Summary: Dr Y complained that the Council delayed completing an EHC Plan under a First-tier Tribunal Order. He said this caused his daughter, B, to miss out on education and support in her GSCE year. We found the Council at fault. The Council has apologised for the delay and agreed to pay £350 in recognition of the loss of provision and uncertainty caused.

The complaint

1. Dr Y complained that Somerset Council (the Council) delayed completing an EHC Plan under a First-tier Tribunal (the Tribunal) order. He said this caused his daughter, B, to miss out on education and support in her GSCE year. The delay also caused B and her family avoidable uncertainty.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I have investigated Dr Y’s concerns from August 2024, when the Tribunal order was made, until December 2024 when the Council issued a final EHC Plan.
6. I have not investigated events prior to August 2024 or after December 2024 because the law says we cannot normally investigate a complaint when someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

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

EHC Plan 

10. 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. 

Appeal rights

11. 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.
12. 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 a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

13. 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)
14. 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.
15. 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.

Compliance with the orders of the Tribunal

16. Where the order requires a local authority to make and maintain an EHC Plan, the local authority shall:
• issue a draft EHC Plan within 5 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. (The Special Educational Needs and Disability Regulations 2014)

What happened

17. Dr Y appealed to the Tribunal after the Council decided not to issue an EHC Plan for his daughter, B. The Tribunal upheld the appeal in early August 2024 and ordered the Council to issue a plan.
18. The Council issued a draft EHC Plan in late September 2024, nearly seven weeks after the Tribunal. Dr Y submitted comments about the draft plan to the Council within two weeks.
19. Dr Y complained to the Council in November 2024 about the delays and lack of communication from the Council. The Council contacted Dr Y in late November 2024 to say that a new worker had been allocated.
20. The Council responded to Dr Y’s stage one complaint in December 2024. It also issued B’s final EHC Plan in late December 2024, 19 weeks after the Tribunal decision.
21. Between September to December 2024 B was attending mainstream school. She was in year 11 and preparing for her GCSE examinations. Dr Y said the school provided some support and reasonable adjustments as part of B’s normal curriculum. However, B did not receive the additional educational provision later set out in her EHC Plan during this period. Dr Y privately funded some tuition sessions as well as physiotherapy for B between September and December 2024.
22. Dr Y raised an appeal about the contents of the final EHC Plan in late December 2024. The Council responded to a stage two complaint from Dr Y in January 2025. It apologised for the delays and said it was carrying out service improvements.

Analysis

Delays issuing the EHC Plan

23. To meet statutory timescales, the final EHC Plan should have been issued in late October 2024. The Council issued the final EHC Plan in late December 2024, which was a delay of around eight weeks. This was fault which caused uncertainty for Dr Y and loss of provision for B during an important exam year.

Communication with Dr Y

24. Dr Y contacted the Council in November 2024 because he had received no updates following the Tribunal’s decision and the issue of the draft Plan. The Council did not make contact until late November when it advised a new caseworker was allocated.
25. The Council did not contact Dr Y between September and November 2024, when the Council should have been progressing the EHC Plan. This is fault that caused avoidable uncertainty and frustration.

Loss of provision

26. Because the Council did not issue the EHC Plan on time, it did not arrange the provision set out in section F between late October and late December 2024. During the delay period, B was still able to attend education and the school put some support in place before the EHC Plan was issued. However, Dr Y reported the school was unable to provide all the specialist or enhanced one‑to‑one support specified in the EHC Plan before January 2025. Dr Y also privately funded some tuition and physiotherapy during this period.
27. The Council said the school had a copy of the draft EHC Plan and would have been able to put the section F provision in place during the delay period. However, the Council has not provided any evidence to show that it took steps to ensure the school was delivering provision set out in section F before it issued the final Plan.

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Action

28. In recognition of the injustice caused to Dr Y and B, I recommend, within one month of the final decision, the Council should:
• Apologise to Dr Y and B in accordance with our guidance on making an effective apology.
• Pay Dr Y £350 (based on seven weeks at £750 a term) in recognition of the loss of provision to B and the avoidable uncertainty caused by the delay and poor communication.
29. The Council should provide us with evidence it has complied with the above actions.
30. The Council has told us, in response to previous complaints, that it has a Special Educational Needs and Disabilities (SEND) Action Plan in place. This plan aims to improve timeliness, quality assurance and communication regarding SEND services, including the EHC Plan process. I therefore will not recommend further service improvements at this time.

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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