Summary: Miss B complained the Council failed to comply with a tribunal order to name a specialist placement in section I of her child, X’s, Education, Health and Care Plan. Miss B says her mental health has been impacted, causing mental and physical exhaustion. Miss B also says her son is experiencing burnout which has heightened due to his needs not being met. We have found the Council at fault for failing to consider its section 42 duty. This has caused X to miss out on education and support. The Council has agreed to apologise, consider providing catch-up provision, make a symbolic payment and review its process for securing alternative provision.

The complaint

1. Miss B complained the Council failed to comply with a tribunal order to name a specialist placement in section I of her son, X’s, Education, Health and Care Plan. Miss B also says the Council sought to have the order set aside with no legal reason and her son missed education due to delays with the Education, Health and Care Plan process. Miss B says her mental health has been impacted, causing mental and physical exhaustion. Miss B also says she has experienced stress and anxiety due to constant threats of fines and court proceedings related to X’s attendance. Miss B says X is experiencing autistic burnout which has heightened due to his needs not being met. Miss B would like the Council to comply with the tribunal order and place X in a specialist setting. She would also like the Council to compensate herself and X for the injustice they have experienced.

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The Ombudsman’s role and powers

2. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
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).

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What I have and have not investigated

6. I have not investigated the part of Miss B’s complaint which relates to the actions of the Council challenging the Tribunal decision as this matter was decided by the Tribunal. The law says we cannot investigate matters which may fall to be decided by the Tribunal.
7. I have investigated the Council’s actions in complying with the Tribunal order and the actions it took between August 2024 and March 2025 to ensure X had access to the special educational provision detailed in his EHC Plan.

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How I considered this complaint

8. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
9. Miss B 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

Legal and administrative background

Education, Health and Care Plans

10. 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.
11. The EHC Plan is set out in sections which include: 
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.
   
12. 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)  
13. 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.
   
14. 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 report.

What happened

15. Following an appeal against sections B, F and I of X’s EHC Plan, the Tribunal issued an order at the beginning of August 2024. The order said the Council should amend sections B and F and section I should be amended to say X would attend ‘A special school placement’.
16. At the end of August, the Council appealed the Tribunal’s decision. The Tribunal found there were no grounds for a review of its decision. The Council issued X’s amended EHC Plan the following day.
17. In response to our enquiries the Council told us that between August 2024 and March 2025, X had access to two weekly mentoring sessions. The Council has not provided any evidence it considered its section 42 duty to ensure X received the special educational provision set out in his EHC Plans or took steps to ensure X had access to suitable, full-time education during this time.
18. From March 2025 the Council secured alternative provision for X and agreed to name an independent specialist placement in his EHC Plan.
19. The Council told us it did not issue any attendance warning letters fines or legal proceedings during this time period.

My findings

20. The Council complied with the Tribunal order following the Tribunal’s decision the order would not be reviewed. I have not found fault in the Council’s action to comply with the Tribunal order.
21. The Council owes X the duty to secure the special educational provision set out in the EHC Plan. The Council failed to consider its section 42 duty between August 2024 and March 2025. This is fault which caused X to miss out on access to education and support for approximately a term and a half, at the beginning of year 10. The fault has also caused distress, frustration and uncertainty for X and Miss B.
22. The Council made Miss B aware of its duty to enforce attendance however it has told us it did not issue any letters, fines or legal proceedings. Therefore, I do not find any fault in the Council’s actions relating to attendance warnings.

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Action

23. Within one month of the final decision the Council will:
• Apologise to X and Miss B for the faults identified. 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.
• Consider whether X can access additional provision to make up for the provision he missed out on between August 2024 and March 2025. If X is able to access catch up provision, this should be arranged without delay.
• Make a symbolic payment of £2,250 to Miss B in recognition of the injustice caused by the faults identified. This is calculated at £1500 for the full term and £750 for the half term and considers the impact of the missed education.
24. Within three months of the final decision the Council will review its process for securing special educational provision when it is aware a child or young person is unable to attend school or is awaiting allocation at a special school. The Council should ensure there is a system in place to secure provision and funding without delay.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I find fault causing injustice. The Council has agreed to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman