Summary: Mrs X complained the Council failed to put alternative provision in place for her child, Y who has an Education, Health and Care (EHC) Plan when they were unable to attend school between February and July 2024. This period falls outside of our jurisdiction because Mrs X appealed to the Special Educational Needs and Disability tribunal. The Council was at fault for delays in paying Mrs X direct payments after the tribunal concluded which caused a three week loss of education for Y. It also delayed responding to Mrs X’s complaint. The Council agreed to make payments to Mrs X to recognise the injustice this caused.

The complaint

1. Mrs X complained the Council failed to ensure her child, Y received a suitable education or the specialist provision in line with their Education, Health and Care (EHC) Plan between February and July 2024. This was after Y stopped attending school due to health reasons.
2. Mrs X said the matter has impacted on Y’s education and development and caused distress and uncertainty.

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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. 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.
5. 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)
6. 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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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs 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

Relevant law and guidance

EHC Plans

9. 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.
10. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

SEND tribunal

11. 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.
12. 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.
13. 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.
14. 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.
15. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
16. We cannot trespass in any way on the jurisdiction of the tribunal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.

SEND tribunal order timescales

17. The Council has time limits within which it must carry out an order from the SEND tribunal. If the SEND tribunal orders that an EHC Plan be amended the Council must do this and issue the amended Plan within five weeks of the order being made.

Education Other Than At School and personal budgets

18. Some children and young people receive their education out of a school setting because they cannot attend a mainstream or special school setting. This is referred to as Education other than at School (EOTAS). Where an EOTAS package is in place the Council is responsible for arranging and paying for the provision. Sometimes an EOTAS package is funded via a personal budget which is an identified amount of money needed to pay for some or all of the provision in an EHC Plan. Parents/carers can choose to receive the budget via direct payments and commission and pay for the provision themselves.

The Council’s complaints policy

19. The timescales for responding to complaints is outlined on the Council’s website. If someone escalates their complaint to stage two of the procedure it says a senior officer will respond within 25 working days.

What happened

20. Mrs X has a child, Y who is of primary school age. Y has special educational needs and an EHC Plan which named School 1, a mainstream school in section I. Y started year 6 in September 2023 and records show they struggled with attendance.
21. Following an annual review in November 2023 the Council wrote to Mrs X in January 2024 and said it was maintaining Y’s EHC Plan is it did not believe any changes were required.
22. Y stopped attending School 1 at the end of January 2024.
23. The Council issued an EHC Plan for Y in February 2024 which continued to name School 1 in section I. This Plan was issued following an appeal to the SEND tribunal about sections B and F in an earlier EHC Plan issued in 2023.
24. After Y stopped attending school Mrs X asked the Council in February 2024 to provide Y with alternative provision. She provided supporting evidence from professionals including:
• An Occupational Therapy report which noted Y ‘was no longer able to access mainstream education’.
• A letter from Y’s doctor stating they had been diagnosed with Autistic Spectrum Disorder and had severe anxiety. It said Y was struggling to leave home and attend school and asked the Council to support Y’s educational needs.
25. Email records during February show a Council SEND officer stating School 1 would need to put alternative provision in place with a view to building Y back to attend full-time.
26. Mrs X contacted the Council again in March 2024 asking it to provide alternative provision.
27. In March 2024 Mrs X appealed to the SEND tribunal against both the content and the naming of School 1 in the EHC Plan following an annual review decision in January 2024. Mrs X’s appeal said the Plan named a mainstream school which Y was unable to attend. She said Y needed a specialist school for children with high functioning autism.
28. Y remained out of school for the rest of the academic year. There is evidence of some agreements to put alternative provision in place for Y by both School 1 and the Council. However, these attempts were either unsuccessful or did not materialise.
29. The SEND tribunal heard Y’s case in June 2024 and issued an order at the end of June 2024. The order stated the Council should amend Y’s EHC Plan to show no school named in Section I as Y would now need EOTAS. The tribunal also ordered changes to Section B of the Plan.
30. The Council issued Y’s amended EHC Plan in July 2024 within the timescales allowed. The EHC Plan outlined that Mrs X would receive a personal budget to fund Y’s education and provision which she would receive in 12 monthly instalments.
31. Mrs X did not receive the first direct payment instalment until the end of September 2024 which meant Y did not receive any educational provision during the first three weeks of the academic year.
32. Mrs X complained to the Council in July 2024 about a lack of alternative provision for Y while they were out of school. She escalated her complaint to stage two at the start of August 2024. She said the Council had a duty to provide educational provision for Y between February and July 2024, but it failed to do so.
33. The Council did not respond to Mrs X at stage two of the complaints procedure until the end of January 2025.
34. Mrs X remained unhappy and complained to us.

My findings

35. Mrs X’s complaint to us is about a lack of alternative provision between February and July 2024 while Y was out of school. The Council issued a decision in January 2024 not to amend Y’s final EHC Plan which named School 1, a mainstream primary school. This decision came with a right to appeal to the SEND tribunal. Not long after, Y stopped attending in January 2024. Mrs X says School 1 could not meet Y’s needs and Y required a specialist placement.
36. Mrs X believes the Council should have put in place alternative educational provision and arranged for Y to receive the special educational support in section F of their EHC Plan during this period. This included speech and language therapy (SALT) and occupational therapy (OT). She says the Council accepted in February 2024 that School 1 could not meet Y’s needs and it was clear Y could not attend school due to illness (anxiety). However, the evidence shows that in February 2024 the Council said if Mrs X wanted to explore Y attending a special school it would call a review and School 1 would need to put in place alternative provision, using the powers available to the school. If she did not want to explore the option of a special school, School 1 should still offer Y alternative provision with a view to rebuilding Y’s attendance back to full-time. Both these options set out by the Council show it felt School 1 could support Y at that time and if Y had attended, they would have had access to the support set out in section F of their EHC Plan. Therefore, I am not persuaded that the Council felt Y was unable to attend school or that it felt School 1 was unsuitable as Mrs X alleges.
37. In any case, the core of Mrs X’s appeal to the tribunal was about the Council’s decision to still name School 1, a mainstream school, in Y’s EHC Plan, as she felt Y’s needs could only be met in a special school, the consequence of which meant Y did not attend School 1. Therefore, as she lodged an appeal about that decision, I cannot investigate the period February to July 2024 as it would result in me looking at the Council’s decision and reasoning in January 2024 to continue to name School 1 in Y’s EHC Plan and whether School 1 was suitable to meet Y’s needs. Investigating would therefore trespass on the tribunal’s jurisdiction. In line with the reasons explained in paragraphs 12-16 this period falls outside of our jurisdiction and is therefore not something I can investigate.
38. The SEND tribunal ordered the Council to amend Y’s EHC Plan to show EOTAS. This meant it should have ensured Mrs X received the initial direct payment instalment so she had time to arrange the provision to be in place for Y by the start of the 2024/25 academic year. It delayed paying the direct payment by three weeks in September 2024 which was fault. It meant Mrs X was not able to arrange the provision in time and Y lost out on education provision during this period.
39. The Council also delayed handling Mrs X’s complaint. Mrs X escalated her complaint to stage two at the start of August 2024, but the Council did not provide a response until the end of January 2025. That was significantly over the 25 working days response time outlined in the Council’s policy. That delay was fault and caused Mrs X frustration.

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Action

40. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and pay her £150 to recognise the distress and frustration caused by the delay paying Y’s direct payments in September 2024 and the delay in responding to her stage two complaint. 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.
2. Pay Mrs X £550 to acknowledge Y’s loss of education in September 2024 caused by the delay in paying the direct payments to Mrs X.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman