Summary: Ms Y complains that failures by the Council caused her child, D, to miss important provision and limited their chances of passing exams. Ms Y says the failures meant she had to deliver provision at home, causing further distress. When she raised concerns, the Council limited Ms Y’s contact because it said she was unreasonably persistent. We find fault in some parts of the complaint which the Council has agreed to remedy with a symbolic payment of £500 and the implementation of some service improvements.

The complaint

1. Ms Y complains the Council failed to comply with the requirements of the SEND Tribunal Order made on 22 November 2023 in relation to her child’s (D’s) EHC plan. As a result, Ms Y says she has been forced against her will to deliver a package of education at home.
2. She says the failures have limited D’s chances of obtaining GCSEs, breached their Human Rights and significantly impacted their welfare as well as causing distress to the wider family.
3. Ms Y also complains about the decision made by the Council to impose restrictions on her contact in line with its ‘Handling Unreasonable and Persistent Behaviour’ policy.

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The Ombudsman’s role and powers

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. 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)
6. 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)
7. 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)

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What I have and have not investigated

8. In line with the Ombudsman’s jurisdiction, and in accordance with our Investigation Manual, I have limited the scope of this investigation. I have exercised discretion to investigate matters from November 2023 (when the Tribunal issued its order) until February 2025 (when Ms Y’s complaint was accepted and passed for LGSCO assessment).
9. Anything which happened before November 2023 is too old for the Ombudsman to consider. I have considered the reasons put forward by Ms Y to explain why she could not complain sooner, such as the restrictions on her contact from November 2023, however I am not persuaded these present good reason for us to exercise our discretion on time.
10. Anything which happened after February 2025 is ‘premature’ for the purposes of this investigation and would need to be raised separately.
11. Furthermore, the Ombudsman has no jurisdiction to consider the following matters:
• Internal school matters and concerns relating to the ability of staff members employed by the school previously attended by D. The Ombudsman has no jurisdiction to investigate internal school matters.
• Breaches of the Human Right Act. While the Ombudsman can consider whether a council has considered its duties under the Act, we cannot say if a breach has occurred; this would be a matter for the courts to determine.

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How I considered this complaint

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

Provision in Education, Health and Care Plans

15. Young people with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the person’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. Councils have a duty to make sure the 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 young person 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)  
17. 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. 

Human Rights

18. The Ombudsman’s remit does not extend to making decisions on whether a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
19. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

What happened

20. This section of the decision statement includes key events relevant to the complaint and our investigation. It is not intended to be a complete chronology.
21. D has special educational needs as set out in their EHC plan. Prior to the matters complained about, D attended a specialist school until July 2023 when the placement came to an end for reasons which are outside the scope of this investigation.
22. Ms Y appealed parts of D’s EHC plan because she said D’s needs would be better met within a different specialist school, which I will refer to from here as ‘the school’. On 14 November 2023 the Tribunal heard Ms Y’s appeal and made its order on 22 November 2023. The relevant parts of the order said the following.
• The Council proposed a package of Education Other than at School (EOTAS) because it felt that the provision in Section F of D's EHC plan could not be made in a school.
• The school agreed with the Council. It said it could not meet D’s needs.
• Ms Y felt: “[The school] has the expertise that [D] requires. [D] has visited the school and felt it was a safe place where [they] would not be bullied. If [D] could be placed there, they do not care what is in the EHCP”.
• The Tribunal felt D needed a “gradual transition into school alongside a package of education at home” which the Council would be responsible for funding. D would start school on a part-time basis with a view to increasing full-time.
• For the Council to arrange an early review of the EHC plan and specifically Section F to “make it clearer and significantly more concise in light of how [D] has managed the transition plan”.
• To name the school in Section I of D’s EHC plan.
23. The Council amended D’s EHC plan on 5 December 2023 to name the school ordered by the Tribunal. The school added D to their roll on 2 January 2024 for D to begin attending from 8 January 2024.
24. The EHC plan also outlined some provision to be funded by a personal budget (PB). The PB agreement dated 21 December 2023 outlined the following:
• GCSE English Tutor for three hours per week
• Counselling for one hour a week
• Health and Fitness Coach for a weekly session
• Music Academy for a weekly session
25. The records show the Council made a payment of £7663.80 in January 2024 to fund the provision listed above for the Spring term.
26. In addition to the provision funded via direct payments, D’s EHC plan also contained the following to be sourced and provided by the Council:
• GCSE Maths tuition at home for three hours each week.
• GCSE Science tuition at home for three hours each week.
• Three hours per week home tutoring in one further GCSE subject of D’s choice
• Education Mentor for 15 hours each week.
27. From the end of February 2024 D received 1:1 mentoring support.
28. The records show that Ms Y raised concerns regularly with both D’s school and the Council about the provision. She said the school was not meeting D’s complex needs and as a result, D was attending very infrequently and often only for Art lessons. Ms Y said that the school’s inability to meet D’s needs presented a serious safeguarding risk.
29. On 18 October 2024 the Council met following a Child in Need (CiN) assessment completed by the Children with Disabilities team after Ms Y made a referral asking for more support for D. Two of the agreed actions were to confirm D’s exam arrangements and to bring forward the annual review of D’s EHC plan.
30. When Ms Y felt the school and the Council were not doing enough to ensure D received the provision they needed, she complained to the Department for Education (DfE). The DfE responded to Ms Y in October 2024 and directed her to the LGSCO. However, as Ms Y had not received a final complaint response from the Council, we referred her premature complaint back to the Council for consideration.
31. The Council agreed a statement of complaint with Ms Y, which it considered and responded to at stage one of the complaints procedure on 1 November 2024. In summary it said:
• In response to Ms Y’s complaint that the Council failed to direct the school to accept D, it said there had been several meetings with the school and Ms Y had said she did not want D to increase their attendance. Instead, the Council said Ms Y wanted D to focus on studying Art.
• D has been attending school for Art lessons only. Lessons delivered at home have worked better for D and the Council has recently agreed a request to change the allocated tutor.
• There have been discussions about exam access arrangements for D. The Council will continue to look for a suitable exam venue.
32. Dissatisfied with the response, Ms Y made a complaint at the second and final stage of the Council’s procedure. The Council responded on 6 February 2025. In summary the complaint response included the following key points.
• The school allocated to D, as ordered by the Tribunal, has staff suitably qualified to deliver the support D needs. The Council also arranged for the school to allocate 1:1 support for D. The Council maintains the provision made available for D was in accordance with their EHC plan. The Council said the decision to remove D from school was a choice made by Ms Y to electively home educate (EHE). If Ms Y wants D to return to school, the Council would be happy to support.
• The Council said the onus is on parents to provide a suitable education and prepare for exams when EHE. The Council has worked alongside the school to ensure that D can continue to access Art lessons until their exam in April 2025.
• The choice of school in Section I of the EHC plan was directed by the Tribunal, not decided by the Council.
• D’s EHC plan includes mentoring for 15 hours per week. Originally, those hours were to be split between home and school but on advice from Ms Y, the mentor supported D in school only. As D has not attended school regularly, the mentor has been unable to complete their full 15 hours. In June 2024 Ms Y asked for the mentor to deliver support at home and the Council agreed to consider this request. The Council says it should have been clear that the 15 hours were to be split between home or school.
• Ms Y had continued to demonstrate some of the same behaviours which prompted the Council’s decision to impose contact restrictions in November 2023. The Council issued a further warning letter about this on 3 February 2025.
• The Council does not consider it has breached D’s Human Rights. D was enrolled at a school which the Council said Ms Y has since removed them from. If Ms Y has concerns about the adequacy of the provision in D’s EHC plan, then the correct route would be to appeal the disputed parts of the plan.
33. D remained on the roll of the school until they finished Year 11.

Was there fault causing injustice to Ms Y and D?

D’s education and compliance with the Tribunal’s order

34. For the reasons which I will outline below, I do not find fault in the following parts of Ms Y’s complaint.
• When the SEND Tribunal issues its decision naming a school, councils must amend the EHC plan to include that school within 14 days of the Tribunal’s order, as required by the SEND Regulation 44(2)(e). The Council must then arrange the specified provision and placement as soon as practicable, usually by the start of the next school term. In D’s case, the Council complied with the statutory timescales by arranging the provision in accordance with the order.
• As D was not attending the school regularly, it was not possible to sit exams there. As an alternative, the records show the Council arranged for D to take their exams at home overseen by an appropriately trained Invigilator from the tutoring company. I am therefore satisfied the Council made appropriate arrangements to facilitate D’s exams.
• The Council decided in December 2024 not to progress Ms Y’s safeguarding concerns to a formal investigation. The law and guidance allow councils to make professional judgements. If the available information does not indicate harm or a risk of harm, the Council may decide that no further action is required. This decision is a recognised outcome within the safeguarding process and involves the exercise of professional judgement, rather than a requirement to progress every referral to formal investigation. Furthermore, Ms Y’s referral to a Local Authority Designated Officer (LADO) was made to a neighbouring authority where the school is situated. I understand Ms Y has raised a separate complaint about the neighbouring authority.
• While the Ombudsman cannot say if a Council has breached an individual’s Human Rights, we can take a view on whether the Council had due regard to their rights when making decisions which engaged those rights. Based on the evidence seen, it is my view that the Council had regard to D’s right to education by making a place available at Ms Y’s preferred school. D’s inability to access that school was not caused by any failure by the Council to have regard to their Human Rights.
35. I find fault with the following parts of Ms Y’s complaint.
• Some of the Council’s complaint response was incorrect because Ms Y did not remove D from school with a plan to EHE. The Council has since acknowledged this error. I consider the complaint response was misleading and caused confusion and frustration for Ms Y.
• There was some delay in the appointment of a learning mentor to support D’s transition into the school. The Council explains the delay arose because it was looking for a mentor to split their time between home and school, as D was not attending school full time. However, Ms Y said that having the mentor at home could distress D. The Council agreed at the end of February 2024 for the mentor to support D in school only. There was approximately six weeks between the start of the school term and the appointment of the mentor.
• There was some delay in the appointment of tutors to support D at home with Maths and Science work.
• Once the Council received notification that D was not attending school, and the school said that it could not meet all of D’s needs, the Council should have arranged a review of the EHC plan. This is also in line with the Tribunal’s order, which said: “we would also suggest that an early review of the EHCP be arranged in order to consider amendments to the EHCP”.
36. I have considered the injustice experienced by Ms Y and D because of the fault identified above. The Tribunal judge noted that Section F of D’s EHC plan was neither clear nor concise. Rather than amending Section F directly, the Tribunal asked the Council to carry out an early review of the plan, recognising that the provision needed to be set out in ‘significantly’ more concise terms. This reflected the Tribunal’s view that the wording of Section F would depend on how successfully D transitioned back into school.
37. It is also important to note the Tribunal did not expect D to attend school full-time. As a result, D could not access all elements of the provision as written. This was not fault but a reflection of D’s circumstances and their need for gradual reintegration.
38. In a further complaint to the Council on 10 July 2025, Ms Y also acknowledged that D had been too unwell to attend school. Ms Y said D’s inability to attend was due to a lack of specialised provision and failures by the school, however the LGSCO cannot make a causal link between the adequacy of educational provision and a young person’s health.
39. In light of D’s inability to attend school on a full-time basis, and the Tribunal’s finding that Section F required amendment, I do not consider that the fault directly resulted in D missing provision. In my view, the appropriate course of action, consistent with the Tribunal’s findings, would have been to carry out an early review to ensure that Section F was clear, specific, and aligned with the provision that D could realistically access.
40. The Council did not take these steps, and the EHC plan remained in place despite the noted concerns about its conciseness and clarity. This is fault. As a result of the Council failing to review the plan, there was injustice in the form of uncertainty about what provision D should have received during that period.
41. I have also considered whether the delay in appointing D’s learning mentor and subject tutors caused injustice. In an email dated 5 January 2024, Ms Y explained that D found it difficult to engage with providers in the home, stating that “home is not for education,” and that D wished to explore options that excluded further teachers, mentors, or providers visiting the home. On 9 April 2024, Ms Y also advised that studying Maths and Science acted as a “stress trigger” for D and could lead to shutdowns. Because of these factors, I consider that D’s ability to engage with a mentor or tutors at home was limited. I have therefore recommended a symbolic payment to recognise the distress caused by the delays, rather than a remedy for missed provision.

Management of Ms Y’s contact with the Council

42. The Council’s policy for ‘Handling Unreasonably Persistent Complainants and Complainants displaying Unacceptable Behaviour’ describes unreasonable persistent complainants as those “who, due to the frequency of nature of their contact with the Council, cause or are likely to cause, excessive and disproportionate demands upon staff…”. This includes behaviours such as “having an excessive number of contacts with County Council staff and/or Members while a complaint is being looked into such as “lengthy or frequent correspondence”.
43. When deciding whether to make contact restrictions, the policy says the Council should follow these steps:
• Step 1 – provide a warning to outline that, if their actions continue, the Council may decide to treat the person as unreasonably persistent. The warning letter should explain why. If the person resumes or repeats their actions, the Council will consider whether to issue a reminder or move to the next step(s).
• Step 2 – impose contact restrictions which are appropriate and proportionate to the nature and frequency of the behaviour. The policy outlines several options, one of which is to “withdraw or restrict contact with the complainant, either in person, by phone or letter/email or any combination of these. One form of contact must always be maintained with the complainant…”
44. If the Council decides to move to Step 2, the policy says the person should receive notification in writing. The letter must include:
• Confirmation of the decision taken and the reasons for it.
• What this means for their contact with the Council.
• How long any restrictions will last.
• Their right to ask the LGSCO to consider the Council’s decision.
45. After imposing contact restrictions, the Council should have a plan in place to review the decision and consider withdrawing the restrictions if the person demonstrates a “more reasonable approach”.
46. In Ms Y’s case, the Council took the following steps.
• On 3 November 2023 the Council wrote to Ms Y to say she “presented a persistent pattern of behaviour which is not reduced by the Council’s best efforts to engage with you at an appropriate and proportionate level”. The Council asked Ms Y to direct any emails “intended for operational or legal staff” to a single named officer. The letter explained that correspondence sent to others would not be acknowledged but forwarded to the named officer.
• On 3 February 2025 the Council wrote to Ms Y to express its view that she had continued to contact the Council in an unreasonably persistent way, despite the previous warning. The letter explained how the Council had come to this view and which parts of the policy it had relied upon. The Council confirmed it would continue to monitor Ms Y’s contact before deciding whether to impose any further restrictions.
47. The Council’s procedure for managing unreasonably persistent complainants is a clear two-step process. Step 1 is a clear warning to the complainant, explaining which behaviours are problematic and that restrictions may follow if the behaviour continues. Step 2 allows the Council to impose restrictions, such as limiting contact to a single officer, but only after the warning has been given and the behaviour persists.
48. In this case, the Council’s letter to Ms Y on 3 November 2023 stated that she had a persistent pattern of behaviour, explained the relevant policy sections, and directed her to send all emails to a named officer, indicating that correspondence to other staff would not be acknowledged. By appointing a single point of contact immediately, the Council skipped the warning stage, which is a required before the implementation of Step 2 restrictions. Therefore, the Council did not follow its own policy. This is fault.
49. On the balance of probabilities and having considered the available correspondence between Ms Y and the Council, it is my view that Ms Y would have likely maintained a similar level of email contact even if the Council’s contact restrictions had been correctly applied. As such, the personal injustice caused by the Council’s fault is limited. The Council will, however, implement the remedial actions we have recommended.

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Action

50. Within four weeks of our final decision, the Council will implement the following actions:
• Apologise to Ms Y for the frustration caused by the errors in the complaint response and further for the failure to issue a written warning before imposing a single point of contact.
• The Council will also apologise to Ms Y and D for distress caused by the delay in appointing the learning mentor and further for the uncertainty caused by the failure to arrange an early annual review as asked for by the Tribunal. 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 I have recommended in my findings.
• If contact restrictions remain in place, the Council should write to Ms Y to confirm how long those restrictions will remain and when they will be reviewed. The Council will also share with us the plan to review any ongoing contact restrictions.
• Make a total payment of £500 to Ms Y. This is symbolic payment for the distress and uncertainty caused by the fault we have identified in this statement.
51. Within six weeks of our final decision the Council will also:
• Remind relevant officers of the need to issue written warning letters before imposing contact restrictions for those considered to be unreasonably persistent and/or displaying unreasonable behaviour. This is in line with the Council’s own published policy.
52. The Council will provide us with evidence it has complied with the above actions.

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Decision

53. I find fault causing injustice which the Council has agreed to remedy with the actions listed above.

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Investigator's decision on behalf of the Ombudsman