Summary: There was delay in issuing a final Education, Health and Care (EHC) Plan following a Tribunal decision. The Council has agreed to issue an apology and symbolic payment to acknowledge the impact of the delay. We cannot investigate matters which date back more than twelve months and / or where an alternative remedy of a Tribunal appeal has been issued.

The complaint

1. Ms X complains:
1. the Council failed to provide support or educational provision when her child was unable to attend a mainstream setting for 2.5 years;
2. the Council refused to issue an Education, Health and Care (EHC) Plan because it said her child’s school could access additional funding without a Plan, but the Council then refused the funding when the school applied;
3. about comments made by the Council’s legal adviser during Tribunal proceedings;
4. the Council did not provide an EHC or Tribunal caseworker after the EHC Plan was refused, with communication via the legal team instead;
5. the Council did not signpost to advice or alternative education when her child was out of school;
6. the Council failed to provide a fair and robust EHC needs assessment; full information from school and mental health services was not obtained and the Council wrote to the wrong area for mental health advice;
7. about the Council’s handling of the EHC Tribunal process, including missed timescales, and that the Council refused to concede when it had no evidence;
8. about delay in the issue of the final EHC Plan following the Tribunal decision.
2. Ms X says because of the fault her child has had 2.5 years of total isolation causing severe depression and left school with no qualifications. The events also impacted her own mental health.
3. Ms X says she paid for online schooling as well as a large sum on legal fees and a private assessment and had to change work to a lower paid role.

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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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. 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)
8. 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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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. 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

Relevant law and guidance

12. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have. We refer to this as s.19 education.
13. 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 tribunal or council can do this.

14. 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)  
15. 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 an EHC Plan following an assessment;
• the contents of an EHC Plan.

16. 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)
17. 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.
18. 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.
19. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• support in an EHC Plan that is not being delivered to the child or young person, and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

20. 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). 
21. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
22. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal extensive case management powers to regulate its own procedure. The Tribunal can: 

• Take ‘such action as it considers just’ if a party fails to comply with a requirement in the Tribunal Procedure Rules, a Practice Direction or a direction by the Tribunal. 
• Make an order for costs if it considers a party has acted unreasonably in bringing, defending or conducting proceedings. 
• Require the council’s response to the appeal to include the views of the child or the reasons why the council has not asked for those views. 

23. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
24. When a Tribunal orders a Council to make and maintain an EHC Plan, the Special Educational Needs and Disability Regulations 2014 say it must issue a draft plan within five weeks of the order being made, and send a copy of the finalised plan to the child’s parent or young person within eleven weeks of the final order.

What happened

25. The Council carried out an Education, Health and Care (EHC) needs assessment in 2023. At the end of the assessment, the Council decided Ms X’s child did not require an EHC Plan because their needs could be met by their mainstream school. The school did apply for extra funding, which was initially declined, but the Council reversed its decision when the school provided more evidence the funding criteria was met.
26. Ms X appealed the decision not to issue an EHC Plan, which was heard by the Tribunal in Autumn 2024. Ms X’s appeal was an extended appeal about education, health and social care.
27. Ms X’s child started to attend College X in September 2024, when they moved into post-16 education.
28. In November 2024, the Tribunal ordered the Council to issue an EHC Plan. The Tribunal did not make any findings about health or care because no evidence was provided. The Tribunal did recommend health and care assessments take place.
29. Ms X made a formal complaint in Autumn 2024 after the Tribunal process ended. Ms X complained:
• Her child had no s.19 alternative education for 2.5 years;
• The EHC Plan was refused on the basis the school could access high needs funding, but when the school applied this was declined;
• Inaccurate comments were made by the Council’s legal adviser during Tribunal proceedings;
• Ms X had not had an EHC Plan or tribunal caseworker but had to deal with the Council’s legal team;
• The Council had not responded to requests for advice, signposting or s.19 education;
• There were failures in the EHC needs assessment as it was not based on full information from school or Child and Adolescent Mental Health Services (CAMHS) and not a holistic assessment;
• The Council had not complied with the tribunal process or timescales and refused to concede the appeal even though it had no evidence;
• The Council had delayed in providing the final EHC Plan ordered by Tribunal.
30. The Council provided several complaint responses between January and July 2025:
• The Council said it was not usual practice to have an EHC caseworker when no EHC Plan was in place.
• The Council acknowledged it had not sought the right mental health advice until after the Tribunal decision in late 2024 but says it was then received.
• The Council acknowledged the school funding had not been agreed first time.
• The Council did acknowledge some communications had not been replied to. It said it had increased staffing and had a new communications policy to address this.
• The Council stated appropriate referrals had been made when Ms X’s child experienced attendance difficulties in 2023. It said the school was responsible for ongoing support and there was no basis to refund Ms X’s expenses.
31. The Council issue a draft Plan broadly on time in mid-December 2024. It consulted the relevant college with a copy of the draft Plan in February 2025.
32. Ms X complained to the Ombudsman in Spring 2025.
33. The Council issued a final EHC Plan in March 2025. Ms X told me that she and the college did not receive this until late 2025 and had she received it, she would have appealed it.
34. The Council has provided me with evidence a covering letter issuing the EHC Plan was sent in March 2025 and this letter referenced appeal rights. It has also provided evidence it sent the college the draft plan and consulted the college.
35. The Council provided a complaint response to Ms X in April 2025 which referenced the final Plan had been issued. Ms X told me she must have missed this reference in the letter.

What I have and have not investigated

36. I have investigated from Spring 2024, which is twelve months before Ms X brought her complaint to the Ombudsman. I have not investigated matters dating back more than twelve months. This is too late for us to investigate, and we are also prevented from investigating anything that has been considered as part of the appeal to the Tribunal. (Local Government Act 1974, section 26(6)(a), 26B and 34D, as amended) This includes the EHC needs assessment in 2023 and missed education.
37. The appeal was about whether Ms X’s child’s needs could be met in a mainstream school without an EHC Plan. The Council’s position was that Ms X’s child could attend school but did not engage / attend. Ms X’s position was that her child could not attend school due to difficulties relating to unmet special educational needs. The missed education and alleged lack of signposting to support by the Council, cannot be separated from the matters considered by the Tribunal and so, even if the complaint had been brought on time, it would have been outside the remit of the Ombudsman due to the overlapping appeal.
38. We cannot consider the Council’s conduct of the appeal or the actions of its legal advisers. The Tribunal has its own case management powers to regulate its procedure. We cannot trespass onto the role of the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
39. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) It is the Council’s decision how to utilise its staff. When it refused an EHC Plan, this meant there was no ongoing role for the Council’s special educational needs team. The Council decided that appeals are handled by its legal team. This is a decision the Council is entitled to make; the Ombudsman has no jurisdiction to question it.
40. The only matter for us to investigate is the delay in issuing a final EHC Plan after the Tribunal decision.

Analysis

41. The Council has provided me with a copy of its letter accompanying the final EHC Plan in Spring 2025. This was two months late, which was fault and delayed Ms X’s appeal rights by two months, however there is no basis to make a finding the Council failed to issue the Plan properly. While Ms X says she did not receive the letter until December, there is no evidence this was due to fault by the Council.
42. The Council did refer to the issue of the final Plan in communications with Ms X in April, and so Ms X was on notice from April 2025 a final Plan had been issued.
43. My understanding is an annual review is due, and Ms X will obtain a fresh right of appeal on completion of this review.
44. I have not found evidence the college was not properly consulted. It did have a copy of the draft plan and communicated with the Council between January and March 2025 about the provision.

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Action

45. Within four weeks of my final decision, the Council will apologise to Ms X for the two-month delay in issuing the EHC Plan that can be attributed to fault by the Council.
46. Within four weeks of my final decision, the Council will pay Ms X £200 to acknowledge the frustration and distress due to the delay in completing the Tribunal order to issue an EHC Plan.
47. The Council will provide us with evidence it has complied with the above actions.

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Decision

48. 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