Summary: Miss X complains the Council failed to provide suitable education and special educational needs support to her child D when they were out of school. There was fault by the Council which caused D to miss education and special educational needs provision. It also caused avoidable distress for D, and avoidable distress, time, and trouble for Miss X. The Council agreed to apologise, properly consider whether the alternative education in place for D is suitable, and pay a financial remedy. It will also review relevant processes and issue reminders to its staff.

The complaint

1. Miss X complains the Council failed to provide suitable education and special educational needs (SEN) support to her child D when they were out of school in 2023 and 2024. She says the Council:
• delayed in reviewing D’s Education, Health, and Care (EHC) Plan and finding a suitable school placement so D could return to a school setting;
• provided confusing, contradictory information about whether it agreed D needed a special school placement; and
• failed to provide suitable alternative education and SEN support while D was out of school.
2. Because of this Miss X says D missed education, SEN support, and socialisation. She also says this was stressful and frustrating for her.
3. Miss X wants the Council to:
• ensure D receives suitable alternative education and SEN support while out of school until it finds a school placement; and
• acknowledge its failings and that its confusing communications have made the situation worse, and apologise.

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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. 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.
6. 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)
7. 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)

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How I considered this complaint

8. I considered:
• information provided by Miss X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Miss X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Legislation and guidance

Education, Health, and Care (EHC) Plans

11. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

13. 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)  
14. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

Naming a school in an EHC Plan

15. The child’s parent or the young person has the right to request a particular school, college, or other institution (within certain limits), be named in their EHC Plan.
16. If a child’s parent or a young person makes a request for a particular school (within certain limits), the council must comply with that preference and name the school in the EHC Plan unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person; or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.
17. Where a school is consulted to be named in the EHC Plan, it should respond within 15 days. When a council names a school or other institution in a child’s final EHC plan, the school/ institution has a duty to admit the child.

EHC Plan reviews

18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
19. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
20. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
21. The Council must then issue any final amended EHC Plan within eight weeks of the notice of proposed amendments. (R(L, M and P) v Devon County Council [2022]). Therefore, it must issue a final Plan within twelve weeks of the review meeting.

Alternative education for a child out of school

22. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
24. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
25. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
26. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
27. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

EHC Plan appeal rights

28. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement. Only the Tribunal or the Council can direct changes to the sections of an EHC Plan about the child’s needs, education, or the name of the educational placement. The Ombudsman cannot do this.
29. There is a right of appeal to the SEND Tribunal against:
• a decision not to amend an EHC Plan following a review; and
• once a Council issues a final EHC Plan, the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.
30. 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)
31. This means if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or a consequence of, a parent or young person’s disagreement about the SEN provision or educational placement in the EHC Plan, we cannot investigate a lack of SEN provision, or alternative educational provision.
32. 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.
33. 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). 
34. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

What happened

35. In September 2022 D started year 3 at a mainstream primary school, with an EHC Plan in place. The Council updated D’s EHC Plan in December 2022, following an annual review.
36. In May 2023, D’s school held an EHC Plan annual review meeting. The Council did not attend, but in the paperwork sent to the Council, the school recorded:
• D had some absences during year 3 due to illness. Miss X had concerns D was finding it increasingly challenging to attend a mainstream classroom; and
• Miss X wanted D to move to a special school placement and the school supported that D needed this.
37. A month later, D’s school told the Council it had reduced D’s timetable due to increased anxiety in school and would send paperwork about this for approval. The school asked the Council to progress the EHC Plan review urgently and decide about a change of placement. A few days later the Council decided D needed a special school placement. It did not tell Miss X or D’s school about this decision or take any steps to action it.
38. In September 2023, D started year 4. The school intended D to attend a reduced timetable of two hours per day.
39. In October 2023, D’s school held another EHC Plan annual review meeting. The Council did not attend, but in the paperwork sent to the Council, the school recorded D was struggling to attend their reduced timetable and needed a special school placement immediately. Shortly after this D stopped attending school altogether.
40. In February 2024, the Council told Miss X it agreed D needed a special school placement. However, it had decided it would not amend D’s EHC Plan following the October 2023 review meeting and instead would arrange alternative education while it identified a suitable placement. Two weeks later, Miss X complained because alternative education was still not in place.
41. In late-March 2024, the Council issued a final amended EHC Plan for D. This still named their mainstream school placement in Section I. Section F setting out the SEN provision remained largely the same. The only significant changes were in Section B, which set out D’s needs.
42. In June 2024, following various complaint correspondence between Miss X and the Council, we began our investigation. The following week the Council arranged an online tutor for D for three hours a week.
43. D ended year 4 in July 2024, at which point:
• Miss X had appealed to the SEND Tribunal about the March 2024 EHC Plan. She disagreed with the mainstream school placement and SEN provision; and
• D was still out of school and the Council had not found a special school placement. The online tutoring was available to D, but Miss X said this was not suitable and D struggled to access it.

My findings

EHC Plan review

44. We can look at delays in the EHC Plan review process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault with significant breaches of those timescales.
45. After the May 2023 review meeting, a month later the Council internally agreed D needed a special school placement. It therefore should have issued a decision notice to explain it intended to amend the type of school in Section I of the Plan, and then issued that amended Plan by mid-August 2023. The Council did not follow the correct process and did not issue a decision about whether it would amend the Plan. This was fault.
46. After the school held another review meeting in October 2023, the Council again failed to issue a decision about whether it would amend the Plan within four weeks. This was fault. When the Council eventually wrote to Miss X in February 2024, over twelve weeks late, it said it would not amend the Plan. However, in the same letter it told Miss X it agreed D needed a special school instead of the mainstream placement named in the Plan. In the circumstances I consider this was confusing and contradictory information, so was fault.
47. In March 2024, the Council then issued an amended EHC Plan, despite saying six weeks earlier it would not amend the Plan. It had not issued any draft Plan before this to explain the proposed amendments, or to seek Miss X’s views. This was also 31 weeks after the latest October 2023 review meeting, a significant delay. The Council did not follow the statutory review process, which was fault.
48. This fault caused Miss X distress and confusion and frustrated her right to appeal to the SEND Tribunal. The Council should remedy the injustice caused to Miss X.

Consultation with special schools

49. The Council decided in June 2023 D needed a special school, and that it would consult the following schools:
• School A – a special school Miss X expressed a preference for at the May 2023 annual review.
• School B – a special school the Council considered would be suitable for D.
50. However, it did not take any action to consult schools until after the later October 2023 review meeting. The Council consulted School B following the October review meeting and did not consult School A until January 2024, seven months after its decision to consult the school. The Council then consulted a further three schools in January, April, and June 2024, but failed to find a placement.
51. The Council did not take enough action to secure a suitable special school placement. There were significant gaps where it took no action to progress this, which was fault. This caused Miss X distress and there remains uncertainty about whether the Council would have found a special school placement sooner had it acted without fault. The Council should remedy the injustice caused to Miss X and D.

Alternative education while out of school

52. I found the Council should have considered its section 19 duty to provide D with an alternative education from mid-June 2023, when the school told the Council it had reduced D’s timetable. The school said it would provide details of the timetable. However, the Council did not follow up on this or assure itself D was receiving an education which was suitable for them, for enough hours. This was fault. Had the Council properly considered this, I found, on the balance of probabilities, it would have decided to arrange alternative education for D. Had it acted in good time to arrange it, my view is provision would have been in place from September 2023, the start of year 4.
53. The Council then agreed to arrange alternative education from January 2024, once it considered this. However, it failed to put anything in place until June 2024, after we began our investigation. This was fault. It also did not properly consider whether the online tutoring it eventually arranged was enough hours, or was suitable for D’s age, ability, aptitude, and SEN. This was further fault.
54. I found due to the Council’s fault, D went without suitable alternative education for three terms, from September 2023 to July 2024. However, as explained at paragraphs 30 to 33, there are limits to our investigations where there is a right to appeal to the SEND Tribunal about a final EHC Plan. The Council issued a final Plan in March 2024, after which Miss X appealed to the Tribunal. We cannot investigate any matter which has been appealed or is connected to an appeal. Part of Miss X’s appeal was about the Council’s failure to name a suitable school setting in the Plan. D’s missed education is connected to the issue Miss X appealed. Therefore, I cannot investigate, or recommend a remedy for, any lack of alternative education from the point the Council issued the final amended EHC Plan on 27 March 2024.
55. Therefore, the Council should remedy the injustice caused to D by missed education from September 2023 (when alternative education reasonably should have been in place) to 27 March 2024 (when the appeal right arose). This is two terms of education. The Council should also provide a remedy for the distress caused to D and Miss X by its failure to consider its section 19 duty to D.

Delivery of EHC Plan while out of school

56. D’s EHC Plan set out, in section F, the special educational provision they must receive. The Council had a duty to ensure this provision was in place under section 42 of the Children and Families Act. Section F of the Plan remained largely the same when the Council updated it in March 2024. The provision D should have received included:
• various in-class support with communication, speech and language, social skills, and emotions. This was to be embedded throughout the school day, by suitably trained teachers and teaching assistants working with D. The support was to be reviewed termly by the school and Miss X; and
• access to sensory objects and a quiet working space.
57. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to show proper oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when it issues a new or amended EHC Plan or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that provision is not in place at any time.
58. From June 2023, the school told the Council D was on a reduced timetable and asked it to urgently review the Plan. The Council therefore should have taken steps to ensure the EHC Plan provision was in place, or considered how far it was possible to do so given D’s circumstances, while not attending school full time. The Council did not consider what provision from the Plan could practicably be delivered outside a school setting, or whether the school’s proposed timetable aligned with this. The Council still did not consider this once it became aware D was out of school altogether in October 2023. This was fault.
59. In responding to Miss X’s complaint, the Council accepted D’s EHC Plan had not been in place. It should remedy any injustice caused by the 3.5 terms of SEN provision D missed from June 2023 to July 2024. The Council should also provide a remedy for the distress caused to D and Miss X by its failure to deliver D’s SEN support.

Complaint handling

60. The Council’s complaints procedure says where a complainant is not satisfied with its Stage 1 response, they can escalate this to Stage 2. After Stage 2 the Council will then direct them to approach the Ombudsman.
61. The order of events in Miss X’s case was as follows.
• February 2024 – Stage 1 complaint.
• March 2024 – Stage 1 response from the Council. Miss X escalated her complaint two days later.
• April 2024 – Further Stage 1 response.
• May 2024 – Miss X escalated her complaint again. The Council issued a third Stage 1 response two weeks later.
62. The Council never issued a Stage 2 complaint response to Miss X so did not follow its own complaints procedure. With each Stage 1 response it told Miss X she could approach the Ombudsman but also pointed out we would not look at her complaint until the Council had completed its procedure. The Council explained its reasons for repeated consideration at Stage 1. It said it was not its intent to be obstructive to Miss X; at the time it considered this would provide the quickest resolution, but it accepts in hindsight that this caused delay. I accept the Council did not intend to obstruct Miss X, but consider it was at fault because it did not follow its complaints procedure. Its actions caused Miss X avoidable time and trouble and frustrated her right to complain to the Ombudsman. The Council should remedy the injustice caused.
63. The Council also provided confusing information in responding to the complaint. In its first March 2024 response, the Council wrongly said its view was D’s needs could be met in a mainstream school. In its April 2024 response, the Council corrected this and apologised for the confusion. I consider this suitable to remedy the injustice caused.

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Agreed action

64. Our guidance on remedies says:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss; and
• in addition to educational provision, we recommend extra remedies for loss of SEN support such as direct therapies and interventions. The level of financial remedy for this is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child.
65. In deciding a suitable financial payment to recognise the education and SEN support D missed, I considered the following.
• D was in years 3 and 4 for the period I considered. As set out in our guidance on remedies, we do not consider this to be one of the most significant periods in a child’s school career, as we would say for the first year of secondary school.
• I cannot say, even on the balance of probabilities, whether D would have been able to engage with full-time-equivalent education if this had been available to them from the start in a suitable format. However, D did not receive any education, other than occasional attendance at school (which had confirmed it could not meet their needs), and limited online tutoring in June 2023 (which they could not engage with).
• D did not receive any of the SEN provision from their EHC Plan. However, the provision missed was not significant hours of direct therapies or interventions, such as Occupational Therapy or Speech and Language Therapy.
66. Based on these factors, I decided the Council should provide a remedy of:
• £1,800 per term for the 2 terms of education D missed from September 2023 to March 2024; and
• £300 per term for the 3.5 terms of SEN support D missed from June 2023 to July 2024.
67. Within one month of our final decision the Council will:
1. apologise for the faults identified and the impact of those faults on the family. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
2. consider and record whether the alternative education that is now in place for D (while they are waiting for a special school placement) is suitable for them This consideration should include:
1. whether it is suitable for their age, ability, and aptitude;
2. whether it is suitable for their SEN and aligns with their EHC Plan as far as is possible outside a school setting;
3. whether the number of hours is suitable based on what they can cope with, or should be increased to be full-time equivalent; and
4. a plan for dates of regular reviews to ensure the provision (and number of hours) remains suitable for D.
3. pay the family a total of £5,150 comprising of:
1. £4,650 to recognise the missed education and SEN provision;
2. £300 to recognise the avoidable distress, time, and trouble caused to Miss X by the Council’s failings; and
3. £200 to recognise the avoidable distress to D.
68. Based on the faults identified, I would usually propose a recommendation for the Council to ensure it meets statutory timescales for EHC Plan reviews and follows the correct review process, including consultation with schools. In October 2024, the Council agreed to our recommendation for case 23019550, to update us on its actions to improve its SEND service. This included staff recruitment, new systems to manage its caseload, and improvements to its school consultation process. We are still corresponding with the Council about completion of this recent recommendation. Therefore, I do not consider it appropriate to make further recommendations about similar faults now.
69. Within three months of our final decision the Council will:
1. issue a reminder to relevant staff, with a copy of our decision, to ensure it properly considers and records its section 19 duties to arrange suitable alternative education when a child is out of school, and keeps this under regular review;
2. review its process for when a child with an EHC Plan is out of school, to ensure it meets its duty to secure the provision in the Plan as far as possible outside a school setting. It will decide whether it needs to make any administrative changes to its processes, or deliver training to staff, to ensure this is not missed in future, as it was in D’s case;
3. issue a reminder to relevant complaint handling staff about its two-stage complaints procedure. It should explain the importance of escalating complaints about the same issues to Stage 2 instead of reconsidering at Stage 1, so as not to delay complainants in approaching the Ombudsman.
70. The Council will provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation. There was fault by the Council which caused D to miss education and SEN provision. It also caused avoidable distress for D, and avoidable distress, time, and trouble for Miss X. The Council agreed to our recommendations to remedy this injustice, review relevant processes, and issue reminders to its staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman