Summary: Miss X complained the Council did not provide education after her son no longer had a place at the school named on his Education, Health and Care Plan. She also complains than an annual review was delayed. Her child, Y, missed two terms of education. An apology and payment to the family remedies the injustice caused.

The complaint

1. The complainant, Miss X, complains the Council did not put alternative educational provision in place within 5 days of her child, Y, being permanently excluded from school. She also said the Council did not arrange for the provision in Section F of the Education, Health and Care (EHC) Plan to be put in place when a child could not attend the school after they were excluded.
2. Miss X also complains the Council delayed carrying out a review and issuing a new EHC Plan after Y was permanently excluded from the school named on the plan.

Back to top

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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

The law

8. 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 Tribunal or the council can do this. 
9. 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. 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) 
10. Where the council proposes to amend an EHC Plan, the law says 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). 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.
11. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
12. 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)
13. 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.
14. 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.
15. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
16. Section 42 of the CFA 2014 places an absolute, non-delegable duty on a council to secure the special educational provision set out in section F of an EHCP (R (N) v North Tyneside Borough Council [2010] EWCA Civ 135). The “absolute, non-delegable” nature of the duty means that a council has no defence even if it has taken reasonable steps to secure provision (e.g. by putting stop-gap measures in place falling short of the provision specified in Section F) or the failure to make provision is the fault of a third party. The courts have found that a failure to make the provision specified in an EHCP may simultaneously involve breach of the section 19 duty as well as section 42 of the CFA 2014. In R (LB) v Surrey County Council [2022] EWHC 772 (Admin), the claimant had an EHCP specifying a residential placement but this placement broke down. Attempts were made to put in place alternative provision but there were repeated delays of over a month before the council began searching for alternative arrangements after it became apparent that a particular approach would be unsuccessful. The council was therefore held to be in breach of section 19, as it had “failed to make available for [the claimant] an efficient educational facility that is suitable for her age, ability and aptitude and her special educational needs, and was reasonably practicable for her” (paras 44; 81-85). The council also conceded that it had breached section 42, given that the provision specified in the claimant’s EHCP was not secured during the relevant period.  

Key facts

17. Y’s EHC Plan named an independent mainstream school. They started at school on 15 April 2024.
18. There was an incident on 24 April 2024. The Council said there is a letter from the school saying that Y was permanently excluded. However, the Council has said that it believes the wording is misleading as independently maintained schools give a notice of placement ending rather than permanently exclude a student.
19. Miss X told me that she didn't receive anything from the school stating Y was permanently excluded. She said Y was told by the school to take a few weeks off and they would be in contact but she heard nothing.
20. In response to my enquiries the Council said ‘it understands that Y was receiving one day a week at an alternative provision following the incident until June 2024’. Y was still on role until the end of the summer term 2024. The Council said ‘it consulted with providers of alternative provision in November, funding was agreed at panel on 9 December with a start date of 6 January 2025’.
21. The school carried out an annual review of the EHC Plan on 4 November 2024. The Council said there was a delay in organising this and the Council should have chased up the school to carry this out. At the time of writing this decision (15 April 2025), the final plan has not been sent out.
22. The Council has said there is now alternative provision in place until June 2025. Two sessions at an outdoor education centre, an afternoon of mentoring and three half day sessions of tutoring per week.

My analysis

23. The Council has accepted it was at fault. There was delay in ensuring alternative provision was in place, deciding whether a placement had ended, and arranging an annual review. This resulted in Y receiving virtually no education for two terms.
24. Our guidance on remedies says that ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal’.
25. As Y was in his GCSE year in 2024 and received little educational provision for the summer and autumn 2024 terms, the Council should make a payment at the top end of the remedy range in the guidance. This would be £2400 per term, for two terms, a total of £4800. Also, the Council should pay Miss X £500 towards the uncertainty and distress caused by the delays.
26. The Council has developed a SEND action plan and is undergoing a significant transformation programme. We are overseeing the Council’s wider SEND strategic plan which includes the issues identified in this decision, therefore I have not made any service improvement recommendations.
27. Miss X can make a new complaint to the Council if it does not issue a final EHC Plan without delay.

Back to top

Action

28. Within one month of the date of the decision on this complaint, the Council should:
• Apologise to Miss X and Y. We publish which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Miss X £5300.
29. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

30. I have completed my investigation and find fault causing injustice. This complaint is upheld. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman