Summary: Mrs X complained the Council failed to provide the special educational provision detailed in her child, Y’s, Education, Health and Care Plan. We find the Council at fault for a delay in providing educational provision when it was aware the named setting was unable to meet Y’s needs. This caused Mrs X distress and frustration and meant Y missed out on education for approximately three months. The Council has agreed to apologise and make a symbolic payment.

The complaint

1. Mrs X complained the Council failed to provide access to suitable, full-time education for her child when they were unable to attend school. Mrs X also complained the Council failed to provide the special educational provision detailed in section F of her child’s Education, Health and Care Plan. Mrs X told us this has had a financial strain on the family as both herself and her husband’s careers have been impacted. Mrs X also told us her child’s mental health and wellbeing have been impacted. Mrs X would like the Council to apologise, pay the funding for missed provision and make a symbolic payment for the distress and frustration caused by the faults.

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The Ombudsman’s role and powers

2. 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.
3. 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)
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. 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)
6. 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 have and have not investigated

7. I have investigated the Council’s actions in securing special educational provision and access to suitable education from May 2024, which is when the Council became responsible for maintaining Y’s EHC Plan.
8. I have also investigated the Council’s actions in completing an annual review which took place in November 2024.
9. 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).
10. 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 special educational placement in the Education, Health and Care (EHC) Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
11. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
12. The Council issued a final amended Plan for Y in March 2025. Mrs X had requested an Education Other than At School package for Y, which the Council did not agree to provide. The Council continued to name a specialist setting in Y’s Plan. Mrs X could have appealed the Council’s decision. For this reason, I have not investigated the Council’s action in providing access to education or special educational provision after March 2025.

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How I considered this complaint

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

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What I found

Legal and administrative background

Education, Health and Care Plans

15. 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. 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.
16. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  

Section 42 duty

17. 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)  
18. 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 demonstrate appropriate 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 a new or amended EHC Plan is issued 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 the provision is not in place at any time. 

Annual Reviews

19. 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 then take place.
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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Section 19 duty

21. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
22. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))

What happened

23. The following is a summary of key events. It is not intended to be a detailed chronology.
24. Y’s EHC Plan was transferred to Knowsley Council in the second week of May 2024. This Plan was issued by the old Council in February 2024. The Plan named a specialist primary school placement and did not detail any attendance difficulties.
25. Two days after Y’s EHC Plan was transferred, the named school contacted the Council to explain it could no longer meet Y’s needs due to them not attending. The school told the Council it planned to put an interim package of education in place. The Council were aware of Y’s attendance difficulties from this date however it had reason to believe the named school was acting to secure suitable education.
26. The Council consulted with Mrs X’s preferred school the same week. This school offered Y a place to begin in June 2024. The Council issued a final plan naming Mrs X’s preferred setting in June 2024.
27. The named setting contacted the Council in the middle of July 2024 to explain Y was not attending.
28. The Council contacted Mrs X the following day. Mrs X told the Council Y would not be attending school until September due to him being unwell.
29. Y did not transition to the new school in September 2024 as expected. Mrs X requested the school provide tutoring due to Y not attending.
30. Mrs X asked the Council to complete an early review of Y’s EHC Plan. An annual review meeting took place in the second week of November 2024 and the Council decided to amend Y’s Plan. In accordance with statutory timeframes the Council should have issued an amended EHC Plan by 5 February 2025.
31. As part of the early annual review the Council asked the school to provide Y with work to complete at home. Mrs X declined this offer and requested the Council remove the setting named in section I of Y’s EHC Plan and instead provide education other than at school, ‘EOTAS’.
32. In December 2024, the Council’s placement and provision panel declined Mrs X’s request for EOTAS as it was not convinced there were no suitable settings available for Y. Three days later the Council acknowledged Y was unable to attend school for medical reasons and agreed to fund a tuition package as an interim measure.
33. The Council has failed to provide any details which explain how it determined the tuition package provided for Y from December 2024 met its duty to provide access to suitable, full-time education.
34. The Council issued a final amended EHC Plan which continued to name the same school in the first week of March 2025.

My findings

35. There is no fault in the Council’s actions in monitoring Y’s school attendance and provision between May 2024 and July 2024. The Council was advised the named setting would provide Y’s provision in May 2024 and it had no reason to further consider its section 42 duty. When the Council was made aware Y was not attending school in July 2024 it took action to discuss Y’s attendance with Mrs X. The Council was satisfied Y was unable to attend for medical reasons and would return to school after the summer holidays.
36. Y did not return to school in September 2024 due to his medical needs. The Council had a duty from this date, to secure suitable, full-time provision under section 19 of the Education Act 1996. The Council did not secure provision until December 2024. This is a delay of approximately 3 months and covers one school term. This delay is fault which caused Y and Mrs X distress and frustration and meant Y did not have access to education during this time.
37. The Council has failed to evidence how it considered the tuition package it put in place for Y from December 2024 ensured its section 19 duty to provide suitable, full-time education was met. The Council’s failure to document its decision making in relation to its section 19 duties is fault which caused Mrs X uncertainty and frustration.
38. There was a one month delay in the Council issuing the final amended Plan following the November 2024 annual review. The delay is fault which caused Mrs X distress, frustration and uncertainty and delayed the right to appeal.
39. In response to our enquiries the Council told us it has recently delivered targeted staff training and introduced a new protocol specifically for children with EHC Plans who are out of education, providing clearer expectations and stronger manager oversight. I have therefore not made any further service recommendations.

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Action

40. Within one month of the final decision the Council will:
• Apologise to Mrs X for the faults identified. 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 its apology.
• Make a symbolic payment of £900 in recognition of the injustice caused by the delay in securing the tuition package for Y. This payment is in line with our guidance on remedies where a fault has resulted in the loss of educational provision.
• Make a symbolic payment of £350 in recognition of the delay in issuing the final EHC Plan following the November 2024 annual review and the uncertainty caused by the Council’s failure to record its section 19 decision making.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman