Summary: The Council failed to secure the special educational needs provision in Mrs X’s child, Y’s, Education, Health and Care Plan following a Tribunal order in March 2024. It also failed to respond to Mrs X’s complaint. This caused Mrs X distress, frustration and uncertainty and meant Y missed out on the provision in their Plan. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained the Council failed to secure the SEN provision in her child, Y’s, Education, Health and Care Plan. She says this has caused her and Y distress and frustration and Y has missed out on their education. She wants the Council to apologise and compensate her.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. 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)
6. Part of Mrs X’s complaint is late because it concerns council actions that happened more than 12 months before she complained to us.
7. Y stopped attending school in October 2022. Mrs X did not complain to the Ombudsman until July 2024. Mrs X says she did not complain sooner as she believed the Council was trying to resolve the issue. However, Mrs X also says the Council failed to respond to emails during this time and she didn’t know what was happening. It was open to Mrs X to complain to us sooner about events from October 2022 and it was reasonable for her to have done so.
8. While we can investigate events up to 12 months before Mrs X complained to us, I am unable to investigate all of this period. 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)
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 educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
11. 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.
12. The Council issued an amended final EHC Plan for Y in March 2023. The Council named school A in the amended Plan. Mrs X appealed the school and provision in that plan to the SEND Tribunal in April 2023. The Tribunal ordered the Council to issue an amended EHC Plan naming school B, in March 2024. Mrs X’s appeal was connected to her complaint about the Council’s failure to deliver Y’s SEN provision. I cannot investigate events between March 2023 and March 2024. I have investigated events from March 2024 when the Tribunal issued its order.

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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 have 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

Education, Health and Care (EHC) 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. 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).

What happened

17. In March 2024 the Tribunal ordered the Council to amend Y’s EHC Plan and confirm a start date with school B. The transition to school B was delayed as school B asked to meet with the Council beforehand. School B said it could not meet the Council until May 2024.
18. In April 2024, Y’s tutor who had been delivering one hour a day of tutoring left the role. The Council says Mrs X declined a replacement as Y was due to transition to school B soon. In early May 2024 the Council told school B it must give Y a start date and begin their transition. The Council met with school B and agreed a full transition plan. The plan was to build up attendance from May onwards. The Council issued a final amended EHC Plan naming school B on 13 May 2024.
19. In July 2024 Mrs X complained to the Council. She said it had failed to provide Y with an education for two years. In its response the Council explained Mrs X’s complaint was linked to her appeal to the Tribunal. It asked Mrs X if she wanted to complain about its implementation of the March 2024 Tribunal order. Mrs X was unhappy with this response and complained to the Ombudsman.
20. Y started a full-time timetable at school B from September 2024. In October 2024 the Council told the Ombudsman it would respond to Mrs X’s complaint. Mrs X returned to the Ombudsman in 2025 as she still had not received a complaint response. In response to our enquiries the Council accepted it had failed to respond to Mrs X’s complaint and failed to secure the SEN provision in Y’s EHC Plan following the Tribunal order in March 2024. It offered Mrs X £1,800 to recognise the impact of its failings.

My findings

21. The Council accepts it failed to secure the provision in Y’s EHC Plan and failed to respond to Mrs X’s complaint. This was fault. This caused Mrs X distress, frustration and uncertainty and meant Y missed out on the provision in their EHC Plan.
22. We typically recommend between £900 and £2,400 per term in recognition of lost provision and education. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss. Y missed out on just over one term of special educational provision.
23. Considering Y’s transition to school B began in May 2024 I am satisfied with the Council’s offer of £1,800. This also reflects the fact Y is now receiving the provision in the EHC Plan which can begin to remedy some of the lost provision going forward.

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Action

24. Within one month of the final decision the Council has agreed to:
1. Apologise to Mrs X for its failure to secure the provision in Y’s EHC Plan and respond to her complaint. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
2. Pay Mrs X £1,800 to recognise the loss of provision.
3. Pay Mrs X £200 to recognise the uncertainty caused by its failure to respond to her complaint.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I find fault causing injustice, which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman