Summary: Miss B complained the Council delayed issuing her son’s education, health and care plan. We found fault which caused distress, uncertainty and delay to appeal rights. The Council has agreed to make a symbolic payment to Miss B to remedy this.

The complaint

1. Miss B complained the Council delayed issuing her son’s education, health and care plan, causing her to have to fund his place at nursery and a delay in securing a school place.
2. Miss B says the Council’s actions caused her significant distress, leading to her being on antidepressants and needing a social worker. She was also caused financial hardship and her son’s development and education has been affected. She wants the Council to make improvements to prevent this happening to other families.

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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. 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. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended)
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).

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How I considered this complaint

8. I spoke to Miss B about her complaint and considered the information she sent, the Council’s response to my enquiries and the Special Educational Needs and Disability Code of Practice ("the Code").
9. Miss B and the Council had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

10. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
11. Parents have a right of appeal to the Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
12. The Ombudsman cannot look at complaints about what is in the EHC plan, such as the SEN provision or named setting, but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

EHC needs assessment

13. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request.
14. If the council agrees to assess, it must seek information and advice on the child's needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child. The Code says:
• 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; and
• 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).
15. Councils must give the parent 15 days to comment on a draft EHC plan and express a preference for an educational placement. They must then consult with any educational placement that may be named in the plan. Schools must respond within 15 calendar days. (The Code, paras 9.77 – 9.80)

Primary school admissions

16. Children start school in the September after their fourth birthday. Parents should apply to the council for a school place by January of the year the child is due to start. The council will notify them of their allocated school on national offer day in April. If a child has an EHC plan, this will name the school they will attend.
17. Reception class children have no right to alternative provision if they are unable to attend school, until they reach compulsory school age following their fifth birthday.

What happened

18. Miss B’s son, M, has autism and learning difficulties. He was attending a mainstream nursery which Miss B was funding. M was due to start in reception of primary school in September 2024. On 25 October 2023, the nursery asked the Council to assess M’s EHC needs.
19. I have not seen evidence that Miss B applied for a mainstream school place during the normal admissions round. She told me she had applied to specialist settings but they said they could not accept M without an EHC plan.
20. The Council agreed to carry out the assessment on 8 November. This meant the final EHC plan should have been issued by 13 March 2024.
21. In response to my first draft decision statement, the Council sent evidence that a draft EHC plan was issued on 24 April 2024. On 26 April, the Council consulted with some schools, including a mainstream primary school, School X and its resource base (School Y) which is a dedicated unit that provides specialist support for pupils with SEN. School’s X and Y replied on 24 May. School X was unable to meet M’s needs, School Y said it was full. The Council consulted nine further schools but none could accept M.
22. In September, M remained at nursery as there was no school place. Miss B continued to fund this.
23. In response to my first draft decision, the Council sent evidence that on 1 October it issued a final EHC plan (dated 17 September) to Miss B. The final plan named M’s nursery and provided for a full-time one-to-one teaching assistant and adult support for unstructured times of the day. The Council has accepted that the final plan was mislabelled as “draft” but the covering letter set out Miss B’s appeal rights.
24. From this point, the Council was obliged to fund M’s attendance at nursery as it had been named in the EHC plan. The Council made a payment to the nursery on 11 October.
25. Miss B complained to the Council on 4 December that the EHC plan had taken a year to finalise, there was no school place and she was having to fund the nursery. The Council reimbursed Miss B for the costs of the nursery on 20 December.
26. In January 2025, M started at School X. Miss B told me this was not suitable as it was mainstream provision.
27. The Council replied to her complaint on 8 January and apologised for the delay in reimbursement. It said the delay in issuing the EHC plan was due to service changes and unprecedented increased demand. M had now been allocated a case officer and the Council had reserved a place in School Y which M would move to as soon as it became available.
28. Miss B remained dissatisfied and asked for her complaint to be escalated. She said she had secured the place at School X because M was no longer able to attend nursery due to his age, although it was an unsuitable setting and the headteacher was unaware that M was moving to School Y. In response to my first draft decision, the Council said it had worked with the headteacher to support M's placement in School X until a place in the resource base became available.
29. The Council issued a further final EHC plan on 24 January naming School X. Miss B then had a new right to appeal to the Tribunal.
30. The Council’s final complaint response on 11 February said M would be given a place in School Y when available, this should be by Easter.

My findings

31. We expect councils to follow statutory timescales set out in the law and the Code. As set out in paragraph 14, the final EHC plan should have been issued within 20 weeks of the request for an assessment, i.e. by 13 March 2024. It was not issued until 1 October 2024, which is a 29-week (6.5 months) delay. This is fault which caused a delay to Miss B’s appeal rights, though I note that Miss B did not appeal the EHC plan when it was issued, so reducing the injustice caused.
32. I have seen no evidence Miss B applied for a mainstream school in the normal admissions round. It was therefore not fault for the Council not to have allocated M a mainstream school place for September 2024. Nonetheless, the delay until October in issuing the final EHC plan caused Miss B distress and uncertainty about what SEN provision and education was to be made in September 2024. This is an injustice.
33. I am not making any recommendations around loss of SEN provision caused by the delay. To do so would stray into the Tribunal's remit to decide what the provision should be. We would expect the final EHC plan to reflect M’s needs at the point it is issued and to therefore take account of the impact on him of any delay in SEN provision. If it does not, then the Plan is appealable and Miss B can ask the Tribunal to consider whether M requires additional provision.
34. Miss B was unhappy that the final EHC plan did not name a school setting or a specialist provision. She had a right to appeal to Tribunal about this.
35. I have seen no evidence that the SEN provision set out in section F of the October 2024 EHC plan was not put into place by the nursery.
36. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress or uncertainty caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says a moderate, symbolic payment may be appropriate to remedy distress and uncertainty caused by fault.
37. The Council said the delay was caused by service pressures. In response to my enquiries the Council said it was working to improve its SEND service. It had increased the number of case officers in post by 300% and was delivering ongoing training to the SEND team. In addition, senior case officers within the SEND team were monitoring caseloads to ensure that front line staff were up to date with procedure in terms of meeting statutory deadlines and had received the necessary training. Case officers attend weekly drop-in sessions to discuss complex cases and receive senior leadership team direction and support. In addition, the Department of Education has issued an improvement notice to the Council to take steps to improve its special educational needs and disabilities services. So I make no further service improvement recommendations.

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Action

38. Within a month of my final decision, the Council has agreed to pay Miss B £500 to remedy the distress, uncertainty and delay to appeal rights caused by fault.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman