Summary: Miss Y complained the Council failed to provide her child, Z, with a suitable full-time education and the special educational needs support in their Education Health and Care Plan. We have found fault by the Council, causing injustice, in failing to secure the proper delivery of Z’s special education needs and educational provision from June 2023 to July 2024; and with its communication failures. The Council has agreed to remedy this injustice by apologising and making payments to recognise the impact on Z of the missed provision and Miss Y’s upset and worry.

The complaint

1. Miss Y complains the Council failed to provide her child Z with: a suitable school placement from September to December 2022; and the special educational needs (SEN) support in their Education, Health and Care (EHC) Plan.
2. She says, because of these failures, Z missed out on a suitable full-time education from September 2022. This impacted their well-being and caused her family upset and financial outlay.
3. Miss Y wants the Council to make changes to its support for children with additional needs and pay financial redress for Z’s missed education, including their Speech and Language Therapy (SALT).

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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. 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)
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

Z’s educational provision from September to December 2022

8. I have not investigated Miss Y’s complaint the Council failed to provide Z with a suitable education from September to December 2022.
9. This is because:

• 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;
• 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); and
• 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.

10. 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.
11. Miss Y had the right to appeal against the Council’s decision, in the final EHC Plan issued in February 2022, to name a mainstream school as Z’s placement from September 2022. Miss Y exercised this right when she appealed to the Tribunal against this decision and asked for a specialist school to be named as Z’s educational placement instead.
12. The Council had provided Z with a full-time school place from September 2022. The reason why Z did not attend this school from September 2022 was, in my view, linked to Miss Y’s disagreement about its suitability and her request for a different school. These were issues raised as part of the tribunal proceedings.
13. On this basis we cannot investigate Miss Y’s complaint the Council failed to provide Z with a suitable school placement in September 2022.

Events before May 2023

14. 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)
15. I have not investigated what happened before May 2023. This is because:

• Miss Y did not bring her complaint to us until October 2024;
• May 2023 is more than 12 months before October 2024. But I have exercised my discretion to investigate what happened from this date. This is because of the Council’s delay in issuing its final response to Miss Y’s complaint, which also told her she could bring her complaint to us if she was not happy with its response; and
• I consider, in accordance with its complaint handling timescales, the Council should have issued its final response by around mid-March 2024. It is likely Miss Y would then have brought her complaint to us sooner, around May 2024.

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How I considered this complaint

16. I considered evidence provided by Miss Y and the Council as well as relevant law, policy and guidance.
17. Miss Y and the Council 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

What should have happened

EHC Plan 

18. 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.
19. 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. 

Maintaining the EHC Plan

20. 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)  
21. 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. 

Reviewing EHC Plans

22. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place.
23. The educational placement must submit the annual review report to the Council within two weeks of the meeting.
24. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

What happened

25. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.
26. I am not investigating what happened before May 2023, but I have set out relevant events as context for this complaint.

Background

27. In February 2022, the Council named a mainstream school in Z’s final EHC Plan as their placement from September 2022.
28. Miss Y appealed to the SEND Tribunal against the Council’s decision to name this school as Z’s placement.
29. The tribunal proceedings were still ongoing in September 2022 and Miss Y decided Z would not attend the named school at the start of the new school year.
30. In November 2022 the Council and Miss Y agreed Z’s placement from January 2023 would be a specialist school. The tribunal proceedings were concluded by consent.

Amended final EHC Plan

31. The Council issued an amended final EHC Plan in accordance with the Tribunal’s consent order. This named the specialist school as Z’s full-time placement from January 2023 and set out the agreed SEN provision, to be provided by the school, in section F. This included:

• Z’s need for a specialist setting with small class sizes so they could have frequent access to individual or small group support;
• 60 minutes of SALT therapy throughout the week;
• Attendance at a social communication group for 35 minutes twice weekly;
• Touch type coaching for 30 minutes once a week;
• 9 hours a term of Occupational Therapy (OT); and
• Intervention to learn self-regulation techniques for 30-45 minutes a week.

January 2023: start of Z’s placement at the specialist school

32. Z started attending their new school in January 2023. The school says Z had a reduced timetable initially to support a gradual transition back to school.
33. This reduced timetable of two hours a day, 3 days a week was in place for the first half of the spring term. For the second half of the spring term and the start of the summer term the reduced timetable increased to four hours a day, five days a week.

May 2023: transition to a full-time timetable

34. The school says Z began attending school full-time four days a week and four hours one day a week from 8 May. The reason for reduced hours on one day was the unavailability of a teaching assistant to provide Z with 1:1 support that day.

June 2023: re-introduction of a reduced timetable

35. The school says Z was placed on a reduced timetable in June 2023 because of their need to be supported 1:1 at all times when at school, to manage their behaviour, and the limited availability of a teaching assistant to provide this support.
36. This reduced timetable of four hours a day, five days a week was in place from 12 June 2023 until the end of the summer term.

July 2023: annual review meeting

37. The school held the annual review meeting with Miss Y on 10 July 2023. I understand they discussed the reduced timetable and concerns about whether the school was able to meet Z’s needs.

September to October 2023: the school’s contact with the Council

38. Z was placed on a reduced timetable of four hours a day three days a week, and one hour a day two days a week. The school says this due to their need for 1:1 support and the limited availability of a teaching assistant to provide the support. This timetable was in place from the start of the new school year in September 2023.
39. The school sent its annual review report to the Council in October. This referred to:

• Z’s communication issues and behaviour towards staff and students;
• Miss Y’s concern about the focus on Z’s behaviour and not the triggers; and
• Z’s need for constant 1:1 support, and that they were currently on a reduced timetable.

40. On 19 October the school told the Council:

• Z was on a reduced timetable;
• Z was not funded for 1:1 support; and
• It could not provide the support Z needed and was unable to increase their time in school which Miss Y had asked for. A change in placement was required.

January 2024: Miss Y’s complaint to the Council

41. Miss Y complained to the Council on 3 January about Z’s educational provision. She said:

• Z had been out of suitable full-time education since September 2022;
• since starting at the specialist school in January 2023, they had not been provided with sufficient support to be able to attend on a full-time basis;
• because of insufficient staffing, Z had only been able to attend school for 11 hours a week and was missing out on the education to which they were entitled; and
• the Council should ensure the school had sufficient staff and provision in place so Z could attend full-time.

42. The Council said, in response to the complaint:

• Z had been provided with a school placement in September 2022 and it was the family’s decision Z should not attend; and
• Its SEN team were meeting with the school to discuss Z’s timetable and SEN provision.

January to February 2024: contact about Z’s timetable and provision

43. The Council and the school had a meeting about Z’s provision. The school provided the Council with details of Z’s attendance, and the reduced timetables in place, from January 2023.
44. It proposed a meeting with the school and Miss Y to discuss a plan to increase Z’s time in school and possible outreach provision.
45. It also told Miss Y, having considered the annual review report, it had decided to amend Z’s EHC Plan. It sent Miss Y a draft amended plan for comment on 31 January 2024.
46. Miss Y’s comments on the draft plan included that there had been a significant delay in starting Z’s SALT and they had only been receiving 15 minutes of OT a week.

April 2024: Final amended EHC Plan

47. The Council issued Z’s final amended plan on 5 April. Z’s placement remained the same. There does not appear to have been any substantive change to Z’s SEN provision in section F.

Further contact about Miss Y’s complaint

48. Miss Y had asked the Council on 8 February 2024, to escalate her complaint to the next stage. She said:

• the school placement named for September 2022 was not suitable for Z;
• Z’s specialist school from January 2023 had said it could not properly support them because of staff availability; and
• The school had told her it had now been granted additional funding for full-time 1:1 support for Z but their hours at school had still not been increased.

49. In its final complaint response in August 2024, the Council said it:

• provided a full-time placement for Z at the specialist school from January 2023. The need for a reduced timetable was primarily due to issues with Z’s behaviour. Funding was provided for 1:1 support; and
• accepted there had been communication failures. It offered her a payment of £250 to recognise this.

50. Miss Y brought her complaint to us in October 2024.

Current position

51. Z’s school confirmed in April 2025 they were attending school full-time with 1:1 support. Their attendance for the school year from September 2024 was 95%.

My decision – was there fault by the Council causing injustice?

The delivery of Z’s SEN provision from May 2023

52. The Council had a duty to make sure Z received the SEN provision set out in section F of their EHC Plan. The Council arranged for the provision to be delivered by the specialist school named as Z’s full-time placement from January 2023.
53. As the duty is non-delegable, the Council remains responsible for any failure by the school to deliver the provision.
54. The Council has told us it is not possible for it to keep a “watching brief” on whether all children in its area with EHC Plans are receiving all the SEN provision set out in their plans. As I said in paragraph 21, we accept it is not practical for councils to do this.
55. But we do expect them to show they have proper oversight and, as a minimum, 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. 

56. The Council has also told us, in addition to annual reviews, the following procedures are in place to ensure the effective implementation of an amended plan or when a child starts at a new placement:

• each school has an allocated co-ordinator with whom they have termly meetings to discuss any concerns or issues with the implementation of EHC Plans; and
• the allocated co-ordinator will provide support for addressing any such concerns or issues.

Did the Council meet our expectations?

57. My view is the Council failed to meet our expectations for checking Z’s SEN provision was being delivered by the school. This is because: Z had started at a new placement in January 2023 with an amended EHC Plan and;

• there is no evidence the Council carried out any checks with the school before October 2023 that Z’s SEN provision was in place;
• there is no evidence of any termly meetings by an allocated co-ordinator with the school in the period before October 2023 to discuss any concerns about the implementation of its students’ EHC Plans;
• the Council failed to complete the annual review process within the required timescale. The school did not submit the annual review report until October 2023, more than two months late. The Council did not chase this up and failed to tell Miss Y, within four weeks of the meeting on 10 July 2023, whether it had decided to amend, discontinue or maintain Z’s plan; and
• it failed to act quickly when it became aware of the concerns about the delivery of Z’s SEN provision and the reduced timetable raised by the school in October 2023.

58. This failure to check and ensure Z’s SEN provision was being properly delivered by the school was fault. Had the Council carried out proper checks it would have known about the issues with Z’s SEN and support provision well before the end of the school year.

Impact of this fault

59. In my view, because of the Council’s failure, Z missed out on part of their SEN and educational provision in the period from May 2023 to July 2024. This is because, based on the evidence seen:

• Z only attended school for between 14 to 20 hours a week from 12 June 2023 until the end of the school year in July 2024, instead of the full-time provision of 30 hours a week;
• the school failed, from 12 June 2023 to July 2024, to provide the support Z needed to enable Z to attend full-time to access all of their SEN and educational provision;
• had this support been in place, as it was from September 2024, Z would have been able to access their SEN and educational provision on a full-time basis as set out in the EHC Plan; and
• Miss Y told the Council in February 2024, there had been a delay in starting Z’s SALT and they were not receiving all their OT support.

60. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
61. I have taken into account that Z missed as much as half of the weekly school hours at certain times and a third of the weekly hours at other times. They also missed out on some of their SALT and OT during this period. But while they were at school, they received 1:1 support and tuition.
62. On this basis I consider the payment for Z’s loss of education provision should be at the lower end of our range.
63. The failure also caused Miss Y upset and worry about the impact on Z of their missed SEN and education provision.

Communication failures

64. The Council has accepted there were failures in its communication with Miss Y about Z’s educational provision and delays in its complaints handling process.
65. These failures and delay were fault. I consider its offer of a payment of £250 to reflect the upset and uncertainty this caused Miss Y meets our expectations for a symbolic payment to recognise this injustice.

Service improvements

66. I understand the Council, as a service improvement in response to our decision on a similar complaint, will review its process for engaging with EHC Plan annual reviews, to ensure it has a robust way to:
1. check whether children and young people received the special educational provision in section F of their EHC Plan; and
2. identify significant gaps between the provision EHC Plans say that commissioned services should be delivering, and what they are actually delivering.
67. On this basis I don’t propose recommending any further service improvements at this stage.

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Action

68. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council should:
1. apologise to Miss Y for failing to check and ensure Z’s SEN and education provision was being properly delivered; and for its communication failures. This apology should be in line with our guidance on Making an effective apology:
2. pay Miss Y, on Z’s behalf, £1,700 (for the period from June 2023 to July 2024), as a remedy for Z’s benefit to recognise the injustice the missed education has caused them:
3. pay Miss Y £250 to reflect the upset and worry caused by its failures regarding Z’s SEN and educational provision; and
4. if it has not already done so, £250 to reflect the upset, frustration and uncertainty caused by its communication failures. These are symbolic amounts based on our guidance on remedies
69. The Council should provide us with evidence it has complied with the above actions.

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Decision

70. I find fault causing injustice. The Council has agreed to take the above action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman