Summary: Mr B complained that the Council delayed in completing an Education, Health and Care (EHC) needs assessment and issuing an EHC Plan for his son C. He also complained that the Council did not make any alternative educational provision for C during this period. We found fault causing injustice. The Council has agreed to apologise to Mr B and C and make a symbolic payment of £2250.

The complaint

1. Mr B complained that North Yorkshire Council (the Council) in respect of his son, C:
• delayed in completing an Education, Health and Care (EHC) needs assessment and issuing an EHC Plan; and
• failed to provide suitable and accessible alternative education, since C stopped attending school in July 2023.
2. Mr B says this has caused significant distress to the whole family and caused C to miss out on essential support.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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. 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)
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)

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What I have and have not investigated

7. I have investigated the period from November 2023 when Mr B requested an EHC needs assessment to 7 October 2024 when the Council issued a final EHC Plan. Mr B appealed against the content of, and named placement in, the plan and so I am unable to investigate beyond this date.

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How I considered this complaint

8. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
9. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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 found

Special educational needs assessment

11. 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. 
12. 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).

Alternative provision

13. 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). We refer to this as section 19 or alternative education provision.

Council complaints procedure

14. The Council has a two stage complaints procedure. At stage one it aims to provide a full response within15 working days extendable to 20 working days in complex cases. It says people should request a stage two investigation within 20 working days and the Council will aim to respond within 15 working days again extendable to 20 working days in complex cases.

What happened

15. Mr B says his son stopped attending school in July 2023. The school introduced a reduced timetable in September 2023 which was unsuccessful. Mr B requested an assessment of C’s special educational needs on 5 November 2023. The Council agreed to this and began the assessment.
16. The school sent a report to the Council for the purposes of the assessment in December 2023. This said that C was not attending school, and his attendance was 24%. A reduced timetable had been trialled but was unsuccessful and C stopped attending school.
17. On 24 April 2024 Mr B complained to the Council that it had exceeded the statutory time limits and requested the draft EHC Plan be issued within five days.
18. On 12 June the Council notified Mr B of its decision not to proceed with an EHC Plan. Mr B attended mediation and on 23 July the Council agreed to issue an EHC Plan. It issued a draft plan on 31 July. In September C’s school said it could not meet C’s needs. Another school with whom the Council consulted, also said it could not meet C’s needs.
19. On 10 October 2024 the Council issued a final EHC Plan naming C’s current school with extra support. This document said C stopped attending school in January 2024.
20. Mr B appealed to the Tribunal against sections B, F and I of the EHC Plan.
21. On 27 November the Council responded to Mr B’s complaint. It apologised for the delay in completing the assessment and issuing the EHC Plan, but it offered no remedy. It said the delay was due to a delay in receiving the education psychology advice and this was a national problem. It gave no details about when the report was requested or delivered. It outlined the steps it was taking to improve the supply of educational psychologists.
22. On 18 February 2025 Mr B complained to the Council about the lack of education for C. He said C only attended 15 minutes a week at school and requested suitable accessible provision until C could attend a new placement.
23. On 6 March the Council refused to consider the complaint as there was an ongoing tribunal appeal. It acknowledged that the annual review from January 2025 had not yet completed and said that the school was looking into alternative provision.
24. Mr B complained to us.
25. In response to my enquiries, the Council said it was not aware until October 2024 that C was not attending school and some alternative provision has since been put in place.

Analysis

Period of investigation

26. 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)
27. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
28. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

Delay

29. The Council has delayed in completing C’s EHC needs assessment. It should have decided on whether to issue an EHC Plan by 25 February 2024; it did not do so until 12 June 2024, over three months late. It has indicated some of this delay was due to a delay in receiving the educational psychology advice. But once it had received the advice the Council delayed another 1.5 months in issuing the final EHC Plan once it changed its mind following mediation in July 2024, making a total delay of approximately five months. This was fault which caused Mr B caused distress and uncertainty as to whether more prompt action could have produced a different outcome. It also delayed Mr B’s opportunity to appeal against the placement and the content of the EHC Plan. C missed out on essential support and education.

Alternative provision

30. The Council says it was only aware in October 2024 that C was not attending school. The only evidence I have seen of Mr B informing the Council of this fact is in his complaint letter of 14 February 2025. However, the school sent information to the Council for the purposes of the assessment in December 2023 which confirmed C was not attending school. I have concluded the Council were aware in December 2023 that C was not attending school. So, the Council was at fault for failing to consider whether any alternative provision should be put in place. This caused uncertainty for Mr B as to whether earlier intervention could have put more alternative education in place for C much sooner.

Complaint handling

31. The Council should have responded to Mr B’s stage one complaint within four weeks. It took seven months. It upheld the complaint but offered Mr B no remedy for either the delay in completing the EHC needs assessment or in responding to the complaint. This was fault which caused Mr B distress along with time and trouble in chasing up the Council.
32. The Council declined to consider Mr B’s complaint at stage two. I consider it could have revisited the elements of the complaint not related to the appeal: the delay in completing the assessment and issuing the EHC Plan and explore the lack of education for C. Again, it should have considered offering a remedy for the delays. The failure to do so meant Mr B had to complain to us which has caused further delay and time and trouble.

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Action

33. In recognition of the injustice caused to Mr B and C, I recommended the Council within one month of the date of my final decision:
• apologises to Mr B and C;
• makes a symbolic payment of £1950 to Mr B for the benefit of C (1.5 terms of missed provision once the EHC plan was finalised @£900 a term plus £600 for the uncertainty around alternative provision); and
• makes a symbolic payment of £300 to Mr B for his time and trouble in pursuing the complaint.
34. The Council has agreed to the recommendations and should provide us with evidence it has complied with the above actions.
35. We have upheld an increasing number of complaints in this area from the Council since April 2024 and have made a number of service improvement recommendations around the importance of keeping to the statutory timescales, improving the supply of educational psychology reports, considering alternative provision and complaint-handling delays. The Council has provided details of the steps it has taken to improve the educational psychology delays and I see no need to make further recommendations in these areas.

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Decision

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

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Investigator's decision on behalf of the Ombudsman