Summary: Mrs X complained the Council delayed issuing her child, Y’s Education, Health and Care (EHC) Plan and then failed to ensure they received the provision in the plan from July 2023 until May 2024 after it named an inappropriate school. The Council delayed issuing Y’s final EHC Plan by five months. It agreed to apologise and make a payment for the injustice that caused. Mrs X appealed the content and named placement in Y’s EHC Plan to the SEND tribunal therefore I cannot investigate the period July 2023 until May 2024 as it falls outside our jurisdiction.

The complaint

1. Mrs X complained the Council delayed issuing her child, Y’s Education, Health and Care (EHC) Plan between February and July 2023 following an EHC needs assessment. She also complained the Council has failed to ensure Y received provision in line with the EHC Plan since it was issued.
2. Mrs X said this has caused distress, uncertainty and a loss of education for Y.

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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. 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(i), as amended).
5. 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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How I considered this complaint

6. I considered Mrs X’s complaint and the information she provided.
7. I considered information from the Council.
8. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

9. 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.
10. 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.

SEND tribunal 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 SEND Tribunal in this decision statement. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.
12. 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).
13. 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).

What happened

14. Mrs X has a child, Y who is of primary school age, with special educational needs. In June 2022 the Council conceded an appeal Mrs X made to the SEND tribunal about its decision not to carry out an EHC needs assessment for Y. The Council decided to issue Y with an EHC Plan in December 2022 and subsequently issued a draft EHC Plan in February 2023. During this period Y was receiving alternative provision as she was not attending a school.
15. Mrs X complained to us in 2022 about the delays in the EHC needs assessment process. We issued a final decision in May 2023 finding fault with the Council and it made payments to Mrs X to acknowledge the injustice caused by the delays up to February 2023. The delays were down to an unprecedented number of EHC needs assessment requests over the last 18 month and a local and national shortage of Education Psychologists.
16. Following our final decision, the Council took a further five months to issue Y’s final EHC Plan which it did in July 2023. The final EHC Plan named a mainstream primary school.
17. Mrs X appealed both the content of the final EHC Plan and the named placement to the SEND tribunal.
18. In October 2023 Mrs X complained to the Council that it had failed to ensure Y received the provision in the EHC Plan as she was unable to attend the named placement. Mrs X said the named placement was unsuitable and she wanted Y to have an Education other than at school (EOTAS) package.
19. The Council responded to Mrs X’s complaint in November 2023 and said it was continuing to support Y in accessing a school setting. The Council said it would setup a meeting with an Educational Psychologist to look at how it could help Y reintegrate back to school. The Council said would also continue working towards a resolution via the appeal process.
20. Mrs X remained unhappy and complained to us. She complained about the further delay in issuing Y’s final EHC Plan in between February and July 2023 and naming in an inappropriate school in the plan.
21. Since complaining to us the tribunal process ended in April 2024 after the Council agreed to an EOTAS package for Y. The Council issued an amended EHC Plan in May 2024.

My findings

22. We expect councils to follow statutory timescales set out in the law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
23. After the Council issued Y’s draft EHC Plan in February 2023 it took another five months to issue the final EHC Plan. That delay was fault and caused Mrs X distress and frustration as well as a delay in her receiving the appeal rights to the SEND tribunal which she ultimately used.
24. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. I have therefore not recommended any further service improvements in respect of this.
25. The other element of Mrs X’s complaint is about both a lack of provision in line with the EHC Plan and the decision to name a mainstream primary school in the plan. Due to the restrictions set out in paragraphs 14-16 I have not investigated the period from July 2023 onwards. Mrs X used her right of appeal to the SEND tribunal which is best placed to decide the content of and the named placement in an EHC Plan. Y’s lack of provision and absence from the named placement was not separable from the appeal.
26. If Mrs X has any further concerns about Y’s EHC Plan or education following the May 2024 EHC Plan then it is open for her to make a new complaint.

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Agreed action

27. Within one month of the final decision the Council agreed to apologise to Mrs X and pay her £500 to acknowledge the distress, uncertainty and the delayed appeal rights caused by the delay in issuing Y’s final EHC Plan between February and July 2023. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I completed this investigation. I found fault and the Council agreed to my recommendation to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman