Summary: Miss D complained the Council delayed issuing an education, health and care plan for her daughter and failed to provide a suitable education when she stopped attending school. The Council has accepted it did not meet the statutory deadline for the plan. I also found it failed to consider how to secure the provision after Miss D’s daughter stopped attending school. This fault caused uncertainty and for Miss D’s appeal rights to be delayed. The Council has agreed to apologise and pay Miss D symbolic payments to remedy this injustice.

The complaint

1. Miss D complained the Council:
1. Delayed issuing an education, health and care (EHC) plan for her daughter.
2. Refused to name a suitable school in the final EHC plan.
3. Failed to provide a suitable education when she stopped attending school.
4. Did not respond to her queries and failed to send a stage one complaint response.
2. Miss D says as a result her daughter lost a year of education, her condition worsened and her mental wellbeing was shattered. It also caused significant distress to all the family, affecting their mental health and Miss D has been unable to work.

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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 the 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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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.
8. 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)
9. 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)
10. 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

11. I have not investigated element (b) of the complaint. This is because Miss D had a right to appeal to the Tribunal about the school named in the plan. As set out in paragraphs 8 and 9, the law says we cannot normally investigate a complaint when someone has or could appeal to a tribunal.
12. In February 2025, Miss D had a right of appeal against the naming of a mainstream school in the EHC plan. Normally, we would expect a parent to use this right. But my view is it was not reasonable for Miss D to appeal in February 2025. This is because she was satisfied with the special school named from September 2025, the disputed period was therefore brief and an appeal would not have been proportionate. As set out in paragraph 8, I am therefore exercising my discretion to investigate the special educational needs provision from February to July 2025.

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How I considered this complaint

13. I spoke to Miss D about her complaint and considered the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
14. Miss D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Compulsory school age

15. The Education Act 1996 states a child reaches compulsory school age on the prescribed day following his or her fifth birthday. The prescribed days are 31 December, 31 March and 31 August.
16. Prior to compulsory school age, councils must secure universal childcare free of charge for parents of 3- and 4-year-olds but they are not required to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons.

Special educational needs

17. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. Section 42 of the Children and Families Act 2014 creates an "absolute duty" on local authorities to ensure that the SEN provision specified in an EHC plan is delivered.
18. Parents have a right of appeal to the Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named. 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. 
19. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the Tribunal or by going to mediation. If the council concedes to the appeal, the Tribunal will issue a consent order. The Regulations say the council must issue the final EHC plan “as soon as practicable” and in any event within 14 weeks of the consent order. (SEND Regulations 2014, Regulation 44(2)(b)(ii))
20. As part of the needs assessment, councils must gather advice from relevant professionals. Those consulted have a maximum of six weeks to provide the advice.
21. Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan and express a preference for an educational placement. The council must then consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.

The Council’s complaints procedure

22. The Council has a two stage complaints procedure. At both stages it aims to respond within fifteen working days.

What happened

23. I have set out the key events. This is not meant to detail everything that happened.
24. Miss D’s daughter, J, has autism. She was attending a nursery in a mainstream primary school (School X). Miss D requested an EHC needs assessment in January 2024. The Council initially refused the request but following mediation it agreed to assess on 28 May 2024.
25. The Council sought professional information and advice, including from an educational psychologist (EP), which it should have received by 9 July. The final EHC plan should have been issued by 3 September, 14 weeks since the agreement to assess after mediation. The advice from the EP was delayed.
26. In September, J moved into the early years provision at School X. The Council had received all the professional advice for the needs assessment by 18 September. On 29 October, the Council’s panel considered the information and agreed to issue an EHC plan.
27. The draft EHC plan was issued on 25 November. Miss D’s preference was for J to attend a special provision based in a different school (School Y). She said School X could not meet J’s needs. The Council consulted School Y but it said it was full and that any additional placements would be incompatible with the efficient education of others and effective use of resources.
28. In December, Miss D told the Council that School X was not making interventions to support J and was not following recommendations from the EP and speech therapist. She said it was not safe for J to remain in School X and that J was refusing to attend as she was dysregulated. Miss D said she was aware School Y had capacity. Miss D asked the Council to issue the final EHC plan to enable her to appeal to Tribunal for a placement at School Y.
29. Miss D made a formal complaint on 24 January 2025 that there had been a delay issuing the EHC plan and poor communication. Miss D said the Council ignored emails and phone calls and case workers changed frequently. She also complained about School X. She said it was not meeting J’s needs and was refusing to provide sensory toys and breaks. As a result J was leaving school dysregulated and distressed and was refusing to attend. Miss D said this was discrimination against J’s disability and a safeguarding issue as J was a risk to herself and others after school.
30. The Council asked School Y to reconsider its response to the consultation but it again said it was full. It said it could not allocate places for September 2025 until the Council confirmed the phase transfer placements in February.
31. Miss D told the Council on 13 February that J was no longer attending School X. She said J would remain at home until a safe plan was implemented for a phased return.
32. The Council issued the final EHC plan on 20 February; this was 24 weeks (six months) after the deadline. The plan named School X until July 2025 and then School Y from September 2025. At this point, Miss D had a right to appeal about School X being named in the plan.
33. On 26 March, School X met with a specialist autism service and Miss D to discuss a plan to help J attend school. School X said it had already made some adjustments to encourage attendance; these would continue. J returned to school for two sessions that week and the plan was for her attendance to gradually increase. Miss D says J was only attending for a few hours, three days a week.
34. As the Council had not issued a stage one response to Miss D’s complaint, it investigated her complaint at stage two and issued a response on 29 April. The Council apologised for the delay in responding to Miss D’s complaint. This had been caused by unforeseen capacity issues. It also apologised for poor communications and for the delay in issuing the EHC plan. It said it could not investigate School X’s actions. Miss D could appeal to Tribunal if she was unhappy with the EHC plan.
35. Miss D told the Council and School X that J would not be returning. She said J was unable to attend because inconsistent routines, unmet sensory needs, and changes to agreed arrangements had caused her to lose trust in School X and become highly dysregulated and anxious. This led to significant distress at home and made mornings unmanageable. J was therefore out of school from 29 April until the end of the school year. She reached compulsory school age in September 2025 and started at School Y.

My findings

36. The Council has accepted that it delayed issuing the EHC plan. It should have been issued by 3 September 2024 but was not issued until 20 February 2025. This is fault and caused a six-month delay to Miss D’s appeal rights.
37. To assess the impact on J and her family I have carefully considered what would have happened if there had been no delay. I appreciate that Miss D says School Y had capacity and could have been named in an earlier EHC plan, but my view is that it is too uncertain to find this. If the Council had received all the professional advice on time by 9 July, it would have had to determine whether to issue a plan, then draft the plan and give Miss D 15 days to comment on it before it was able to send it to a school to consider. Therefore, my view is that even if there had been no delay in the assessment, it is unlikely the Council would have been able to consult with School Y before the end of July. In response to my enquiries, the Council said specialist school places have historically been fully allocated prior to September. I therefore find that there is uncertainty about whether School Y would have been able to offer J a place and been named in the plan if there had been no delay. This uncertainty is an injustice as Miss D will never know whether J could have started at School Y in September 2024.
38. If the plan had been issued on time, J would have received SEN provision from September 2024. I cannot say this provision would have been exactly the same as the provision set out in the February 2025 plan, as J’s needs may have changed over that time. So there is some uncertainty about what SEN support J would have had from September 2024 to February 2025. Nonetheless, she missed out on some SEN support for six months and this is an injustice.
39. In response to my enquiries, the Council has offered a payment of £100 for each month of the delay. This is in line with our guidance on symbolic payments to remedy injustice caused by delays in issuing final EHC plans.
40. Miss D had a right of appeal against the naming of School X in the EHC plan but I consider it was not reasonable for her to appeal, so I have investigated the SEND provision from February to July 2025.
41. After J stopped attending School X in February 2025, the Council did not have any duty to provide alternative education as J was not at compulsory school age. I note that there was an attempt to develop a reintegration plan and J returned to school with a reduced timetable in late March. It was not fault for the Council to allow School X to try to reintegrate J. So although J was not at school from mid-February to late March, this was not caused by fault by the Council.
42. But once the final EHC plan was issued, the Council had a duty to secure the SEN provision. This means that after J stopped attending completely on 29 April, the Council should have ensured that the SEN provision continued to be delivered, outside a school setting if necessary. The Council should therefore have considered whether an early review of the EHC plan was required to determine how the provision would be secured. I have seen no evidence it considered these matters, which is fault.
43. If the Council had held an emergency review, it may have decided that School X remained suitable in terms of being able to deliver the SEN provision. If Miss D had disagreed with this, J’s lack of SEN provision in the summer term would not have been caused by fault. But as the Council did not consider the matter in May 2025, there is further uncertainty. Miss D will not know whether the SEN provision could have been made differently after May 2025. This is an injustice.
44. The Council has accepted there were poor communications and that it failed to respond to Miss D’s complaint. This fault caused her frustration and time and trouble as she had to chase and escalate her complaint to stage two. In response to my enquiries, the Council has offered a payment of £250 to remedy the time and trouble. This is in line with our guidance on remedies.
45. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally ask for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Our guidance on remedies says that to remedy uncertainty and time and trouble caused by fault, a symbolic payment up to £500 may be appropriate.
46. Miss D says she was unable to work due to the problems with J’s education and has suffered loss of earnings. We do not normally recommend remedies that reimburse loss of earnings. This is because we cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. There are frequently other factors, personal circumstances and choices involved. Such payments are therefore best resolved by the courts.
47. Miss D paid privately for therapy and play therapy but as this is not SEN provision in the final EHC plan, my view is that the Council would not have funded this but for the delay in issuing the EHC plan. I therefore do not recommend the Council reimburse this.

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Action

48. Within a month of my final decision, the Council has agreed to apologise and pay Miss D a total of £1,450, broken down as:
• £200 to remedy the delay to her appeal rights (paragraph 36).
• £200 to remedy the uncertainty caused by the delay issuing the EHC plan (paragraph 37).
• £600 to remedy the loss of some SEN support for six months from September 2024 to February 2025 (paragraph 38).
• £200 to remedy the uncertainty caused by the failure to consider whether the SEN provision needed to be made in a different way (paragraph 43).
• £250 to remedy the frustration, time and trouble caused by fault in complaint handling (paragraph 44).
49. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman