor therapy and occupational therapy soon after, and paid the providers itself.
35. The Council agreed to pay Mrs X a lump sum as a direct payment so she could commission the swimming lessons and tutoring herself. It asked Mrs X to sign a contract for the payment, which she returned completed in early March.
36. Mrs X asked the Council to fund a gym membership too, which it later agreed to. The Council sent Mrs X an updated contract which she signed and returned in early April. The Council sent her the money for the tutoring, swimming lessons and gym membership less than a week later.
37. The Council also agreed to refund the costs Mrs X had incurred funding the swimming lessons and tutoring since the date of the March EHC Plan. It made that payment in mid-April.

Findings

EHC assessment

38. To comply with the legal timescales, the Council should have assessed W’s needs and issued their EHC Plan by late October 2024. The Council issued the Plan in mid-January 2025. This was almost three months late and was fault.
39. I have not made a recommendation to prevent injustice from similar fault in future as there is no evidence of a systemic issue; the Council accidentally marked W’s case as exempt from the 20-week timescale.
40. The Council issued the January 2025 Plan naming school A, as the school said it could meet W’s needs. However, school A made that decision without the full facts. The Council failed to send school A a copy of the updated strategies the EP provided in November. This was fault. The new strategies required substantially more input from school A, a demand it was later clear it could not meet. While the Council could have still named school A even if it said it could not meet W’s needs, it ultimately accepted school A was unsuitable and agreed EOTAS for W. Therefore, on balance of probabilities, had the Council not been at fault, it would have agreed EOTAS instead of naming school A in W’s first EHC Plan.
41. The faults set out in paragraphs 38 and 40 meant W missed out on special educational provision they should have had between late October 2024 and mid-March 2025. Taking into account school holidays, this was just over one term’s worth of education.
42. After the Council issued W’s amended EHC Plan in mid-March 2025 naming EOTAS, it commissioned their occupational therapy, art therapy and outdoor therapy without significant delay. However, it delayed making the direct payment for W’s tutoring and swimming lessons by six weeks. This was fault. It appears this delay was because when Mrs X asked the Council to also fund a gym membership it delayed making any payment until it had resolved that issue. However, the Council had agreed W needed tutoring and swimming lessons and Mrs X had returned the signed contract for those payments in early March. It should have arranged for Mrs X to have the direct payment for that provision without delay and arranged for a further payment to cover the gym membership later.
43. The fault did not cause W an injustice because Mrs X was able to fund the tutoring and swimming lessons herself. The Council has now reimbursed Mrs X for that provision so there is no financial injustice to her. She is left with frustration.

Alternative provision

44. Mrs X took W out of their school and began home educating them because she felt the school could not meet W’s special educational needs. That was her choice and meant the Council did not have to arrange alternative education for W.
45. Mrs X later said W should have EOTAS instead of home education. By that time, the Council had already begun the EHC assessment process. The Council acted appropriately by considering what educational placement W should have as part of the assessment and so was not at fault for not arranging alternative provision.

Communication and complaints handling

46. The Council responded to Mrs X’s stage one and two complaints slightly later than it should have done. However, the delay does not amount to fault.
47. The Council was not at fault for explaining to Mrs X that it could have finalised W’s EHC Plan in timescale by naming a mainstream placement but had not done so as it was not her preference. That was an accurate statement.
48. I have reviewed records of Mrs X’s contact with the Council. Any issues were not significant enough to amount to fault.

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Action

49. Within one month of the date of my final decision, the Council will take the following actions:
1. Apologise to Mrs X for the frustration caused by the delay sending her the direct payment for W’s swimming and tutoring. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Mrs X £1200 to recognise the impact of the lost education on W.
3. Remind staff that if they receive comments on a child’s draft EHC Plan which will result in the Council significantly increasing the special educational provision a child needs, they should provide details of those changes to schools it is consulting with. This will enable schools to provide an accurate view on whether they can meet the child’s needs.
50. The Council will provide us with evidence it has complied with the above action.

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Decision

51. I find fault causing injustice. The Council has agreed to take action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman