Summary: We found fault on Miss Y’s complaint against the Council about it failing to monitor her son’s provision in his Education, Health and Care plan while out of school. It failed to show when it actioned the need for an Occupational Therapist assessment. It also failed to deal with her complaints as required by its complaints procedure. The Council agreed to make a symbolic payment to her, send an apology, ensure proper records are kept, carry out a review, and remind officers about the need to respond fully to our enquiries. There was no fault on her complaint about it failing to provide appropriate education.

The complaint

1. Miss Y complains about the Council failing to provide:
1. appropriate education for her son, Z, who has an Education, Health and Care plan;
2. provision set out in his plan;
3. occupational therapy for him; and
4. proper responses and communication under its complaints procedure to her formal complaints.
2. As a result, this has placed her under a great deal of stress, impacted on her job security and finances, and means her son is not attending school, is socially isolated, and lost educational provision and provision under his plan.

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The Ombudsman’s role and powers

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. 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)
5. 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)
6. 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.
7. 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

8. Miss Y used her right of appeal to the Tribunal about the Council naming Z’s school in his Education, Health and Care plan (section I) and provision set out in it about special education needs (section B) as well as special education provision (section F). The law prevents me from investigating any complaint she may have about these because of her right of appeal to the Tribunal which she used.

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How I considered this complaint

9. I considered evidence provided by Miss Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Miss Y and the Council. I considered their responses.

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What I found

Education, Health and Care plans

10. A child with special educational needs may have an Education, Health and Care plan (EHC plan). This 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 education or name a different school. Only the Tribunal can do this.
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 show 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. 

13. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s Special Educational Needs (SEN), the special educational provision specified, the school or placement, or that no school or other placement is specified in their EHC plan.
14. The courts decided if someone has appealed to the Tribunal, 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)
15. This means 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.
16. 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: 

• delays in the process before an appeal right started;
• support in an EHC plan that is not being delivered to the child or young person, and we decide the cause is not connected to an appeal that has, or should have, happened; and
• 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.  

Alternative provision

17. Section 19 of the Education Act 1996 says councils must arrange suitable alternative educational provision when it finds a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
18. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
19. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
20. If a council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
21. If a child has an EHC plan, the council also has an ongoing duty to arrange the support guaranteed by it. This might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
22. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.
23. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: ‘Supporting children out of school’ (October 2025).
24. Our guidance says councils should:

• consider all the reasons for a child’s absence from school and make a written evidence-based decision about whether or not it will arrange alternative education provision.
• as a matter of good practice, it should communicate this decision to parents. Where a council decides not to arrange alternative education, it should tell parents the expectations about school attendance, and the potential consequences for continued absences.
• where it decides to arrange alternative education, it must ensure the provision meets the individual needs of the child. As a matter of good practice, it should explain its reasons for providing a part-time education if it decides the child cannot cope with full-time provision.
• keep all cases of part-time education under review with a view to increasing when the child is able:
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary:
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) to ensure issues are dealt with promptly by the right people, and any complaints are identified and responded to under the relevant policy.

25. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Councils should retain oversight and control to ensure their duties are properly fulfilled.
26. The Department for Education guidance (‘Working together to improve school attendance’) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances, there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education, and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

What happened

27. Miss Y’s eleven year old son, Z, has an EHC plan. She complained he missed more than a year of education at school and provision set out in his EHC plan was not made. Miss Y claimed the Council failed to communicate with her about her complaints. Z does not attend school and sees no friends. The failures by the Council left them both isolated and lonely. She appealed the Council naming school 1 in the EHC plan, as it was not her preferred school.
28. Z has not attended any school since May 2024 and has received home tutoring instead. The Council confirmed his previous school placement broke down the month before.
29. In June, an Education Other Than At School (EOTAS) package was agreed. This type of package is made when a child with special educational needs cannot be educated in a formal educational setting. This could be because of a placement breaking down, for example. It is usually only a temporary measure until an appropriate educational setting can be found. The package can be made online, through home tuition, or some other tuition centre, for example. It is usually considered within a reassessment of an EHC plan or at an annual review of it.
30. The EOTAS package was agreed up to August 2025 and was made up of four mornings of tuition a week. The records state this provision was in place as a short term solution while Z was prepared for a transition back into a mainstream school setting. It was accepted he was not attending school, and the situation was affecting Miss Y’s health.
31. Until September 2024, Z received 15 hours a week tuition and one hour a week with an Occupational Therapist (OT). Miss Y disagrees and says he received eight hours a week. He was to join the alternative tuition centre as well, but he visited a few times with Miss Y and could not settle as most of the other children were significantly older than him.
32. From November, he was on the roll for school 2 in Year 6. He had slowly been building up his weekly timetable and engaged there four times a week. A later EHC plan noted he had been making good progress there.
33. There was a phase transfer review of his EHC plan the same month. The Council has a legal duty to review and amend an EHC plan when a child or young person transfers from one phase of education to another. This could be from primary to secondary school, for example.
34. The review noted he received home tutoring for two hours a morning 3-4 times a week. Miss Y wanted the alternative tuition centre removing. The review recorded he would be offered an alternative, or a transition to, ‘in school’ time. This would be a phased transition. He was currently attending two full days in school and one doing all-day Outdoor Education. He would need a slow and controlled transition to his secondary placement. It would mean Z attending more core school provision.
35. In February 2025, the Council issued an EHC plan which named school 1. Miss Y was unhappy as she wanted a place at her preferred school. This is an independent special school. She also wanted the Council to include additional special needs in Section B. The Tribunal decided her preferred school should be named in the EHC plan instead of school 1.
36. In September the Council, following the Tribunal decision, issued a final EHC plan which noted he received a weekly OT session and was attending school 2 where he was engaged with lessons and making good progress. As required by the Tribunal, it named her preferred school in it.
37. The Council could provide no evidence of:

• monitoring provision to ensure it was adequate;
• liaison with any school or provider about it;
• respite requests from Miss Y; and
• the date when an OT assessment was actioned.

My findings

Complaint a): appropriate education

38. Taking account of all the evidence, I am satisfied the Council took steps to ensure Z received appropriate education from May 2024. I say this for the following reasons:
1. Z was out of school from May 2024. He is a child who had special needs and an EHC plan. As Z was unable to attend school, the Council had to consider whether it owed him the section 19 duty.
2. I am satisfied the Council was aware of the problems Z faced with going into a school environment for education. He received home tutoring from May, and the Council agreed to an EOTAS package three months later. This was seen as a short-term measure while preparations were made for Z’s transition back to a mainstream school.
3. In November, Z was on the roll for school 2 where he had been gradually building up his weekly timetable and making progress.
4. The same month, the Council held a phase transfer review of his EHC plan. It noted he needed a slow and controlled transition to his secondary school placement.

Complaint b): provision in EHC plan

39. I found the following on this complaint:
1. The Council could provide no evidence of it monitoring provision to ensure it was adequate or of any liaison with any school or provider about it. I consider this was fault
2. Despite this, on balance, I am not satisfied this caused Miss Y or Z an injustice. This was because the Council checked the provision he received annually as is evidenced by the EHC drafts and final plans. Three draft EHC plans were issued in January 2025, and final EHC plans were issued in September 2024, February 2025, and September 2025. In addition, I have seen the phase transfer review that took place in November 2024.

Complaint c): occupational therapist

40. I found fault on this complaint because the Council was unable to provide evidence of exactly when it actioned the OT assessment.
41. I am satisfied this caused Miss Y and Z some injustice. This is because it caused uncertainty about whether it was done at the earliest point.

Complaint d): complaints procedure

42. Miss Y complained the Council failed to communicate with her about her complaints.
43. I have seen, or seen reference to, the following correspondence between Miss Y and the Council about her complaint:

• June 2024: This was a complaint she made about communication with Special Educational Needs and Disabilities (SEND) officers and team leaders.
• August: This was a complaint about the lack of response to the complaint she made in June.
• 1 September: Miss Y asked about her two complaints as she was unhappy with the responses received.
• 13 March 2025: The Council sent a stage 1 response to the June and August complaints. It explained the reasons for the delay and upheld the complaints about communication and set out the service improvements it would make.
• 19 March: She sent a further email about her complaint in which she wanted to escalate her complaints to stage 2. No action was taken on it. She raised another complaint about communication and school setting. This was not dealt with until 4 December. It was not upheld on the facts. Miss Y made a further complaint about the Council’s conduct with her Tribunal hearing, and the Council gave it a new reference.
• 3 October: This was sent by the Council in response to the complaint about its actions regarding the Tribunal hearing. The Council later accepted its response was a few days late and apologised.
• 29 October: Miss Y complained about the response and was allocated another reference. She complained the response was generic and had taken a year. She asked for all the complaints to move to the next stage. With the June and August 2024 complaints, she failed to say why she was unhappy with the outcome.
• 4 December: This was in response to her letter sent at the end of October. The Council apologised for the delay in responding and noted problems with staffing. It also explained service improvements taken. It accepted communication was below its expected standard and apologised. The Council listed all her complaints and offered £150 for her time and trouble pursuing them.

44. I found fault on this complaint. The Council delayed responding to her complaints within its own timescales in its complaints policy. This said complaints are dealt with under two stages. If it cannot respond within 20 working days under stage 1, it will write to the complainant explaining why. This is for complaints about SEND. If it needed longer to reply, it would tell the complainant. I have seen nothing to show this happened on any of her complaints.
45. Under stage 2, the Council aims to respond to a complaint within 20 working days from receipt asking for it to be escalated. If it needs longer, it will write to explain why. Again, I have seen nothing to show this happened on her complaint.
46. I am satisfied, therefore, that the Council failed to follow its own complaints procedure. Some of her complaints took more than 12 months to complete under its complaints process. I consider this caused Miss Y an injustice as she suffered frustration, inconvenience, and stress on more than one occasion.

Respite

47. I asked the Council about Miss Y’s complaint about offering respite during the school holidays. The Council’s response to this enquiry merely said this was ‘Social Care’s remit, unable to comment as the SEND team’. This was not an adequate response to our enquiries as we seek a response from the Council. While this may well not have been within the SEND team’s remit, the Council should have approached Social Care for its response. I consider the failure to properly respond to this enquiry is fault and caused an injustice. This is because there is uncertainty about what, if anything, the Council did in response to our enquiries.

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Action

48. I considered our guidance on remedies, as well as the actions the Council said it has since taken, and its previous offer of £150.
49. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Miss Y a written apology for failing to: show exactly when it actioned the Occupational Therapist assessment; ensure it promptly dealt with her formal complaints according to its complaints procedure; provide evidence requested about respite.
2. Pay £300 to Miss Y for the injustice caused by the identified fault, in addition to the previous sum offered.
3. Act to ensure proper records are kept which show when actions required under an Education, Health and Care plan are taken.
4. Review why the repeated failures with her complaints took place and act to ensure all complaints are dealt with within the timescales set by its complaints procedure in the future.
5. Remind relevant officers of the need to provide a full response on behalf of the Council when dealing with our enquiries, even where questions concern other departments/teams.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I made the following findings on Miss Y’s complaint against the Council:

• Complaint a): no fault;
• Complaint b): fault causing no injustice;
• Complaint c): fault causing injustice; and
• Complaint d): fault causing injustice.

52. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman