Summary: Ms F complained about how the Council handled her son’s (Y) Education, Health, and Care plan process and how it communicated with her. We found the Council at fault for causing a six-month delay in the statutory process. It also failed to acknowledge and respond to much of her communication. In addition to its apology, it will make payment to Ms F to acknowledge the impact its faults caused.

The complaint

1. The complainant, Ms F, complained about the Council’s handling of her request for an Education, Health, and Care (EHC) plan for her son Y. She said:
• it had wrongly refused her requests, and it caused significant delays in producing his EHC plan when it had agreed to do so; and
• it had failed to respond to her communication and its responses were poor.
2. Ms F also complained about Y’s school. She said he had experienced discrimination, and it had failed to put reasonable adjustment in place for him. She disagreed with how the school had recorded attendance, and how it had responded to her information requests.
3. She also said Y stopped attending school in September 2024, but no provision has been put in place for him and the Council is seeking a placement for September 2025.

Back to top

The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
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 SEND Tribunal in this decision statement.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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)
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(i), as amended)

Back to top

What I have and have not investigated

11. I have investigated Ms F’s complaint about the Council’s delay in completing Y’s EHC plan and how it communicated with her.
12. I have not investigated Ms F’s:
• concerns about the Council’s refusals to assess or complete an EHC Plan for Y before December 2023. This is because she had appeal rights to the SEND Tribunal to dispute the Council’s decisions, and earlier period of dispute are late;
• complaint against Y’s school. This is because I cannot consider complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan;
• complaints about the Council’s handling of Y’s educational provision for the 2024/2025 academic year as this relates to matters which occurred since she complained to the Council and brought her complaint to our attention. I understand Ms F has brought a new complaint to the Council’s attention; and
• concerns about the Council’s final EHC plan for Y and the type of placement listed. This is because disagreements about school or type of school placements in Section I of an EHC plan, carried appeal rights to the SEND Tribunal. Ms F has since exercised this right.

Back to top

How I considered this complaint

13. As part of my investigation, I have:
• considered Ms F’s complaint and the Council’s responses;
• discussed the complaint with Ms F and considered the information she provided;
• considered the information the Council provided in response to our enquiries; and
• had regard to the relevant law and guidance to the complaint.
14. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
15. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Education, Health, and Care (EHC) plans

16. A child or young person with special educational needs may have an 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.
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 guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• If the council goes on to issue an EHC Plan, 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. 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.
19. There is a right of appeal to the Tribunal against:
• the 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

What happened

20. Ms F son (Y) is of compulsory school age. She said she initially asked the Council to assess Y for an EHC plan since late 2021 due to his special educational needs and diagnosis.
21. The Council did not agree to Ms F’s requests, and she appealed to the SEND Tribunal.
22. In December 2023 the Council revised its view before the Tribunal appeal was considered, and agreed Y should be issued an EHC plan. A draft plan was issued in January 2024.
23. Ms F said she continued to contact the Council to get it to issue Y’s EHC plan since. However, it failed to respond to her communication due to staff shortages. She requested an emergency meeting in March 2024 as Y was in school without the support he needed.
24. Two weeks later Ms F had not received a response, so she complained to the Council.
25. In response the Council apologised for the delay in completing Y’s EHC plan and its lack of communication. It explained this was because the allocated officer to Y’s case was unexpectedly absent, and there were pressures on its service which made it difficult to reallocate his case. It also said it had a backlog of cases.
26. Ms F continued to chase the Council over the following months, but Y’s EHC plan was not finalised.
27. The Council issued its final complaint response in June 2024 which again explained the challenges the Council had. It apologised for the delay and poor communication again. It said it would issue his plan soon.
28. Ms F asked the Ombudsman to consider her complaint.
29. In September 2024 the Council issued Y’s final EHC plan. This did not list a school but listed mainstream school as the type of placement Y needed.
30. Ms F said a placement at an independent school was available for September 2024, but this did not go ahead as Y’s EHC plan was not finalised at the time. She also said since September 2024, Y has stopped attending school, and his allocated school says it cannot meet his needs. She has since appealed Y’s EHC plan to the SEND Tribunal.

Analysis and findings

Delay in the EHC plan process

31. The Council has accepted it failed to adhere to the statutory timescales to complete Y’s EHC plan. This was fault which resulted in a six-month delay in the process.
32. Y continued to attend his allocated school during this period, although with some increasing difficulties. While Y’s school therefore did not have his EHC plan, I cannot say what injustice this caused Y. This is because I cannot say what provision would have been in his EHC plan but for the delay, and Ms C has since appealed the provision in the September 2024 EHC plan to the SEND Tribunal.
33. I found the Council’s delay caused Ms F unnecessary distress and uncertainty. She also had a delay to exercise her right to appeal to the SEND Tribunal. While the Council has apologised, I am not satisfied this was enough to acknowledge the impact its faults had on her.

Council’s communication and complaints handling

34. The Council also accepted it communicated poorly with Ms F and failed to respond to some of her communication. This was due to its officer absence, pressures on its services, and its inability to reallocate Y’s case to another officer. This was fault.
35. I have also considered the Council’s complaint response, which was very limited in relation to Y. It reassured her it would work on Y’s case and issue his final amended EHC plan. However, it continued to have delays in the process.
36. I found the Council’s poor communication, lack of responses, and unkept reassurance caused Ms C further distress due to the uncertainty and lack of trust in the Council’s ability to adhere to its statutory duties.

Service improvements

37. We have recently made service improvements on a similar decision. The Council has not yet had the opportunity to put our recommendations in place, I have therefore not made any service improvements on this case.

Back to top

Agreed action

38. To remedy the injustice the Council caused to Ms F, the Council should, within one month of the final decision:
1. pay Ms F £300 to acknowledge the distress and uncertainty the Council’s faults caused her, including her delayed opportunity to exercise her appeal rights to the SEND Tribunal.
39. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

40. I have completed my investigation with a finding of fault which caused her an injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman