Summary: Miss X complained the Council failed to provide her child, Y, with the support outlined in their Education, Health and Care (EHC) plan and that Y’s school placement failed. We found there was fault causing injustice when the Council delayed investigating Y’s EHC Plan provision and delayed issuing Y’s amended EHC Plan following a review. The Council offered a suitable remedy for the injustice and will review the case to identify learning. The Council’s decision to name a school in Y’s EHC Plan came with a right of appeal and is outside the Ombudsman’s jurisdiction, as is the education Y missed during the appeals process.

The complaint

1. Miss X complained the Council failed to provide her child, Y, with the support outlined in their Education, Health and Care (EHC) Plan and that Y’s school placement failed. As a result, Y was out of school from the end of 2022 and received no education until the Council named a new school in 2025 following an appeal.
2. Miss X said the Council’s failings caused her distress. She said Y missed vital early years of development and will need a high level of support to make up for the missed education.

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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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What I have and have not investigated

6. I investigated events dating back to the end of 2022, before Y stopped attending school, up to September 2023 when the Council issued Y’s updated EHC Plan continuing to name the school. This decision came with a right of appeal to the Tribunal, which Miss X eventually used. The period after September 2023 is outside the Ombudsman’s jurisdiction.

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How I considered this complaint

7. As part of the investigation, I considered the complaint and the information Miss X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special Educational Needs and Disabilities (SEND)

Education, Health and Care Plans

10. 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. 
11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)).
12. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
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. 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. 

Reviewing EHC Plans

15. 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. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. 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.

Appeals

17. 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)
18. 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.
19. 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.

Alternative provision

20. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
22. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
23. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

What happened

24. I have summarised below some key events leading to Miss X’s complaint. This is not intended to be a detailed account of what took place.
25. Y has a diagnosis of Autism Spectrum Disorder, developmental delay, sensory processing difficulties and sleep difficulties. Y also has an EHC Plan. In September 2022, Y started attending a school for autism (‘the school’).
26. An annual review of Y’s EHC Plan started in November 2022 and included reports from Y’s teacher, the school OT, and Y’s SALT.
27. The report from Y’s teacher stated Y was very happy coming to school, had made relationships with staff and peers, engaged independently with some activities, and accessed a range of activities to meet their sensory needs.
28. The result recorded on the review was that Y’s EHC Plan needs were partially met and the school was still able to meet Y’s needs. Y’s EHC plan needed updating and an updated OT report was needed.
29. Miss X contacted the Council on 9 January 2023 expressing concerns about Y’s placement at the school. She said Y was deteriorating, the school was not suitable, and was not meeting Y’s needs. She also said the school did not safeguard Y and she witnessed unsafe behaviour and children unsupervised. The Council asked Miss X to send specific concerns about safeguarding.
30. Miss X emailed a Council officer with details of the safeguarding incidents at school. She mentioned Y eating objects such as a plastic letter and a foam ball. She also said the school left Y outside unsupervised, and left Y in wet socks despite having spare pairs. Miss X said Y was deteriorating in all areas because the school was not meeting their needs.
31. The school contacted the Council for advice on 24 March 2023 as Y had not attended since 8 February 2023. The school said Y’s parents refused to send Y to school as they were not happy with provision. The head teacher had unsuccessfully tried to resolve matters with Y’s parents.
32. The Council asked the school how it was marking the register.
33. The Council spoke to Y’s Educational Psychologist (EP). They did not consider it was necessary to re-assess Y, as there was little new provision, but they considered Y needed one-to-one support due to eating inedible items.
34. The Council noted the result of Y’s recent annual review in 2022 was positive, but by early 2023 Miss X removed Y from school. Given there was no new provision, the Council considered it should stick with the school and set up one-to-one support for Y.
35. The school emailed the Council in April 2023. It said it was not marking Y’s absence as unauthorised, as it had been working with the family to try and support what they wanted. However, things had broken down and Miss X was disengaging.
36. Miss X emailed the Council on 2 May 2023 to chase its response to the safeguarding concerns she raised in January. The Council said Miss X should raise this with the school. It said a caseworker would contact Miss X to discuss Y’s situation and the available options.
37. Miss X chased the Council for Y’s amended EHC Plan on 9 May 2023. The Council sent the draft amended plan on 10 May. It also asked Miss X to confirm if she wanted the Council to consult other schools. It said it would consult Y’s current school, and mentioned a different school it would also consult. It said once it received consultation responses, it would hold an Inclusion Placement Panel (the Panel) meeting for a decision, which Miss X could appeal if she did not agree.
38. The Council emailed Miss X on 17 May 2023, confirming it received a report from the OT and would include it in Y’s amended EHC Plan, and any changes Miss X wanted to make.
39. Miss X said Y needed a full OT assessment, as mentioned during Y’s review in November 2022.
40. The Council agreed to a full OT assessment. However, it said it was not looking for a new school for Y as it saw nothing from the current school saying they could not meet need, or a reason Y cannot attend.
41. Miss X said Y had declined since being at the school and there was a serious safeguarding incident in January 2023. She said the school did not put one-to-one or two-to-one support in place and did not follow Y’s EHC Plan.
42. The Council said it spoke with the school headteacher and read the annual review paperwork. It said it could consult other schools if Miss X had a preference, but in the meantime, it would not provide alternative provision unless there is medical evidence Y cannot attend school.
43. Y’s SALT emailed the Council after meeting Y’s parents and discussing amendments to the EHC Plan. Y’s parents felt the OT provision in the Plan was out of date and Y needed a full OT re-assessment as their needs had changed.
44. The Council confirmed it did refer Y for a new OT assessment, but the OT’s professional opinion was that another assessment was not necessary. That was because the last report was comprehensive and carried out while Y was in school.
45. The Council issued Y’s final amended EHC plan on 10 August 2023, continuing to name the school. It told Miss X about her appeal rights, asked her to confirm her plans on appealing, and any preferred schools for Y.
46. Miss X said a lack of communication and negligence from the Council meant it took Y’s case to the Panel without the correct information. She had positive responses from other schools she consulted but the Council named a school Y refuses to attend and caused Y harm.
47. The Council told Miss X to raise this through its complaint process. It did not agree with the points Miss X raised about its decision making or the placement. It said if Miss X had details of schools that can meet Y’s needs, then to provide this information.
48. Miss X’s local MP contacted the Council on her behalf on 22 August 2023 about Y’s placement.
49. The Council contacted Miss X on 5 September 2023 confirming it completed Y’s EHC Plan and continued to name the same school. It said it would ensure the school had the resources to continue to meet Y’s needs.
50. Miss X said the school did not have the resources and she would not send Y to the school under any circumstances.
51. The Council said it was satisfied it secured the provision in Y’s Plan through the placement at the school. It said no other school had told the Council it could meet Y’s needs. The Council referred Miss X to guidance on its website if she disagreed with the decision.
52. Miss X complained to the Council about the problems with Y’s EHC Plan provision at the school, and about the Council’s decision to name the school in Y’s updated EHC Plan. She also complained about poor communication.
53. The Council responded to the local MP on 11 September 2023. It said it considered Y’s placement at the Panel and decided the school can continue to meet Y’s needs. The school shared this view and was committed to delivering the content in Y’s EHC Plan. The Council did not believe it had a duty to provide alternative provision at that point.
54. The Council also responded to Miss X’s complaint on 11 September. It said:
• It remained in discussion with the school to ensure it delivers Y’s EHC Plan. This could include more funding for extra staffing if the school needs it to safely deliver Y’s Plan.
• Its decision to name the school followed the correct Panel process. It recognised some consultation responses were not back, but said these were consultations Miss X made. All settings the Council consulted had responded, and it wanted to decide before the start of the academic year so Miss X could plan Y’s return to school.
• Miss X can appeal the decision to name the school to the Tribunal.
• It recognised Miss X’s frustration with communication, but found it had regular email correspondence with her. It gave her details of two SEND officers she could contact by email. It said they would give weekly responses to issues raised. The Council also said it would arrange a meeting between Miss X, the school, and itself to discuss the issues and support.
55. The Council emailed the school on 13 September 2023 confirming it was still best placed to meet Y’s needs. The Council said it hoped to set up a meeting in school with Miss X looking at implementing Y’s EHC Plan, attendance, and whether the school needs any resources.
56. Miss X emailed the Council on 4 November 2023 about Y’s annual review meeting. She explained the problems with the school exposing Y to risk of harm and not meeting his needs, leading to him stopping attending. Miss X did not see the point in attending the annual review meeting with the school.
57. The school contacted Miss X on 4 December 2023 advising it would have to start absence monitoring.
58. The school wrote to Miss X in January 2024 inviting her to a meeting about Y’s attendance. It asked Miss X to bring evidence if there was any reason for Y’s absence. It also warned her about the possibility of a fine.
59. The school sent a further attendance letter in February 2024 when Miss X did not respond.
60. Miss X appealed to the Tribunal in February 2024 about the Council’s decision to name the school in Y’s EHC Plan.
61. The Council was considering prosecuting Miss X in April 2024 over Y’s absence. The Council wanted confirmation from the school that it could still meet need before issuing a penalty notice.
62. The school headteacher emailed the Council on 24 July 2024. They said they emailed the Council a couple of months ago setting out why the school could not meet Y’s needs. They said a new placement was needed for the sake of Y’s education.
63. Miss X spoke to the Council in September 2024. She X complained Y had not been in education for two years and had not had access to therapies in the EHC Plan or suitable education. She said the Council did not complete new assessments as it said it would, and the EHC Plan does not reflect Y’s needs. She also complained about poor communication and conduct of individual Council officers.
64. The Council’s final complaint response, sent 27 September 2024, recognised it had not made best endeavours to support Y, or to meet Y’s needs. The Council said it would broaden consultation with schools, and asked Miss X if there were any schools she would like it to approach. The Council also said it enquired about putting more support and therapies in place. It said an officer was working on this.
65. The Council offered Miss X £4,500 compensation for the issues and distress she faced.
66. The Council also emailed Miss X on 27 September 2024 after discussing alternative provision for Y. It suggested an hour a week OT and at least an hour a week SALT, at a venue in the community.
67. Miss X declined as she was concerned about the small amounts of provision being difficult for Y.
68. The Council conceded the appeal in January 2025, and agreed to name a new school. Y started attending the new school in March 2025.

My investigation

69. Miss X told me the school could not safeguard Y from eating objects. She also said the school never followed Y’s EHC Plan and did not provide the support Y was entitled to.
70. Y stopped attending the school because of safeguarding issues.
71. Miss X confirmed she appealed to the Tribunal for a suitable school to be named. She said the Council agreed to name a school the day before the Tribunal hearing, and had not followed Tribunal orders during the process.
72. The Council told me Y remained on roll at the school until it named the new school. The Council’s view is the school was a suitable placement. It said Miss X chose to no longer send Y to the school and later would not accept its offer of alternative provision.
73. The Council said the officer who decided the school remained suitable and the Council’s section 19 duties were not triggered has left the Council. There is no further information saved on file about the decision.

Analysis

74. The Council has a duty to secure the provision in a child’s EHC Plan. It met its duty in this case when it secured Y a place at the school. The 2022 annual review suggests the provision was working then. In January 2023, Miss X reported the school could no longer meet Y’s needs and was not providing the support in Y’s EHC Plan.
75. We would expect the Council to investigate this promptly and check whether Y’s EHC Plan provision was in place. However, on the evidence seen, the Council was slow to react. I have not seen evidence the Council acted until after it was contacted by the school seeking advice. That was fault. By then, Y had been out of school over a month.
76. The Council’s failure to investigate promptly when Miss X reported concerns about Y’s EHC Plan provision caused avoidable frustration and distress.
77. After learning Y was out of school, the Council consulted with the EP and planned to put one-to-one support in place to enable Y to attend school again. The Council also spoke to the school and considered Y’s annual review paperwork. The Council concluded the school could still meet Y’s needs, meaning it remained suitable and reasonable for Y to access.
78. The Council asked Miss X to provide medical evidence for why Y could not attend school. While medical evidence can show that a child cannot attend school, statutory guidance states councils should consult relevant professionals and take account of all other available information where medical evidence is not readily available. Councils must also consider the individual circumstances of each child and clearly record the reasons for their decisions.
79. I did not find the lack of medical evidence was the sole reason for the Council’s decision. The Council based its decision on input from the school, a relevant professional, and its consideration of the annual review report.
80. Unfortunately, Miss X was not satisfied and refused to send Y back to the school. She still considered the school could not safeguard Y or meet Y’s needs.
81. While I appreciate Miss X strongly disagreed with the Council’s decision, it was a decision the Council was entitled to make after consulting the school, a relevant professional, and offering further support. It is not the Ombudsman’s role to decide whether a school is suitable or can meet a child’s needs.
82. The Council also considered whether it had a duty to provide Y with alternative provision while they remained out of school. As above, the Council spoke with the school and a relevant professional in deciding the school could still meet Y’s needs. It also said it had not seen medical evidence, or a reason Y could not attend.
83. The courts have confirmed it is for the Council to decide whether a child’s health needs prevent them from attending school. The Council took the steps we would expect in reaching its decision. I have not seen evidence Miss X provided any medical evidence or information the Council overlooked.
84. There was therefore no fault in the Council’s decisions about the suitability of the school or refusing alternative provision.
85. Unfortunately, I found the Council’s record keeping on its decision-making was poor. While I saw evidence of who it consulted, what information it considered, and what decision it reached, this was in its email correspondence. I have not seen any case notes recording the Council’s discussions with the school or relevant professionals, or recording its consideration of the annual review report, or the rationale behind its decisions. This is fault.
86. However, I cannot say the fault in the Council’s record keeping undermined its decisions or caused significant injustice. That is because, on the evidence seen, I am satisfied the Council did consider the available evidence and it was entitled to decide the school could meet Y’s needs.
87. The Council issued Y’s final amended EHC plan in early September 2023, about nine months after the review meeting. The Council should have decided whether to amend the plan within four weeks of the review meeting. It should then have issued the final amended plan within a further eight weeks. It took the Council about six months to do this. This was a significant delay and was fault. The delay also meant Miss X’s right of appeal about Y’s placement was delayed.
88. Miss X was unhappy the Council did not get a new OT assessment before the Panel decision in August 2023, and before completing Y’s amended EHC Plan. She did not consider the Panel had all relevant and up-to-date information about Y’s needs. The decision to continue naming the school in Y’s EHC Plan came with a right of appeal to the Tribunal. The Tribunal can consider what reports are needed for an EHC Plan, and consider the placement. It is therefore outside the Ombudsman’s jurisdiction.
89. Miss X appealed the Council’s decision to name the school to the Tribunal.
90. During the appeal, the school later said it could no longer meet Y’s needs. That was after Y had been out of school for over a year. The Council then offered alternative provision. However, Miss X did not feel it was enough, so did not accept. Y therefore continued to receive no education.
91. Mrs X won the appeal, and the Council named a new school in Y’s EHC Plan. However, the courts have determined the Ombudsman cannot investigate a lack of educational provision during the appeal process in cases such as this. That is because the missed education was a direct result of the Council’s decision to name the school in Y’s EHC Plan, and I cannot investigate that decision due to Mrs X’s right of appeal. I also cannot investigate the Council’s offer of alternative provision during the appeals process.
92. Miss X said the Council did not follow Tribunal orders during the appeal and only agreed to name a new school the day before the Tribunal hearing. The courts have decided the Ombudsman cannot investigate council conduct during an appeal, and it is for the Tribunal to oversee the procedure.
93. When responding to Miss X’s complaint, the Council identified its own fault in failing to make ‘best endeavours’ to support Y or meet Y’s needs. It offered Miss X £4,500 in recognition of the distress this caused.
94. I consider the Council’s remedy offer suitably covers the faults and injustice I identified, namely resulting from its initial delay looking into whether Y’s EHC Plan provision was in place, and its delay finalising Y’s amended EHC Plan.
95. I did not see evidence of any fault causing injustice which was not already addressed by the Council’s remedy offer.

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Agreed Action

96. Within four weeks of my final decision, the Council will:
• Review Y’s case and identify areas of learning and improvement for its SEND staff.
• Remind its SEND staff of the importance of keeping clear records of the Council’s decision-making.
97. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

98. I found there was fault causing injustice when the Council delayed investigating Y’s EHC Plan provision and delayed issuing Y’s amended EHC Plan following a review. The Council has offered a suitable remedy for the injustice and will review the case to identify learning. The Council’s decision to name a school in Y’s EHC Plan came with a right of appeal and is outside the Ombudsman’s jurisdiction, as is the education Y missed during the appeals process.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman