Summary: The Council was at fault as it failed to ensure Miss X’s child Y received the special educational provision in their Education, Health and Care Plan. The Council has agreed to apologise and make a payment to Miss X to acknowledge the distress, frustration and missed suitable educational provision this caused between June 2024 and October 2024.

The complaint

1. Miss X complained the Council failed to ensure her child Y received an appropriate education and the special educational provision set out in section F of their Education, Health and Care (EHC) Plan. This has caused her and Y distress and meant Y missed out on education.

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The Ombudsman’s role and powers

2. 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(1), as amended)
3. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
4. 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). 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.
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 Miss X and the Council as well as relevant law, policy and guidance.
8. I gave Miss X and the Council an opportunity to comment on a draft of my decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care 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. 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.
10. 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)  

Annual reviews of the EHC Plan

11. 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) 
12. 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.

Appeal rights

13. 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;
• amendment to these elements of an EHC Plan; and
• decision not to amend an EHC Plan following a review or reassessment.

14. 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)
15. 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.
16. 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.
17. 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.

Child in Need

18. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
19. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
20. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

What happened

21. I have considered what happened from the annual review of Y’s EHC Plan in June 2024 up to January 2025.
22. Y has severe language disorder and social, emotional and mental health needs (SEMH). In May 2023 Y was diagnosed with autism and attention deficit hyperactivity disorder. Y has an EHC Plan and attends a special school, School A. School A caters for primary, secondary and sixth form age pupils.
23. Y’s EHC Plan named School A with the aim of moving Y to School A’s secondary school site in September 2024. The provision in section F of Y’s EHC Plan included:
• No less than 25 hours per week additional adult support through one-to-one, small group or reduced teaching size with additional support to facilitate access to the curriculum and deliver individually planned programmes of work.
• A small group language programme of three 20 minute sessions a week to develop speaking, listening and understanding delivered by appropriately trained staff.
• An evidence based social communication and interaction programme to build up to Y working in a small group.
• Structured social opportunities such as a weekly lunchtime club and direct teaching around feelings and keeping safe socially.
• An individual SEMH programme.
• Hydrotherapy.
24. In June 2024 the Trust in charge of Children’s Services arranged a Child in Need review at School A. Y’s social worker met with Miss X and key school staff. Y did not want to attend. The notes record the child in need meeting was being held in conjunction with Y’s EHC Plan annual review. They noted:
• School A ‘reiterated today that they were unable to meet [Y’s] needs’. They felt ‘the school is not the correct setting for [Y] and they would be best placed at a provision where the school’s primary focus is meeting the need of children with social, emotional, mental health needs’.
• Y ‘has not been in school in recent weeks following an incident… where Y was in crisis and the school felt unable to manage them, as a result emergency services were called’.
• School A wished to support Y until an alternative provision could be found. This would be on a reduced timetable engaging in activities they enjoyed.
• School A ‘have confirmed today that they will not be offering [Y] an education as such in school, the support would be focused on keeping [Y] safe’.
• Miss X will arrange to look around alternative schools.
• Miss X was advised the School and social care would liaise with the SEN team to ensure there was no drift. The notes record the School would forward the annual review paperwork to the SEN team, so the process of identifying a new provision could begin.
25. The annual review form noted School A could no longer meet Y’s needs it could not safely transition Y to the secondary site due to their frequent and sustained periods of dysregulation. It noted Y would remain on the primary site receiving four hours of support a day with two to one support and a low demand timetable. The form noted Miss X, School A and Y’s social worker agreed School A was not an appropriate setting for Y.
26. In late June 2024 the Council spoke with School A. It said Miss X requested a change of setting at the annual review. In late July 2024 the Council noted Miss X wanted every suitable SEMH secondary school consulted for a September 2024 start.
27. In October 2024 the Council issued Y’s final amended EHC Plan. The Plan noted Y was not in school full time. It noted Y’s SEMH created a barrier to their learning and progress, even when accessing a setting with specialist staff, small class sizes and one to one support. It included detailed specific provision including 25 hours one to one support or very highly skilled and experienced SEND staff at no more than 1:13 with additional adult one to one support and an individual literacy and numeracy programme of one to one for 15 minutes twice a day. It continued to name School A.
28. In early October 2024 Miss X contacted Y’s SEND caseworker with concerns School A was not meeting Y’s needs. Y was being taught separately and only for two hours a day. School A’s personalised curriculum access plan noted it could not meet Y’s needs due to Y’s primary need being SEMH. It noted there had been a large number of physical incidents and restrictive interventions. Y received two hours a day of two to one support but this was not effective in maintaining Y’s regulation. Phase one was for Y to attend with opportunities for engagement and learning with phase two being Y’s transition to a new provision where Y’s needs would be met.
29. In late October 2024 Miss X complained to the Council that Y had not received the provision in their Plan. They were kept at the primary school site when they should have moved to the secondary site, had their timetable cut and the Council had again named School A when it was only providing two hours of schooling per week.
30. In November 2024 the Council arranged mediation. Following this the Council agreed to arrange an annual review.
31. Y stopped attending School A later that month as Miss X decided one hour was not enough and Y returned from school dysregulated. She wanted Y to attend more hours each day at School A.
32. The Council responded to Miss X’s complaint in December 2024. It upheld Miss X’s complaint that it had failed to provide Y with their section F provision.
33. Miss X remained unhappy that Y had not received the provision in their plan, she had not agreed to his modified timetable and Y had not moved to the secondary provision. The Council considered her complaint at the next stage of its complaints procedure in late January 2025. It said it had arranged mediation and School A had arranged for an annual review to take place. It upheld the complaint about a lack of section F provision and that Y was on a modified timetable without Miss X’s agreement. It acknowledged Miss X was dissatisfied with the provision at School A but the SEND team had acted on the outcome of the mediation and liaised with the School in order to resolve the issues.
34. The Council issued a proposed amended EHC Plan in late January 2025. It issued Y’s final EHC Plan in February 2025 which included reference to the SALT and EP assessments. It continued to name School A.

Findings

35. From June 2024 Y was not receiving full time provision at School A and stopped attending School A altogether in late November 2024. The Council’s duty to arrange the section F provision within a child’s EHC Plan is non-delegable.
36. The Council was aware Y was not attending school regularly in June 2024 and that School A felt it could not meet Y’s needs. However, it is the Council’s role to decide which school is suitable, unless a tribunal has ordered a different educational setting. In October Miss X knew the Council continued to name School A in Y’s final EHC Plan issued in October 2024. Miss X stopped sending Y to School A in November as she felt it was not meeting Y’s needs. At this point she still had appeal rights against the school named in Y’s EHC Plan. Miss X could have used her right of appeal.
37. As I have set out in paragraphs 14 to 17 above, there are limits to our investigations where there is a right to appeal to the SEND Tribunal about a final EHC Plan. The Council issued a final Plan in October 2024, at which point Miss X had the right to appeal to the Tribunal. Y’s missed education after that point is connected to the suitability of School A and it was open to Miss X to appeal. Therefore, I cannot investigate, or recommend a remedy for, any lack of alternative education or SEN from the point the Council issued the final amended EHC Plan in October 2024. However, I can recommend a remedy for the missed SEN provision between June 2024 and October 2024, of just under one term.
38. The Council has already accepted it failed to ensure Y received most of their special educational provision between June 2024 and October 2024.
39. In response to separate complaints concerning similar issues which we decided in August 2024 and September 2024 the Council agreed to produce action plans including how it will ensure it meets its duty to immediately secure the special educational needs (SEN) provision in a final EHC Plan. This includes proper consideration of to what extent it can deliver the Plan where a child is out of school.
40. I have therefore not recommended any service improvements on this case. We will continue to monitor the Council’s performance through our casework

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Agreed Action

41. Within one month of the final decision the Council has agreed to:
1. apologise to Miss X to acknowledge the distress and frustration she was caused by the Council’s faults. 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.
2. pay Miss X £700 for the distress and frustration and missed special educational provision it accepts Y did not receive for just under a term between June 2024 and October 2024.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman