Summary: The Council was at fault for failing to secure the full special educational provision in Mrs X’s daughter, Y’s, Education, Health and Care (EHC) Plan. It was also at fault for delay in completing a review of Y’s EHC Plan. The faults caused Mrs X upset, frustration and uncertainty and meant Y missed out on some provision. To remedy their injustice, the Council will apologise to Mrs X and Y and pay Mrs X a total of £1000.

The complaint

1. Mrs X complained the Council failed to secure the special educational provision in her daughter, Y’s, Education, Health and Care (EHC) Plan since her equine based alternative provision stopped in November 2023. Specifically, Mrs X said Y missed out on:

• Therapy;
• Use of strategies and approaches to develop her social, emotional and mental health skills;
• Speech and Language Therapy; and
• Use of interventions and approaches to help Y prepare for adulthood.

2. Mrs X also complained the Council delayed carrying out a review of Y’s EHC Plan. She said the faults impacted on Y’s education and development, and put pressure on her.

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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. 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.
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(i), 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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How I considered this complaint

7. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Mrs 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

Relevant law and guidance

Education, Health and Care Plans

9. 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 SEND Tribunal or the council can do this. 
10. The EHC Plan sections include: 

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

Special educational provision

11. 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)  
12. 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. This should include having systems in place to quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Annual reviews

13. 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.
14. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This is called a phase transfer review. It allows planning for and, where necessary, commissioning of support and provision at the new institution.
15. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

What happened

16. This section sets out the key events in this case and is not intended to be a detailed chronology.
17. Y stopped being of compulsory school age in July 2022 but in the 2023/2024 school year, she was in year 11. The Council issued an EHC Plan for Y in April 2023. The Plan named a special school for Y to attend as a post-16 placement.
18. By June 2023, Y had left the special school and received an Education Otherwise Than at School (EOTAS) package instead. EOTAS is a form of education where the child or young person has a package of education provided outside of a school setting. Y attended a therapeutic farm.
19. In early November 2023, Y’s placement at the farm stopped suddenly.
20. The Council issued an amended EHC Plan for Y in late November. The Plan stated Y would have EOTAS. The special educational provision in the Plan included:

• A highly personalised curriculum;
• Statements lifted from an Educational Psychology report. This included “EP REPORT 2022, notes access to therapeutic interventions, this is currently through CAMHS” and “therapeutic support for Y to explore and address self-perception, low mood, anxiety, and social relationships”.
• Strategies for staff to use to help Y manage her emotions and develop her social skills. This included support from people like mentors and buddies to help Y develop relationships as well as planned time in smaller groups “when an appropriate peer group has been established”. It also included a bespoke self-esteem building programme.
• Use of strategies recommended by a speech and language therapist (SALT) who had assessed Y to help her communicate and interact with others. This was less provision than in the April 2023 Plan, which included that Y would have direct sessions with a SALT.
• Interventions to help Y identify what she wanted to do in the future and what skills she needed to achieve those goals; and
• Work experience in Y’s chosen field.

21. The Council identified another animal based therapeutic provider to support Y. Mrs X said that provider was not suitable for Y. The Council offered online learning but Mrs X said it would not work for Y. Mrs X said she wanted Y to attend a small school which focused on functional skills so the Council began consulting with schools.
22. At the end of the month, the Council held Y’s annual review meeting. During the meeting, the Council asked Mrs X to consider allowing Y to receive online tuition, attend a third animal based therapeutic provider, or a particular provider which focused on developing a student’s skills ready for employment. The meeting ran out of time, so the Council held another meeting in mid-December. It decided to amend Y’s EHC Plan.
23. In early February 2024, the Council told Mrs X it had found a tutor who could teach Y at a local library or children’s centre. Mrs X responded to say Y could not cope with tuition at home, online or in a library. She said Y had tried those approaches in the past without success and she did not want to risk them again. She said she wanted a bespoke package for Y, while the Council looked for a new school. She asked the Council to arrange for Y to have SALT at home.
24. In late May 2024, the Council issued Y’s amended EHC Plan, which left section I blank. It noted Y would instead receive EOTAS. Mrs X appealed to the SEND Tribunal. She wanted to change the description of Y’s needs, the special educational provision, the health provision and have her preferred school, school A, named.
25. In late September, Y began attending school A. She joined the class three weeks after the start of term.
26. The SEND Tribunal made its decision on Mrs X’s appeal in early November 2024. It agreed changes to the sections on Y’s needs, special educational provision and school named in the Plan. It directed the Council to name school A.
27. In response to my enquiries, the Council said it felt in-person tuition personalised to Y’s needs could have worked as a temporary solution, while it found her a new school. It had tried to work with Mrs X to find a suitable provider but she did not agree any providers it identified were suitable.

Therapy

28. By November 2023, Y had been a patient at CAMHS for ten months. CAMHS had offered Y several types of therapy which she had declined.
29. At the end of February 2024, Mrs X told the Council Y had been unable to access therapy from CAMHS. She said CAMHS had recommended a local mental health charity which she thought was the only viable solution for Y.
30. In early March, CAMHS talked to Mrs X about referring Y for therapy from the NHS mental health service for adults. It also discussed arranging for Y to have six weeks of talking therapy from CAMHS. Mrs X said she did not think that would be appropriate for Y. At the same time, the Council told her it was looking into commissioning Y’s therapy.
31. Records show that as of late March, Y was on the waitlist for twelve sessions with the local charity. Y began therapy with the charity in early 2025.

Findings

What I have and have not investigated

32. The law says we cannot investigate a complaint when someone has used a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended). This includes the SEND Tribunal. 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)
33. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the educational placement in the EHC Plan, we cannot investigate a lack of alternative educational provision. The period we cannot investigate starts from the date the council makes the appealable decision and ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
34. 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). 
35. The Council issued Y’s EHC Plan in May 2024 and stated Y would receive EOTAS. Mrs X did not agree EOTAS was suitable for Y and was not happy with the special educational provision because it was worded for delivery in a school setting instead of EOTAS. Mrs X appealed to the SEND Tribunal, to have it name school A instead. In the meantime, any missing special educational provision likely occurred as a consequence of Mrs X’s disagreement about the Council stating EOTAS in Y’s EHC Plan. Therefore, I cannot investigate Mrs X’s complaint about a loss of special educational provision from May 2024 until September 2024, when the appeal was concluded, except in relation to the therapy. That is because the therapy was always intended to be delivered outside of an educational setting. Mrs X’s disagreement about EOTAS did not affect whether or how that therapy would be delivered so the restrictions in this section do not apply.
36. My investigation therefore covers the period between November 2023 and May 2024 except the therapy. In relation to that therapy, I have investigated from November 2023 to July 2024, when Mrs X received the Council’s final response to her complaint.

Phase transfer review

37. 2023/2024 was a phase transfer year for Y. This means that to comply with the timescales for reviewing Y’s EHC Plan before she moved from secondary school to a post-16 setting, the Council needed to carry out the annual review and issue Y’s amended EHC Plan by 31 March 2024 at the latest. The Council issued Y’s EHC Plan eight weeks late, which was fault.
38. This fault caused Mrs X frustration and delayed her right to appeal to the SEND Tribunal; a right which she then used. On balance, had the Council issued the final EHC Plan when it should have, Mrs X would have been able to appeal sooner which would have meant Y could have attended school A from the start of the school year in early September 2024. The fault meant Y missed out on three week’s education at school A.

Tuition

39. Although Y had not yet moved to a post-16 setting during the period I have investigated, she had stopped being of compulsory school age in 2022. This means there was no duty on the Council to arrange alternative provision when Y stopped attending the equine therapy in November 2023. However, the Council did still owe Y the duty to secure the special educational provision in her EHC Plan. The Council originally met this duty by funding Y’s space at the equine therapy.
40. After Y stopped attending in November 2023, the Council accepted it had no longer secured the special educational provision in Y’s Plan and began looking for alternative education providers which could provide the special educational provision in Y’s EHC Plan. Between November 2023 and February 2024, it offered Mrs X two animal-based providers, a skills-based provider and tuition at home or in a library. Mrs X declined those offers as she felt they were unsuitable. The Council told me it felt in-person tuition personalised to Y’s needs could have worked as a temporary solution, while it found her new school. This would have secured much of the provision in Y’s Plan, including:

• The highly personalised curriculum;
• Strategies to help Y manage her emotions and develop her social skills;
• Strategies to help Y communicate and interact with others; and
• Interventions to help Y decide what she wanted to do in the future.

41. After Mrs X declined for Y to have tuition in a library or children’s centre in February 2024, the Council took no further action (between February and May 2024) to arrange education for Y while it was finding her a new school. If the Council considered in-person tuition was accessible to Y, it should have told Mrs X that it had made a suitable offer to secure the special educational provision in Y’s EHC Plan and would not be exploring other options. This would have allowed Mrs X to make an informed decision about whether Y should try the tuition. The Council’s failure to communicate with Mrs X was fault. This caused her uncertainty about what the Council was going to do about Y’s education while it was looking for a school place.

SALT

42. Mrs X asked the Council to arrange for Y to have SALT at home. However, unlike the April 2023 EHC Plan, the November Plan did not include that Y should have direct sessions with a SALT. It only included that teaching staff should use strategies the SALT had suggested. As set out above, that could have been delivered through tuition. The Council was not at fault in not arranging SALT at Y’s home.

Work experience

43. Y’s November 2023 EHC Plan included that the Council should arrange work experience in Y’s chosen field. The Council did not speak to Y about what work experience she wanted to do or arrange any work experience for her. This was fault and caused Mrs X frustration. On balance, Y would have likely engaged with work experience had it been arranged so the fault meant Y missed out on some special educational provision she should have had between November 2023 and May 2024.

Therapy

44. By February 2024, the Council heard Y was not receiving the therapy in section F of her EHC Plan because Y had declined all the therapy CAMHS had offered. The Council decided in early March that it needed to arrange therapy, as evidenced by the fact it told Mrs X it was looking at commissioning the therapy directly. However, there is no evidence to show why the Council decided not to take any further action. While Y joined the charity’s waitlist at the end of March, the therapy did not begin until early 2025. The Council was at fault for failing to arrange for Y to have the therapy in her EHC Plan between February and July 2024, the end of the period I am investigating. The fault caused Mrs X avoidable frustration and upset but I cannot say, even on balance, that had the Council not been at fault, Y would have had therapy. That is because she was unable to engage with the different forms of therapy offered by CAMHS.

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Action

45. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the upset, frustration and uncertainty she felt because of the faults set out in this decision. 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 the apology.
2. Pay Mrs X £400 in recognition of her injustice.
3. Pay Mrs X £600 in recognition of Y’s injustice.
46. The Council will provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman