Summary: The Council was at fault for causing a delay when deciding the support Miss X should receive for her special educational needs. It has already offered suitable remedies for the injustice caused, so we have made no further recommendations.

The complaint

1. Miss Y complains on behalf of her daughter, Miss X, who has special educational needs.
2. Miss Y complains that the Council took too long to decide the educational support Miss X should receive. She also complains that the Council failed to assess
   Miss X’s needs properly, and she says the support it proposed was inadequate.
3. Miss Y says she has suffered distress and a loss of earnings, and Miss X has suffered a loss of education.

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The Ombudsman’s role and powers

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. 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. If we are satisfied with a council’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)
8. 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

9. I have not investigated Miss Y’s complaints about the way the Council decided Miss X’s needs – including the professional reports it did or did not consider – or about the adequacy of the support it decided on. Miss Y has appealed these matters to the Tribunal and, as our role cannot overlap that of the Tribunal, they are outside our jurisdiction.
10. The only part of Miss Y’s complaint I can consider (and have considered) is about the delay in the Council’s decision-making.

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How I considered this complaint

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

Law and guidance

13. A child with special educational needs may have an education, health and care (EHC) plan. This document describes the arrangements which should be made to meet the child’s needs.
14. The process of deciding whether a child needs an EHC plan is routinely referred to as an EHC needs assessment.
15. If, following an EHC needs assessment, a council decides not to issue an EHC plan for a child, their parent may appeal that decision to the First-Tier Tribunal (Children and Families Act 2014, Section 51(2)(b)).
16. If the council decides not to oppose the appeal, it will notify the Tribunal and must then issue the final EHC plan within 11 weeks. (The Special Educational Needs and Disability Regulations 2014, Regulation 45(6)(b))

What happened

17. In February 2024, after carrying out an EHC needs assessment, the Council decided Miss X did not need an EHC plan. The letter which it sent to Miss Y about this indicated that Miss X was home-educated.
18. Miss Y appealed this decision to the Tribunal. And, in late May, the Council notified the Tribunal that it would not oppose the appeal. It agreed to issue an EHC plan for Miss X.
19. The Council issued a draft EHC plan in June, and sent consultations to potential schools.
20. In late August, the Council had not issued the final EHC plan. Miss Y complained about this.
21. In October, the Council apologised for the delay. It said this had been caused by the school summer holidays, during which schools and colleges were closed. Nonetheless, it acknowledged the delay and apologised.
22. In early January, Miss Y complained again. She said Miss X was still without an EHC plan.
23. In late January, the Council issued Miss X’s plan. And, in February, it responded to Miss Y’s complaint. It said the delay had been caused by ‘many’ colleges and schools saying they could not meet Miss X’s needs. It apologised again and offered Miss Y a remedy of £500 to recognise the injustice caused by the delay.
24. In late March, Miss Y appealed to the Tribunal about the provision in Miss X’s EHC plan.

My findings

25. After conceding Miss Y’s appeal in May 2024, the Council should have issued Miss X’s EHC plan by mid-August. It did not do so until January 2025, for which it was at fault.
26. This likely caused some distress, particularly to Miss Y, and delayed her right to appeal. And, although Miss X was receiving some education because Miss Y was delivering this at home, it is also likely that she missed out on some extra educational support, as specified by the eventual EHC plan.
27. The Council has already issued the delayed plan, apologised to Miss Y and offered her a financial remedy which is broadly in line with other remedies we have recommended in similar cases.
28. Such remedies do not provide ‘compensation’ in the way a court might; instead, they are symbolic and seek to recognise that something has gone wrong, and someone has suffered an injustice.
29. As the Council has already offered suitable remedies, neither Miss X nor Miss Y have any remaining unaddressed injustice.
30. With this in mind, it would not be proportionate to make further findings or recommendations.
31. Any concerns Miss Y continues to have with Miss X’s EHC plan can now be dealt with by the Tribunal. Any compensation claim – including for lost earnings – are a matter for the courts.

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Decision

32. The Council was at fault, and this caused injustice to Miss X and Miss Y, which it has already taken action to address.

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Investigator's decision on behalf of the Ombudsman