Summary: Mr X complained about the Council’s failure to provide his son, Y, with a suitable education and support for his special educational needs when Y wanted to return to school for further education. He also complained about delay in the Education, Health and Care Plan process, failure to reimburse examination fees and poor communication. We found the Council to be at fault because it took too long to issue a final Education, Health and Care Plan and did not carry out an agreed action. This caused distress, uncertainty and frustration. To remedy this injustice, we recommend the Council should apologise and make a symbolic payment to Mr X. Parts of Mr X’s complaint were not investigated because they related to an appeal made to the SEND Tribunal.

The complaint

1. Mr X complains about the Council’s failure to provide his son, Y, with support for his special education needs. He also complains about:
1. delay in the Education, Health and Care (EHC) Plan process; and
2. failure to reimburse examination fees.
2. Mr X says Y’s lack of support and education has had a devastating impact on his well-being and future prospects.

Back to top

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. 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)
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 SEND Tribunal in this decision statement.
6. 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.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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)

Back to top

What I have and have not investigated

10. I have investigated Mr X’s complaint about lack of education and special educational needs provision between September 2024 and March 2025.
11. I have not investigated his complaints about missed provision from March 2025 because the Council issued a final Education, Health and Care Plan which carried a right of appeal. Mr X exercised this right of appeal about the failure to name School P, or a suitable alternative, in Section I of the EHC Plan.
12. 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). I consider Mr X’s complaints about lack of provision, examination fee reimbursement and poor communication to be too closely connected to the appealable matter. This means they fall outside the scope of this investigation. I have expanded on the reasons, where necessary, in the “Analysis” section of this decision statement.
13. Mr X also raised concerns about the marking of mock exam papers. This was arranged by School P. Although the Council was aware of this, it had no control over the making scheme used by School P. This makes this matter outside of the Ombudsman’s jurisdiction.

Back to top

How I considered this complaint

14. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant law and guidance

Education, Health and Care Plans

16. A child or young person with special educational needs (SEN) 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 SEND Tribunal or the council can do this.
17. 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.

18. If the Council agrees to carry out the assessment following a mediation meeting then the Council must decide whether to issue the EHC Plan within 10 weeks and finalise the EHC Plan within 14 weeks of the mediation agreement.
19. 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). 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)

SEND Tribunal and appeal rights

20. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.
21. 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 SEND 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)
22. 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.

Alternative provision

23. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
24. This duty end at the end of the compulsory age, which is the last Friday in June of the academic year a young person turns 16.

What happened

25. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
26. Y, who is of secondary school age, had been electively home educated (EHE) since Year 5. He has SEN, including a diagnosis of autism. In 2024, Y was keen to return to a school environment to study A-Levels or equivalent qualification. He specifically wanted to attend a local high school (School P). School P had specific academic entrance requirements. This meant Y required several GCSEs at certain grades. To achieve this, Mr X felt Y needed extra support that could only be obtained if Y had an EHC Plan.
27. In July 2024, Mr X requested an EHC needs assessment. The Council initially refused to carry out an assessment. Mr X was advised that he could apply for a school place via the In-year admissions process.
28. After mediation, the Council agreed to issue an EHC Plan on 13 January 2025. This decision was made six weeks late. Mr X told the Council that Y was only interested in attending School P. The Council consulted with School P. School P advised the Council it was unable to offer Y a place on 14 February 2025. The Council suggested alternatives that Mr X considered to be unsuitable.
29. Y’s final EHC Plan was issued in March 2025, three months later that it should have been. “A mainstream provision” was named in Section I because a suitable placement had not yet been identified. Mr X lodged an appeal with the SEND Tribunal the following month. His appeal was specifically about the Council’s failure to name School, or suitable alternative, in Section I. Mr X says the Council had the power to name School P but failed to do so. He said School P had provided frivolous reasons for its refusal.
30. During this time, Mr X was in contact with School P directly. School P agreed to facilitate mock GCSE exams to help Y make more informed decision about potential courses. Mr X says he was led to believe this would assist Y to secure a place at School P. The Council disputes it made such a commitment. I have seen no evidence to definitively support either assertion, so I am unable to take this area of dispute further.
31. The mock exams were taken at home under exam conditions and returned to School P to be marked. School P awarded grades that were lower than its admissions criteria. Mr X disagreed with this outcome and arranged for the papers to be independently assessed. This determined Y had achieved better grades than those marked by School P.
32. In July 2025, Mr X paid £1120 to enable Y to take two GCSEs in November 2025. He achieved Grade 7 and Grade 6. He says he only had to incur this expense because the Council failed to make any suitable educational arrangements for Y and was unable to find a local venue for Y to sit the exams. Section F of the final EHC Plan stated Y needed, “ongoing support and a clear plan to re-engage with a learning programme so than he will be ready to take GCSEs at the end of the academic year”. This support was to be provided by the chosen setting.
33. In July 2025, Mr X formally complained about the Council’s failure to comply with EHC Plan deadlines and provide Y with a suitable educational and support for Y’s SEN since July 2024 and poor communication by the case officer about several matters.

The Council’s position

34. In response to Mr X’s complaint and Ombudsman’s enquiries, the Council:

• accepted the EHC Plan was issued late. Staff absence was a contributary factor as well as Mr X’s decision to consider any other options than School P;
• accepted Y had not received support sent out in the final EHC Plan. However, this was due to Mr X refusing to consider any placement options other than School P;
• School P did not follow up on the Council’s offer to collectively meet with Mr X. Mr X was advised to make a complaint directly to School P;
• School P gave extensive reasons for refusing to offer Y a place. Its refusal was not based solely on proven academic ability. School P also had strong reservations about Y’s ability to cope with the school environment;
• success in the mock exams did not guarantee a place for Y at School P. Any discrepancies with the outcome of these exams would have to be made via School P’s complaints procedure;
• Mr X arranged and funded GCSE exams before the Council had chance to possibly offer assistance. The Council agreed to consider funding the exams and would contact Mr X about this. In response to Ombudsman’s enquiries, the Council agreed to reconsider the refunding of the examination fees.

35. Since bringing his complaint to the Ombudsman, Y’s Plan was amended in June 2026. This names a further education provision at Section I. Mr X is satisfied with this outcome.

Analysis

Lack of education/SEN support

36. The Council was not obliged to make educational provision for Y under section 19 from September 2024 due to his age. At the time Mr X told the Council he was no longer home educating Y (in July 2024), Y did not have an EHC Plan and so the Council was not under a duty to make alternative provision for Y. To pursue further education at this time, it was the responsibility of Mr X to apply to schools/colleges directly using their further education/sixth form admissions processes.
37. However, when rejecting the initial request for an EHC needs assessment in August 2024, the Council accepted Y had SEN, but those needs could be met within a school’s existing resources and so a Plan was not required. Mr X was told an SEN case officer would make enquiries of the EHE team to offer support to find a suitable college for him to sit GCSEs or find an appropriate solution.
38. In response to my enquiries, the Council accepted that this work did not take place. At this time Y was at a crucial stage of his education. His being able to sit exams that would potentially impact on his ability to access settings was of utmost importance and so the Council should have ensured appropriate support was offered.
39. Failure to be proactive in this matter was fault and I am satisfied that this caused Mr X distress and frustration.
40. I cannot say with any degree of certainty that this omission had any direct impact on how this case then progressed. What happened afterwards is closely related to Mr X’s intention for Y to attend School P and therefore the subject matter of the SEND Tribunal appeal.

Delay

41. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
42. The timescale for an EHC needs assessment, including issuing a final EHC Plan, following mediation is 14 weeks.
43. The Council agreed to carry out and assessment in September 2024. This meant the final EHC Plan should have been issued in December 2024. The final Plan was not issued until March 2025. This was a delay of approximately three months.
44. The delay was fault. This led to a delay in Mr X being able to lodge and appeal with the SEND Tribunal. I accept this caused Mr X significant distress, uncertainty and frustration. This injustice requires a remedy.
45. I am unable to make an assessment as to whether this delay impacted on when Y was able to return to an educational setting. This is because this matter is inextricably linked to the subject matter of Mr X’s appeal to the SEND Tribunal. For reasons I have already explained, this is outside the scope of this investigation.

Examination fees

46. My X says he had no choice but to pay and make the arrangements himself for X to sit GCSEs in November 2025 because the Council had failed to do so.
47. Y’s EHC Plan specified that Y should receive support at a setting to be able to sit these exams. However, I consider this specific issue to be too closely related to the subject matter of the SEND Tribunal appeal for me to be able to investigate further. In response to my enquiries, the Council has agreed to reconsider the issue of reimbursement. I would encourage the Council to consider Mr X’s request again, but it is outside my remit to direct the Council on what decision to make.

Back to top

Agreed action

48. Within four weeks from the date of my final decision, the Council agreed to take the following action.
1. Apologise to Mr X and Y for the injustice caused by the above faults. 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 in my findings.
2. Pay Mr X £300 as a symbolic payment to acknowledge the distress and frustration caused by the delay in the EHC Plan process and failure to action possible involvement from the elective home education service.
49. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

50. I found fault causing injustice. The Council agreed to take action to remedy injustice. On this basis, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman