Summary: Mrs D complained the Council failed to provide her children with education or with the special educational needs support set out in their education, health and care plans. I have discontinued my investigation into one part of the complaint. We found fault in the other part. The Council has agreed to apologise and make a payment to remedy the loss of education and SEND provision for one of her sons.

The complaint

1. Mrs D complained the Council failed to provide her children, J and M, with education or with the special educational needs support set out in their education, health and care plans. Mrs D says this has caused them to miss out on education and caused her significant distress affecting her mental health.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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.
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. 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)
8. 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)
9. 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

10. In relation to J, I have investigated the period from September 2023 to September 2024. J stopped attending school in April 2023; Mrs D complained to us in August 2024 so the period from April to July 2023 is a late complaint, as set out in paragraph 4.
11. I intend to discontinue our investigation into provision for M. As Mrs D appealed the February 2022 EHC plan which named the school M then stopped attending, my view is that this complaint is out of our jurisdiction, as set out in paragraph 6.

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How I considered this complaint

12. I spoke to Mrs D about her complaint and considered the information she sent, the Council’s response to my enquiries and the SEND Code of Practice.
13. Mrs D and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

14. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
15. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. Within four weeks of an annual review meeting, the council must issue its decision to amend, maintain or discontinue the EHC Plan.
16. Where the council proposes to amend an EHC Plan, 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. 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 (i.e. 12 weeks after the review meeting).
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.

The Ombudsman’s jurisdiction in relation to SEND

18. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
19. The courts have established that if someone has appealed to the SEND 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)
20. 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. This applies even though the SEND Tribunal cannot remedy any past injustice.
21. 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.
22. 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 the provision of alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.
23. 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).

Alternative provision

24. 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 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).
25. 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, and whatever type of school they attend. (Statutory guidance ‘Alternative Provision’, January 2013)
26. 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)
27. If a council decides alternative provision must be made, there is no statutory requirement as to when it should begin for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.

What happened and my findings

28. I have considered each child separately. I have set out the key events. This is not meant to detail everything that happened.

Provision for M: what happened

29. M has special educational needs and was attending a mainstream primary school (School A). The Council issued a final EHC plan for M in February 2022. It named School A until July and School B from September.
30. Mrs D appealed to the SEND Tribunal in May about School B, and about M’s SEND needs and provision. Mrs D said School B had said it could not meet M’s needs.
31. The Council agreed to arrange a placement assessment at School C but the trial was unsuccessful and ended in October 2022. The Council started looking for other placements. The appeal was adjourned until a placement was found.
32. In February 2023, the Council agreed to provide some alternative provision. In August, it agreed to provide online provision and sensory provision. This started in January 2024.
33. Mrs D complained to the Council in January 2024 that M had been out of school since October 2022 and the Council had failed to secure appropriate education provision.
34. The Council issued its final complaint response in May. It said it had been trying to find a placement and had consulted many schools. M had had home visits and learning materials from school. There had been a delay in starting the online education from October 2023 to January 2024 due to capacity issues.
35. In September 2024, the Tribunal reinstated the appeal as there had been no order concluding it. There was a hearing in February 2025.

Provision for M: My findings

36. I intend to discontinue my investigation. This is because I consider that M is not attending a school for reasons related to a disagreement about School B being named in the EHC plan. Mrs D has appealed to the Tribunal about this which puts it out of our jurisdiction, as set out in paragraphs 6 and 19-21.

Provision for J: what happened

37. J has special educational needs and was attending a mainstream primary school (School A). There was an annual review of his EHC plan in April 2023. Mrs D says the school said it could not meet his needs. J stopped attending.
38. In July the Council agreed to amend the EHC plan and on 23 August its panel approved online tutoring and a specialist placement as alternative provision.
39. The Council issued a final EHC plan on 26 October. The plan named School A. Mrs D did not appeal the plan but she said School A had said it could not meet J’s needs. The Council started consulting with other schools.
40. Mrs D wrote to her MP in November and said J was unable to access the online education that had been provided. The Council then agreed to some OT provision, which started in January 2024. The specialist placement started in February as the online learning had not been suitable.
41. Mrs D complained to the Council in January 2024 that J had been out of school since May 2023 and the Council had failed to secure appropriate education provision.
42. There were meetings with Mrs D and I note the Council’s efforts to identify suitable provision. School D, a special school, offered J a place to start in September. The Council issued a new final EHC plan in February naming School D.
43. The Council’s response to Mrs D’s complaint said it had been searching for a placement and alternative provision had been put in place in the meantime, although it accepted there had been some delay until February 2024. An additional new alternative provision of home tuition was agreed in May, which started in June. There was an annual review in July.

Provision for J: My findings

44. After J stopped attending school, the Council agreed in August 2023 to put some alternative provision in place in the form of online learning and a specialist placement. I have seen no evidence of fault in the way the Council decided this.
45. J was unable to access the online learning, so was to use the specialist placement but this did not start until February 2024. The Council has accepted this was a delay, which is fault. Once it was clear the online provision was not suitable by November 2023, the alternative should have been put in place. So I find there was a delay of three months (about one term).
46. A new final EHC plan was issued in October 2023. This was 14 weeks late as case law says amended final plans should be issued within 12 weeks of an annual review so, in this case, by July 2023. The delay is fault.
47. Mrs D chose not to appeal to Tribunal. I consider it was reasonable for her not to do so as the Council had already agreed to look for a new placement to the one named in the plan and was putting alternative provision in place. As it was reasonable to not appeal, the provision from October 2023 to February 2024 is within our jurisdiction.
48. I realise Mrs D does not consider it was adequate but I have seen no fault in the way the Council decided what to put in place. I therefore cannot find it was unsuitable. However, as J was out of school, he was not accessing his full SEND provision as set out in the October 2023 EHC plan. This is fault as the Council must secure that provision.
49. The Council should have held an interim review of the EHC plan. This was not done as J was not in school. But this was fault as it is the Council’s responsibility to ensure a review is held if a child is not in school. However, there were meetings with Mrs D to discuss J’s provision and the Council was consulting with schools.
50. An amended final EHC plan was then issued in February 2024. This named a special school, so I consider it was reasonable for Mrs D not to appeal. Therefore the provision made from February 2024 to July 2024 is within our jurisdiction.
51. I have seen no evidence of fault in the way Council decided what to provide but, as before, J did not receive his full SEN provision as set out in the February 2024 EHC plan, which is fault.

Did the fault cause injustice?

52. In summary, I have found:
1. There was a delay of about one term (November 2023 to February 2024) in providing the specialist placement. This caused J to miss out on education.
2. The October EHC plan was issued 14 weeks late, which delayed Mrs D’s appeal rights. Although she then decided not to appeal, which reduces the injustice caused.
3. There was no interim review of the EHC plan in the autumn term 2023/24. This caused some frustration and distress to Mrs D as she did not know what the plan was for J’s education, but there were meetings with her and a new EHC plan was issued in February 2024, which reduces the injustice.
4. The Council failed to secure J’s full SEND provision as set out in his October 2023 or February 2024 EHC plans. This meant J missed out on that provision from October 2023 to July 2024 (three terms).
53. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
54. Our guidance on remedies says that where fault has resulted in a loss of educational provision or SEND provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. This can be used for J’s educational benefit now.
55. I consider a total of £2,400 to be an appropriate amount. This is broken down as £1,400 for one term of missed education and SEND provision (November 2023 to February 2024) and £1,000 for two terms of missed SEND provision (February to July 2024). In determining this amount, I have taken into account that it was unlikely J would have been unable to access a full-time education but also that the period concerned was a significant one for his school career as he was transferring to secondary school.

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Action

56. Within a month of my final decision, the Council has agreed to apologise to Mrs D and pay her £2,400 to remedy the loss of education and SEND provision for J, as set out above.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman