Summary: Mrs X complained the Council failed to complete her son’s Education, Health and Care Needs Assessment and comply with the Tribunal’s order within the statutory timeframe. She also complained the Council communicated poorly with her. We found fault by the Council on all the matters we investigated. The Council agreed to apologise and make a payment to Mrs X and Y to remedy the injustice caused to them.

The complaint

1. Mrs X complained the Council:

1. took too long to decide her request for an Education, Health and Care Needs Assessment (EHCNA) for her son, Y;
2. was barred from participation in the Tribunal process;
3. delayed carrying out the Tribunal’s order;
4. refused to reimburse her for the cost of private provision: and
5. communicated poorly with her.

2. Mrs X stated this negatively impacted Y’s education and his emotional wellbeing.It has also caused her frustration and put her to avoidable time and trouble.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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.
6. 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)
7. 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to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
8. 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). 
9. 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)
10. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
11. 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)
12. 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

13. I have investigated parts C, D and E of Mrs X’s complaint.
14. I have not investigated part A of the complaint because these events occurred longer than 12 months ago and so the restriction in paragraph 3 applies.
15. I have not investigated part B of the complaint because the restriction in paragraph 6 applies.

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How I considered this complaint

16. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
17. Mrs X 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

18. 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 the council can do this. 

EHC assessment

19. 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.

SEND Tribunal order

20. Once the Tribunal issues a decision, the Council must carry out the order within a fixed period. When the Tribunal requires the Council to make and maintain an EHC Plan the council should:
• issue a draft EHC Plan within five weeks of the order being made; and
• send a copy of the finalised EHC Plan to the child’s parent or young person within 11 weeks of the order being made.

What happened

21. On 31 January 2023 Mrs X asked the Council to complete an Education, Health and Care Needs Assessment for her son, Y.
22. On 2 March the Council said it would continue with an assessment. It should have completed the assessment by 13 April 2023.
23. On 27 September 2023 the Council decided it would not issue Y with an EHC Plan.
24. In January 2024 Mrs X appealed the Council’s decision to the SEND Tribunal.
25. In March a barring order was issued to the Council because it did not respond to the Tribunal’s requests for a response to Mrs X’s appeal.
26. The Tribunal heard Mrs X’s appeal in November.
27. On 28 November the Tribunal issued its decision. It ordered the Council to issue Y with an EHC Plan.
28. The Tribunal decision noted:
• there was little evidence Y’s special educational needs were being met by his school; and
• Y is not making progress at school with his current provision.
29. In January 2025 Mrs X complained to the Council. She complained about the matters set out in paragraph 1.
30. The Council replied later that month. It said it:
• accepted it took too long to complete the Education, Health and Care Needs Assessment for Y.
• recognised it was yet to issue a draft EHC Plan for Y. It said it would issue a draft plan by the end of the month.
• apologised for the delay however it refused to make Mrs X a financial payment in recognition of this.
31. Mrs X escalated her complaint to the second stage of the Council’s complaints process.
32. The Council replied in March it said:
• Y had an educational placement throughout the EHC Plan assessment process, and he received alternative provision including flexi schooling when he could not attend school for medical reasons.
• it will issue a final EHC Plan for Y once it has received Mrs X’s comments on the draft and had enough time to consider them.
• it apologised for the delays and the distress caused to Y and Mrs X.
• it would not offer Mrs X a financial payment in recognition of the delays.
33. On 5 April the Council issued Y’s final EHC Plan.
34. Section F Y’s EHC Plan explains what specialist provision he needs. The Plan says he needs the following provision:
• strength and stability exercises to help him with his handwriting and using tools needed to complete learning tasks.
• interventions to help him prioritise, monitor and sequence tasks.
• a programme of support to promote emotional recognition and regulation including weekly individual sessions lasting 10-20 minutes as wells as regular check-ins from his teachers during lessons.
35. Mrs X is unhappy with contents of Y’s EHC Plan and lodged an appeal with the SEND Tribunal.

Finding

Delay implementing the Tribunal’s order

36. The Tribunal issued its decision ordering the Council to issue Y with an EHC Plan on 28 November 2024. This means it should have issued a final EHC Plan by 13 February 2025. However it did not issue Y’s final Plan until 5 April. This is fault. Because of the fault Mrs X and Y were caused uncertainty about what the final Plan would contain and their appeal rights to the SEND Tribunal were delayed. This is injustice.

Lost provision

37. The Council should have issued a decision on Y’s EHCNA by 13 April 2023. It did not do so until 27 September 2023. This is a delay of five and a half months.
38. The Ombudsman can consider if, on the balance of probabilities, this delay led to Y missing provision. The Tribunal order explained that Y’s special educational needs were not being met by his school; and he was not making progress at school.
39. The final EHC Plan issued for Y in April set out the educational provision he needed.
40. I consider Y would, on the balance of probabilities, have received the provision included in the final EHC Plan between 13 April 2023 and 27 September 2023, save for the delay by the Council. Therefore Y has missed education. This is injustice.
41. I cannot consider any loss of provision for Y from the period appeal rights became available until the Tribunal issued its order. This covers the period from 27 September 2023 to 28 November 2024.
42. The Council took six weeks longer to issue Y with a final EHC Plan following Tribunal’s decision of November 2024. The delay means Y missed the provision in his final EHC Plan between 13 February 2025 and 5 April 2025. This is injustice.

Communication

43. Mrs X has provided copies of emails showing the Council did not reply to emails she sent. This is fault by the Council which has caused Mrs X frustration and put her to avoidable time and trouble. This is injustice.

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Agreed Action

44. Within one month of my final decision the Council will:
• Apologise to Y and Mrs X for the fault I have identified, and the injustice caused to them. The apology should be made in line with our published guidance on making an effective apology.
• Pay Mrs X £150 in recognition of the uncertainty caused by the delay in fulfilling the Tribunal’s decision and its poor communication. In arriving at this figure, I considered our published guidance on remedies. I consider this amount is appropriate and proportionate to the level of injustice caused.
• Pay Y £1500 in recognition of the education he missed between 13 April 2023 and 27 September 2023 and 13 February 2025 and 5 April 2025. In arriving at this figure, I considered our published guidance on remedies. I consider this amount is appropriate and proportionate to the level of injustice caused.
45. These payments are symbolic amounts in line with our published guidance on remedies.
46. I note we have made service improvement recommendations on previous complaints of a similar nature and so I do not consider it is necessary to make further recommendations currently.
47. The Council should 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 the injustice.

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Investigator's decision on behalf of the Ombudsman