Summary: Mrs X complained about delays in issuing a final Education, Health and Care Plan for Y, delays in securing educational provision for Y, and delays in reimbursing her for the costs of therapies she funded herself. We find the Council at fault, causing frustration and uncertainty for Mrs X. The Council has agreed to apologise and make a payment to recognise the injustice.

The complaint

1. Mrs X complains about delays in issuing a final Education, Health and Care (EHC) Plan for her son, Y, following a tribunal decision in May 2024. Mrs X says the EHC Plan was not issued until August 2024, around two months late, which meant EHC Plan provision was not in place when it should have been. Mrs X has also said the Council delayed in reimbursing her for the costs of physiotherapy she paid for herself between June 2024 and September 2024.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
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. 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). 
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(1), as amended)
7. 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

8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. If someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, connected to, or could have been part of the appeal.
10. 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.
11. I have started my investigation from the point the Tribunal made its decision in May 2024 up until the point the Council responded to Mrs X’s complaint in January 2025. Any mention below of events that took place prior to May 2024 or after January 2025 are for reference only.

Back to top

How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I also considered the Ombudsman’s guidance on remedies.
13. Mrs 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

Relevant law and policy

14. A child or young person with special educational needs (SEN) 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. 
15. 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)  
16. 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.
17. 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)
18. Where the Council has been ordered to amend the special educational prevision specified in an EHC Plan, it must issue the amended EHC Plan within five weeks of the order being made.

What happened

19. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
20. The Councill issued an EHC Plan for Y in August 2022. Mrs X appealed the content of this to the Tribunal.
21. On 17 May 2024, the Tribunal ordered the Council to issue an amended EHC Plan.
22. On 21 June 2024, the Council missed the five-week deadline to issue an amended EHC Plan for Y. From this point, Mrs X began funding the hydrotherapy that the Tribunal had ordered be included in Y’s EHC Plan.
23. The Council issued a final EHC Plan for Y on 1 August 2024, around six weeks late, but this incorrectly stated Y would be starting school in September 2025 and needed to be amended.
24. On 12 August 2024, Mrs X asked the Council to reimburse the costs of hydrotherapy she had incurred as a result of delays in issuing a final EHC Plan following the Tribunal order.
25. On 27 August 2024, around two months late, the Council issued a final EHC Plan for Y with the Tribunal ordered changes. The Council has said the reason for the delay was due to capacity issues within its team. Y’s EHC Plan named School A and provided for 1:1 support staff, a package of direct Speech and Language Therapy (SALT), Occupational Therapy (OT) reviews and support, and specialist paediatric physiotherapy including hydrotherapy.
26. School A had on-site SALTs and OTs, but due to the nature of the provision specified by the Tribunal, the Council had to source additional therapies for Y. Because of this, when Y started at School A in September 2024, not all of his provision was in place. The Council has said the impact of this was mitigated as Y would still have had access to the therapists at school during that time. Y’s hydrotherapy sessions continued throughout this time.
27. The Council contacted different providers throughout September 2024 to try and source the SALT and OT provision set out in Y’s EHC Plan.
28. School A agreed it could use its own SALTs and OTs to meet Y’s provision and invoice the Council for this.
29. SALT provision started for Y on 7 October 2024.
30. Y was assessed by an OT on 25 October 2024, with direct therapy starting on 8 November 2024.
31. On 1 November 2024, the Council reimbursed Mrs X for the costs of the hydrotherapy she had incurred. The Council has said the delay here was due to capacity issues within its team.
32. The Council has said it has invested significantly to appoint new staff to its SEND and legal teams to avoid a recurrence of the delays that Mrs X experienced, as well as providing specialist training for staff to improve the service it offers.

Analysis

33. The Tribunal ordered the Council to issue an amended EHC Plan on 17 May 2024. This should have been finalised by 21 June 2024. However, the Council did not issue an amended plan until 1 August 2024, six weeks after the deadline to do so. It then had to amend Y’s school start date, meaning the final plan was not issued until 27 August 2024, around two months after the deadline. This is fault and caused uncertainty and frustration for Mrs X, which is injustice.
34. Once the EHC Plan was issued, the Council had a duty to secure the special educational provision named within it. Y started at School A in September 2024, but not all provision was in place for him. Y’s SALT provision did not start until 7 October 2024, and he did not begin receiving OT provision until 25 October 2024. This amounts to fault and caused further uncertainty and frustration for Mrs X, which is injustice.
35. The Council has said the injustice was mitigated as Y had access to the school’s SALT and OT therapists while he was awaiting his specific therapies to be put in place. While I have taken this point into account, I find the Council ought to take further action to address the injustice caused.
36. Due to delays with the Council issuing an amended EHC Plan for Y, Mrs X funded Y’s hydrotherapy herself. The Council agreed to reimburse Mrs X for the costs of this, but it took almost three months to do so. This delay amounts to fault and would have caused further frustration for Mrs X, which is injustice.
37. The Council has explained it has now appointed new staff and carried out training to prevent a recurrence of the identified faults going forward. I find this is a suitable remedy to ensure the fault does not get repeated, however I find the Council also ought to act to address the personal injustice to Mrs X.

Back to top

Action

38. To remedy the injustice caused by the fault identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Mrs X to apologise for the delay in issuing Y’s amended EHC Plan, for the delays in securing Y’s named provision, and for the delay in reimbursing the costs of the hydrotherapy she had funded herself. 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 the apology I have recommended in my findings.
• Pay Mrs X £200 to recognise the frustration and uncertainty caused by the delay in issuing Y’s amended EHC Plan and for the delay in reimbursing the costs of the hydrotherapy she funded herself.
• Pay Mrs X £200 in recognition of the delays in securing the provision set out in Y’s EHC Plan.
39. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman