The Ombudsman's final decision
Summary: We upheld part of Miss X’s complaint about delay in the Education, Health and Care Plan process for her child, Y. The Council agreed to apologise and pay Miss X £950. We will not investigate the remainder about the suitability of the Y’s school because it is outside of our jurisdiction.
The complaint
Miss X complains the Council failed to meet its statutory duties regarding her child, Y’s Education, Health and Care (EHC) Plan. She says it failed to: secure a suitable school placement; communicate with her effectively; and plan effectively for Y’s school transition.
Miss X says this has had a serious impact on Y, and he has missed out on education. She says this caused her significant frustration and uncertainty. Miss X wants an investigation into what happened, a financial remedy, action taken to secure a suitable school and service improvements.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
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) 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) 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.
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.
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide: any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
EHC Plan delays If we investigated this complaint, we would likely find fault because: Miss X asked the Council to assess Y’s special educational needs by an EHC needs assessment in May 2024. The Council agreed to assess.
However, it did not issue the final EHC Plan until August 2025. This was significantly outside the 20-week statutory timescale from request to final plan.
In its complaint response, the Council said part of the delay was due to a lack of Educational Psychologists.
The Ombudsman’s approach is that, although we acknowledge the national shortage of EPs, a failure to complete the EHC needs assessment process within the statutory timescales is fault. Where we are satisfied the Council has plans in place to address the lack of EPs, we would likely find fault due to “service failure”. Service failure can happen when an organisation fails to provide a service as it should have done due to circumstances beyond its control.
During a recent investigation by us about similar matters, the Council provided evidence of action it has taken to address the shortage of EPs. As a result, further investigation is unlikely to result in additional recommendations because the Council is already acting to resolve the issues.
We therefore asked the Council to consider remedying the personal injustice caused to Miss X by the delays.
School placement/ transition and communication issues Miss X appealed to the SEND Tribunal about the content of Y’s EHC Plan, including the named school. We cannot investigate matters which are closely linked to the appeal, including whether the Council should have named a different placement or how it consulted schools.
Miss X told the Council Y’s school had refused to admit him in September 2025 and asked it to arrange interim education. In its complaint response the Council accepted there were communication difficulties with the school, which meant Y did not attend between September and December 2025.
However, on balance, it is unlikely Miss X would have sent Y to that school during this period because she considered it unsuitable and had appealed against the placement. Miss X also did not send Y to the school after this period. The injustice caused by this fault is therefore limited.
The Council said the school placement was available from January 2026. We cannot investigate matters from this period. The reason Y did not receive the content of their EHC Plan is too closely related to the matter appealed to the Tribunal, and the law says we cannot investigate.
Poor communication The Council upheld poor communication in its complaints response and apologised to Mrs X. If we were to investigate this further, its unlikely we could achieve anything further.
Agreed action
Within four weeks of our final decision the Council agreed to: write to Miss X and apologise for the frustration and uncertainty caused by the delays in the EHC process; and pay Miss X a symbolic payment of £950. This is comprised of £700 due to the delay caused by a lack of Educational Psychologists and a further £250 for the frustration and uncertainty caused once the EP advice was available until the final EHC Plan was made.
Final decision
We upheld part of Miss X’s complaint because the Council agreed to resolve the complaint early by providing a suitable remedy for the injustice caused to Miss X. We cannot investigate part of the complaint because Miss X appealed to a tribunal. We will not investigate the remainder because the tests in our Assessment Code are not met.
Investigator's decision on behalf of the Ombudsman