Summary: The Council was at fault for delays issuing Mrs X’s child’s Education, Health and Care plan, failing to provide all of her child’s provision, and poor communication. We are satisfied the Council has already apologised and offered a payment to reflect the distress, delayed appeal rights, and impact of lost provision.

The complaint

1. Mrs X complained on behalf of her now-adult child, O, about delays in the Education, Health and Care (EHC) plan process and failures with educational provision. Specifically, Mrs X complained the Council:
1. failed to adhere to EHC needs assessment and plan statutory timeframes;
2. delayed finding O a suitable placement;
3. delayed providing the provision;
4. provided inadequate provision; and,
5. communicated poorly with them.
2. Mrs X said this impacted O’s and the family’s wellbeing and finances. Mrs X said it meant she had to leave work, and O was isolated.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
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. 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.
10. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
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 have and have not investigated

12. As I have said above, we cannot investigate late complaints unless we decide there are good reasons. In this case, Mrs X complained to us in July 2025 about years of failures.
13. I have considered Mrs X’s reasons for not complaining to us before July 2025. I find reasonable opportunities existed for Mrs X to bring her complaint to us earlier. For this reason, I am not persuaded there are good reasons to exercise our direction and look back more than 12 months before Mrs X complained to us.
14. Therefore, I started my investigation by looking at issues from July 2024 onwards.
15. In part a of the complaint, Mrs X complained the Council failed to adhere to statutory timeframes around O’s Education, Health and Care (EHC) needs assessment. As this occurred before July 2024, I have not considered this aspect of Mrs X’s complaint. However, I have considered whether the Council adhered to the timeframes for issuing the EHC plan after the Tribunal.
16. After considering time limits, I considered Mrs X’s appeal to the Tribunal.
17. There is a right of appeal to the Tribunal against, amongst other things, a council’s:

• description of a child or young person’s special educational needs, the special educational provision specified, the school or placement, or that no school or other placement is specified in their EHC plan; and,
• amendment to these elements of an EHC plan.

18. 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)
19. 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.
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. The Council issued O’s EHC plan in August 2023. Mrs X appealed. The Tribunal issued a consent order in November 2024 where the Council agreed to add a personal tutor to O’s EHC plan provision.
22. Mrs X complained the Council delayed finding O a suitable placement (part b of the complaint). This delay happened while the Tribunal was ongoing. As this was part of the provision Mrs X appealed at Tribunal, and was during the appeal, we cannot investigate it.
23. For this reason, I cannot investigate part b of the complaint.
24. I have investigated the relevant aspects of parts a, c, d, and e from November 2024 (the end of the appeal) to July 2025 (when Mrs X complained to us).

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How I considered this complaint

25. O was a child at the time of the events complained of. O is now an adult. O has given written consent for their mother, Mrs X, to represent this complaint on their behalf. I therefore consider Mrs X is a suitable person to represent this complaint on O’s behalf.
26. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
27. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

28. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This plan sets out the child’s needs and what arrangements should be made to meet them.
29. 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).
30. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and, 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

31. The Special Educational Needs and Disability (SEND) Regulations (2014) say that when a tribunal has ordered a local authority to amend an EHC plan, the local authority should amend in the plan within five weeks of the order being made (section 44h).

What happened

32. Mrs X’s child, O, has an Education, Health and Care (EHC) plan. In November 2024, the Council agreed during Tribunal proceedings to add a personal tutor to O’s EHC plan.
33. The Council commissioned a provider to provide O with one-to-one tuition. This started in November and was face-to-face.
34. In January 2025, this provision changed to being online. Mrs X complained.
35. In February, the Council issued O’s amended EHC plan.
36. In March, the Council reviewed the plan. The review noted that O’s provision was online which O found difficult. Mrs X said she paid for a private tutor to support O separately. The Council said its tutoring provider was not able to provide face-to-face provision at that time.
37. In April, the Council responded to Mrs X’s complaint. It accepted there had been longstanding failures in how it handed O’s case. It apologised. It said Mrs X should not have needed to pay for a private tutor. It reimbursed Mrs X for the private tutor costs.
38. The Council said it had asked its provider to contact Mrs X to restart face-to-face tuition. The Council said it was aware it was not providing all the hours of provision the EHC plan set out.
39. The Council said its service had repeatedly fallen below expected standards. It apologised. It offered to make a payment to remedy a lack of educational provision, delays, distress, and poor communication.

Analysis

Statutory timeframes

40. Mrs X complained the Council failed to adhere to EHC needs assessment and plan statutory timeframes (part a of the complaint).
41. As I have said above, I have not investigated any delay to the EHC needs assessment process as it happened too long ago. However, I have investigated when the Council issued O’s EHC plan after the Tribunal.
42. The Tribunal concluded in November 2024. The Council had five weeks to issue the amended EHC plan. This would have been in December. The Council actually issued the plan in February, two months late. This is fault.
43. I consider this fault caused Mrs X injustice because it delayed her appeal rights.
44. In its complaint response, the Council accepted it had handled O’s case poorly and its service had fallen below expected standards. It apologised and offered to pay a financial remedy to Mrs X. I am satisfied the apology and payment amount were in line with our published guidance on remedies. I find they were appropriate and proportionate remedies for the level of injustice caused.
45. Mrs X said the Council has not yet made the payment. I cannot speak to the reasons for this. However, this is not a matter the Ombudsman will resolve. The Council and Mrs X should contact each other to resolve this.

Provision delay

46. Mrs X complained the Council delayed providing O’s provision (part c of the complaint). She said the Council’s tutor provided English but not maths. So, she paid for a maths tutor.
47. The Council put provision in place shortly after the Tribunal. So, I do not find delay here. However, the provision did not include maths, which it should have. Mrs X paid for private maths tuition which the Council later reimbursed. This meant O did not miss out on any provision. So, I do not find the delay putting this element in place caused O an injustice.

Inadequate provision

48. Mrs X complained the Council provided inadequate provision (part d of the complaint). Mrs X said the Council’s tutor went from being face-to-face to online. This was because the tutor had been providing tuition in a local library and this shut down for refurbishment. Mrs X said online tuition was inadequate and not appropriate for O.
49. In January, O’s provision changed to being online. It is not the Council’s fault the library closed, and the tutor was therefore not able to provide face-to-face tuition. Tuition continued online.
50. In March, the Council reviewed O’s EHC plan. The Council said it had already spoken to the provider and asked that they work with Mrs X to restart face-to-face tuition. This was appropriate. I find this shows the Council had appropriate oversight of its provision.
51. The Council said the provider was having staffing problems meaning they could not provide a face-to-face tutor at that time. As I have said above, service failure can happen when a council fails to provide a service as it should have done because of circumstances outside its control. In this case, O’s provision should have been face-to-face, but the provider could not provide this. Therefore I find service failure.
52. This caused O injustice because their provision was not provided face-to-face. This made it harder for O to access. However, there was provision.
53. In its complaint response, the Council accepted it had not provided the hours of provision set out in O’s EHC plan. It apologised for this. The Council offered a financial remedy to reflect O’s missed education. I have considered our guidance on remedies. I am satisfied the amount is in line with our guidance. I am satisfied the payment amount and the apology are appropriate and proportionate remedies for the level of injustice caused here.
54. Mrs X also complained the provision was inadequate because it did not include maths provision. I have addressed this above in part c.
55. Mrs X said she had to leave work for two years to care for her child. She wants the Council to reimburse her for loss of earnings. She said this is the reason she is not satisfied with the amount the Council paid her.
56. The Council did not agree to reimburse Mrs X for her loss of earnings because of our guidance. I agree. Our financial remedies are symbolic. Our financial remedies for lost education reflect the impact on the child and the impact on families: we would not recommend a separate payment for loss of earnings.

Communication

57. Mrs X complained the Council communicated poorly with her and O (part e of the complaint).
58. In its complaint response, the Council accepted there had been longstanding failures in how it handled O’s case. It recognised its service had repeatedly fallen below expected standards. The Council apologised and offered to make a payment to reflect its poor communication.
59. I find the Council at fault for its poor communication. I find this fault caused Mrs X and O unnecessary and avoidable distress, which is injustice.
60. I am satisfied the apology and payment amount were in line with our guidance on remedies. I find they were appropriate and proportionate to the level of injustice caused.

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Decision

61. I find fault causing injustice. I am satisfied the Council has taken actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman