Summary: Ms X complained the Council failed to provide support to her son when he could not attend school due to mental health needs causing distress and lost educational opportunities. Ms X also complained the Council issued an Education Health and Care Plan for her son and failed to include an Education Other than at School package it agreed. The Council’s offer is a suitable remedy to Ms X for missed provision and she has appealed to the SEND Tribunal, so we have ended our investigation into the complaint.

The complaint

1. Ms X complains about the way the Council provided support to her son Y who has special educational needs. In particular Ms X says:
• The Council failed to provide suitable alternative provision when Y was unable to attend school for mental health reasons.
• Delayed providing an Education Other Than at School (EOTAS) package it agreed to. But then issued a final Education Health and Care Plan (EHC Plan) naming Y’s current school as the educational provision rather than EOTAS.
• Delayed finalising the EHC Plan to reflect the agreement to provide the EOTAS package.
2. Ms X says this has caused distress to Y and the family and lost educational provision for Y. She has been put to time and trouble in pursuing the matter with the Council and caused financial loss due to providing education, activities and transport for Y herself.
3. Ms X wants the Council to pay her compensation for lost education to Y when it failed to provide alternative educational provision and delayed implementing the EOTAS package. And a payment to cover the cost she spent on activities and resources for Y to support Y’s education and well-being and her time and trouble in pursuing the matter.

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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. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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What I have and have not investigated

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. 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 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.
8. 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)
9. 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. 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. 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.
11. This means I have investigated Ms X’s complaint from January 2024 when it was reported Y was not attending school until 31 May 2024 when the Council issued a final amended EHC Plan giving Ms X a right of appeal. I consider it was reasonable to expect Ms X to exercise her right of appeal if she disagreed with the EHC Plan issued by the Council. This is because the Tribunal is best placed to consider such matters. In addition, Ms X exercised her right of appeal in August 2024, so we cannot consider any concerns Ms X has during the period from when she appealed until the Tribunal makes a decision on the case.
12. I have referred to events after May 2024 in the decision statement to provide context to Ms X’s complaint.

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How I considered this complaint

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. Ms X 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

EHC Plan

15. 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.

Maintaining the EHC Plan

16. 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)
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.

Alternative provision

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. 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. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened in this case

20. What follows is a brief chronology of key events. It does not include all the information I reviewed during my investigation.
21. Y had an EHC Plan and attended a special school. In January 2024 Y became unable to attend school due to mental health needs. The Council became aware of Y’s absence on 19 January 2024 when the school made a referral to the Education Welfare team. The Council says it expects a school will take the lead on supporting a child who has difficulty attending school. In Y’s case it said the Education Welfare team were satisfied the school was taking appropriate steps to try to increase Y’s attendance. But advised the school to hold an annual review to ensure the provision in Y’s EHC Plan was appropriate and a GP recommendation to consider alternative educational provision.
22. The Council and school held the emergency annual review on 1 March 2024. The annual review documents noted the school had put in place a support plan to keep in touch with Y and help him learn at home (tutors, play therapist). Although access to provision was limited with no consistent options yet agreed. The school said Ms X had declined some options saying Y was traumatised and needed specialist help. The school said other options were still under investigation. Ms X requested an EOTAS package for Y as she did not consider the school was meeting his needs.
23. The Council issued a proposed amended EHC Plan at the end of March 2024. Ms X sent amendments in line with her proposal for EOTAS.
24. On 1 May 2024 the Council’s SEND panel considered Y’s case and agreed to move him to an EOTAS package. But said it needed further information and professional advice before the package could be agreed. The Council asked for an OT and SALT review to form an EOTAS package and received an educational psychologist report on Y.
25. The Council issued a final amended EHC Plan on 31 May 2024 naming Y’s current school as the educational placement.

Events after May 2024

Stage 1 complaint to the Council

26. Ms X complained to the Council in July 2024 it had failed to provide Y with suitable alternative educational provision since February 2024, not provided the EOTAS package as agreed and issued the EHC Plan without referring to EOTAS.
27. The Council responded to Ms X’s complaint. It said:
• The school made or offered suitable arrangements from January 2024 so there was no need for the Council to intervene then. It considered it had met the requirements of section 19 and 42 of the Education Act 1996.
• An Education Psychology report in May 20024 noted Y had been in bed for the first three weeks of January 2024 and unable to leave the house. But gradually with family support had been able to do so over the last few months. And needed a period of recovery from his mental health difficulties. This suggested uncertainty whether Y would have been able to engage with a full package of learning during the spring term and the school made attempts to source suitable provisions. The educational psychology report made recommendations for Y’s ongoing provision and now less distressed may be ready for the introduction of more formal learning.
• It was moving forward with the EOTAS package, but it needed to be confirmed to increase Y’s access to educational activities at a pace that suited him now his health had improved. The Council did not uphold these parts of Ms X’s complaint.
• It sent a letter to Ms X on 28 March 2024 proposing an amendment to the EHC Plan issued in line with the required legal timeframes. The Council said the proposed amended EHC Plan did not reflect the suggested EOTAS package as it was still to be considered by the SEND panel.
• The SEND panel agreed to the EOTAS package on 24 April 2024. But recommended the Council seek professional advice to determine the exact package of provision to ensure it matched Y’s needs specified in the EHC Plan.
• It issued the final amended EHC Plan on 31 May 2024 without amendments to section F (special educational provision) and still naming Y’s current school in section I as his placement. The SEND team were still waiting for advice from professionals so could not issue the final amended EHC Plan within 8 weeks of the proposed amended plan as required.
• Issuing a final amended EHC Plan gave parents a right to appeal to the SEND Tribunal and it was important not to deny this right as discussions were still going on. This was why it issued the final amended EHC Plan while aware it needed changing. The Council said the eight-week deadline for issuing the final amended EHC Plan was 24 May 2024 so had been issued one week late.
• It apologised if the situation with the final EHC Plan had not been fully explained to her. It apologised for the slight delay in issuing the EHC Plan, any anxiety or distress this may have caused and uphold this part of her complaint.
• It received advice from professionals in June 2024 and sent Ms X a proposed EOTAS package on 26 June 2024. Ms X responded but this had not been submitted to the SEND panel yet and so the updated EHC Plan had not been finalised. The Council upheld this part of Ms X’s complaint and apologised for the delay and any frustration caused.
• The SEND team would ensure it finalised the EOTAS package promptly and be considered by the SEND panel. After the SEND panel it intended to issue a further proposed amended plan reflecting the EOTAS provision. Once the Council received and considered Ms X’s response it would issue an amended final EHC Plan.
28. Ms X remained unhappy with the Council’s response and asked to go to stage 2 of the complaint procedure as the EOTAS package was still not in place. Ms X submitted an appeal to the Tribunal in August 2024 as she disagreed with section B, F and I and the school named in the plan.

Stage 2 complaint response

29. The Council responded at stage 2. It reviewed the stage 1 response. It found no fault in how the SEND team tried to support and provide the appropriate level of provision for Y while looking at alternative options. The Council said it provided an adequate, suitable level of provision taking into account Y’s needs.
30. The Council said it had upheld parts of Ms X’s complaint at stage 1 so upheld the complaint at stage 2. It considered the issue of missed provision and offered to:
• Reimburse any receipts Ms X had since the panel agreement of EOTAS on 24 April 2024 for provision which had since be agreed as part of EOTAS package.
• Pay Ms X £150 for her time and trouble in having to raise concerns through the complaint process.
31. The Council confirmed it had agreed the funds for the EOTAS package and would discuss this further with Ms X. Ms X confirmed at the end of November 2024 she would like the Council to commission tutors and therapists and be given a direct payment for activities.
32. Y’s tuition began on 3 March 2025. Unfortunately, the tuition broke down a week later as Ms X was unhappy with the tutor. Ms X submitted expenses for activities incurred since April 2024 and accepted the remedy payment offered in the stage 1 response. The Council confirmed it is progressing the payment.

The Council’s comments on the complaint

33. The Council notes that Y has missed provision during the Autumn 2024 and Spring 2025 terms. It wishes to acknowledge the impact of this missed provision by offering a remedy payment of £1,000 to Ms X. The payment is intended to support Y’s educational needs and development, such as funding learning resources, tutoring, or other educational activities.
34. The Council confirms the remedy payment for missed provision would be in addition to the £150 offered to Ms X in the Stage 2 response for time and trouble.

My assessment

35. The documents provided show the Council responded to concerns from the school about Y’s attendance and welfare. It arranged and held an emergency annual review to discuss Y’s provision which is an action we would expect the Council to carry out. This led to the council issuing an amended EHC Plan. The Council was satisfied the school was offered support to Y at this time. But has accepted Y missed some of his EHC provision during the Autumn and Spring terms. It has offered Ms X a payment of £1000 for the two terms, so £500 for each.
36. We would normally recommend a payment between £900 to £2400 per term to acknowledge the impact of that loss of provision. But I consider the remedy payment being offered by the Council is suitable in this case. This is because Y’s school was making some provision for him, and from the educational psychologist’s report, it was unlikely Y could have engaged with a lot of alternative provision due to his mental health needs. In addition, the Council has already agreed to reimburse Ms X some expenses she has submitted. It will also pay her £150 for her time and trouble as agreed in its complaint responses. This is the outcome Ms X was seeking. So, I do not consider that further investigation will lead to a different outcome for Ms X, and I am ending my investigation into the complaint.
37. Ms X was unhappy the Council issued an EHCP without including the EOTAS package agreed to. But once the Council issued the EHC Plan Ms X’s means of challenging the decision was by exercising her right of appeal which she has now done so. As paragraph 13 explains we are unable to consider Ms X’s complaint from the point she had and exercised her right of appeal.

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Decision

38. The Council has taken action and offered a suitable remedy in this case and no further action by the Ombudsman is needed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman