Summary: The Council failed to arrange the provision in Mr X’s son, Z’s, Education Health and Care Plan for a period of just under six weeks. To recognise the injustice caused, the Council has agreed to apologise to Z, pay Z £200 and outline to Mr X what the Council’s current plan is to find post-16 education for Z that is in line with the requirements of his Plan.

The complaint

1. Mr X complained his son, Z, has been out of education since September 2024 and the Council has only put in place part-time tuition, which is unsuitable. Mr X also complained the Council failed to carry out a new educational psychology assessment for Z when it should have.
2. Mr X said due to the Council’s faults, his son has missed out on the education and support in his Plan which caused him frustration and distress.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 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

8. We investigated a previous case involving Mr X and his son. As part of that, we found due to the Council’s faults, Z was out of education from September 2024 to February 2025. To recognise the injustice caused, the Council apologised, carried out service improvements and paid Z and Mr X a financial remedy in relation to this period.
9. Mr X made a further complaint about his son’s lack of education and received the Council’s final complaint response on 13 March 2025. I have considered that complaint here. As my previous investigation already remedied up to the end of January 2025, this investigation begins from 1 February 2025.
10. As the Council issued its final complaint response on these matters on 13 March 2025, for the reasons set out under the role and powers section of this document, this is when I have ended my investigation. Any complaints about events after 13 March 2025 need to complete the Council’s complaints process before the Ombudsman can consider them.

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How I considered this complaint

11. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
12. I considered comments made by Mr X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans

13. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them. Young people may have an EHC Plan up until the age of 25.
14. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

Reassessments of EHC Plans

15. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
16. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly. If the Council declines to carry out a reassessment, the person who applied can appeal this decision to the SEND Tribunal.

Arranging provision

17. Councils are responsible for making sure that arrangements specified in the EHC Plan are put in place. 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)  
18. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

What happened

19. Z’s last in force EHC Plan said he should be attending a post-16 college full time from September 2024. However due to faults by the Council that we identified in an earlier case, Z could not start at the college named in his Plan.
20. From February 2025, when this investigation begins, Z was receiving part-time tuition at home as there was still no college place available. Z did not receive all the section F provision in his Plan during this time and Mr X was providing more care and support to Z at home, to replace what Z would have received at college.
21. Mr X said Z became isolated during this time as he had very little social interaction while studying at home and his educational needs were changing as a result. Mr X asked the Council to arrange for an educational psychology assessment for Z. The Council did not agree this was needed.
22. Mr X complained to the Council about the lack of education in place and the lack of an educational psychology assessment. The Council responded to say it did not feel Z needed an educational psychology assessment, as it said his EHC Plan was primarily in place due to his medical and physical needs.
23. Regarding the length of time it was taking the Council to find a college placement for Z, the Council said it was consulting other colleges and would update Mr X as it received responses. The Council said regarding Z’s isolation at home, it could change the type of alternative education on offer while Z was awaiting a college place. It said it had offered Z a place at another part-time education placement which was group and community based but Mr X declined this.
24. Mr X was unhappy with the response and complained to the Ombudsman. He said Z was still without a post-16 college placement.

My findings

25. Due to the Council’s faults as identified in the previous case, Z continued to be without a college placement between 1 February and 13 March 2025. During this time Z also did not have access to all the support in Section F of his EHC Plan.
26. The Council is responsible for ensuring the arrangements in an EHC Plan are in place and this did not happen. The Council was at fault. Because of this fault, Z did not receive all the education and provision he was entitled to for just under six weeks, which is an injustice to him.
27. Mr X also complained the Council failed to carry out an educational psychology assessment for Z. The Council explained why it did not consider it was necessary for Z to have an educational psychology assessment. The Council was entitled to make this decision and it is not the Ombudsman’s role to make findings on the merits of decisions such as this. The Council was not at fault.
28. However it is open to Mr X to ask the Council to carry out a reassessment of Z’s EHC Plan if he is concerned Z’s Plan no longer reflects his needs. More information about this is set out in paragraphs 15-16 of this decision.

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Action

29. Within one month of the date of the final decision, the Council has agreed to:
1. apologise to Z for this almost six-week period where he has been without full-time education and all the additional support in his EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings;
2. pay Z £200 to recognise the impact of the missed provision during this period; and
3. provide Mr X with details of the steps it is currently taking to find post-16 education for Z that is in line with the requirements of his Plan.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. 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