Summary: The Council was at fault. It failed to provide Miss X’s child, Y, with a suitable education, failed to secure Y’s special educational provision and communicated poorly with Miss X when it changed its decision to provide education other than at school (EOTAS). This caused Miss X confusion, frustration, distress and uncertainty and Y missed education to which they were entitled. The Council will apologise and make a symbolic payment. The Council has already put in place actions to improve its service.

The complaint

1. Miss X complained the Council:
1. delayed issuing her child, Y’s, Education Health and Care (EHC) Plan in line with statutory timescales following an EHC needs assessment request;
2. delayed issuing Y’s, EHC Plan in line with statutory timescales following a needs reassessment;
3. did not provide Y with suitable education from January 2024;
4. went back on a decision to provide education, other than at school (EOTAS) which left Y without any appropriate educational provision;
5. amended Y’s EHC Plan without Miss X’s consent in late 2024;
6. failed to provide Y’s Section F provision after May 2024; and
7. communicated poorly.
2. Miss X said as a result, Y’s education and welfare suffered, and it caused her mental health issues and affected the whole family.

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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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. As explained in paragraph four above we cannot investigate late complaints unless we decide there are good reasons. Miss X complained to the Ombudsman in late January 2025 about events starting in September 2023. Part of the complaint is late and there are no good reasons to exercise discretion to investigate events going back to September 2023.
11. I have decided to investigate the EHC Plan process (paragraph 1a above) between late December 2023 when the Council decided to carry out an Education, Health and Care (EHC) needs assessment for Y, which was relevant to the subsequent events that were not late and early May 2024 when the Council issued Y’s final EHC Plan.
12. Miss X had a right of appeal to the special educational needs and disabilities (SEND) Tribunal when Y’s first final EHC Plan was issued in early May 2024. I have used my discretion to consider the period between June 2024 and October 2024 for point 1b) above because Miss X was going through the mediation process which considered Y’s needs and it would not have been reasonable to expect her to appeal at that time.
13. In relation to the Council’s Section 19 duty, point 1c) and 1d) above, I have investigated between January 2024 when Y was on a part-time timetable and December 2024 when the Council issued Y’s final amended EHC Plan and gave Miss X her appeal rights to the SEND Tribunal, which she exercised.
14. For point 1e) above I have investigated between October 2024 when the Council issued Y’s final amended EHC Plan including EOTAS and December 2024 when the Council issued Y’s next final amended EHC Plan and Miss X had her appeal rights to the SEND Tribunal, which she exercised.
15. In relation to Y’s Section F provision point 1f) above I have investigated between early May 2024 when Y first had an EHC Plan and late December 2024 when the Council issued Y’s final amended EHC Plan and Miss X was given her appeal rights, which she exercised.
16. For point 1g) above I have investigated between January 2024 and mid-January 2025 when the Council issued its stage two response.

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How I considered this complaint

17. I considered:
• the information Miss X provided about her complaint and spoke to her on the telephone;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
18. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

19. 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. Section B sets out the child’s special educational needs. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.

Timescales and process for EHC assessment.

20. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following:
• where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable a council should decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks of the request for an assessment.
• if the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.
21. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
22. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47).

Appeal rights

23. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND tribunal in this decision statement.
24. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
25. The courts have established that if someone has appealed to the SEND Tribunal or reasonably could have done so, 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)
26. 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.
27. 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. If the parent or young person does not appeal but should have, then the period we cannot investigate ends when the Council makes another appealable decision.

Section 19 duty

28. Council’s 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 provision.
29. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’).
30. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022. We made recommendations which included that councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Maintaining the EHC Plan

31. 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).
32. 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 its legal duty. At a minimum we expect it 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.

Education Other Than At School (EOTAS)

33. Education Otherwise Than At School (EOTAS) is a form of education where the child receives provision wholly outside of a school setting. It can be made up of several different kinds of provision. Section 61 of the Children and Families Act sets out the legislation on special educational provision otherwise than in school.

What happened

34. Y has special educational needs that affect the way they communicate, manage social situations and behave around others.

Background

35. Y attended a mainstream primary school, School 1. Y’s mother, Miss X, said she moved Y from School 1 because it could not meet Y’s needs and because of school based trauma. In September 2023 Y moved to a new mainstream primary school, School 2.
36. In mid-September 2023 the Council was requested to carry out an Education, Health and Care (EHC) needs assessment for Y. The Council initially refused to assess Y for an EHC needs assessment.
37. In the Autumn term of 2023 Y’s attendance at School 2 declined. Miss X said because of Y’s school-based trauma, anxiety and mental health concerns Y found it hard to be in a classroom around other children and struggled to attend school.

Early December 2023 onwards

38. In early December 2023 after considering additional evidence the Council agreed to complete an EHC needs assessment for Y.
39. In January 2024 School 2 put Y on a part-time timetable. Y attended school for approximately four hours per day but this varied day to day and Y was taught individually outside the classroom.
40. The Council asked professionals for advice for Y’s EHC needs assessment, including the educational psychology service (EP) and Occupational Therapy (OT). EP and OT reports about Y were sent to the Council.
41. In early April 2024 the Council held a Multi-agency Panel. The Panel agreed to issue Y with an EHC Plan. A few days later the Council issued Y’s draft EHC Plan and in early May 2024 the Council issued Y’s final EHC Plan. Y’s final EHC Plan named School 2 in Section I. The key parts of Section F in this Plan included the requirements for Y to receive:
• a social skills programme provided by a trusted adult, one-to-one;
• interaction with peers, provided by a Teaching Assistant (TA), one-to-one and in small groups;
• pre and post teaching, provided by a Teacher and TAs in small groups;
• adult facilitated discussions in lessons, in conversation with peers and in unstructured social times in small groups;
• meet and greet on arrival in school, one-to-one support;
• activities encouraging sensory input, one-to-one; and
• social and emotional support one-to-one and small group interventions.
42. In May 2024 the Council Inclusion Team agreed for Y to receive one hour of education a day, which would be reviewed and extended fortnightly. There were no Council records to show it was reviewed. Records from School 2 showed Y did not regularly attend the one-hour sessions consistently despite Miss X trying to get them to school daily. School 2 did put in place adaptations for Y such as one-to-one support from a trusted adult and not completing activities in the classroom.
43. In early June 2024 Miss X requested mediation. In June and July 2024 new professional advice was received from Speech and Language Therapy (SALT), School 2, Primary Behaviour Service (PBS) and Children and Adolescent Mental Health Services (CAMHS). The CAMHS assessment recorded Y’s mental health was deteriorating and Y was more aggressive with family members, other children and adults. Y was refusing to leave home which was affecting their wellbeing. The actions agreed more support from CAMHS.
44. In mid-July 2024 mediation took place. Miss X said the EP advice did not reflect Y’s needs and the mediator agreed further EP advice would be sought and a draft EHC Plan would be drafted by 20 September 2024. In relation to Section I the mediation record noted the Council would need to consider the most appropriate placement for Y based on professional advice with EOTAS considered as one option for Y. Miss X asked for the EOTAS package for Y. The Council said a full reassessment was not requested.
45. According to Council records Y attended School 2 for a total of 15 sessions for one hour per session in the Summer 2024 term.
46. Miss X said in September 2024 Y did not receive any education or any Section F provision. The Council said Y attended School 2 for two hours in September 2024.
47. In September 2024 additional EP advice was provided alongside a Primary Behaviour Service (PBS) report. On the last day of September 2024 the Council sent Y’s draft EHC Plan to Miss X. She requested education other than at school (EOTAS) for Y. Miss X said a Council officer spoke to her on the telephone and told her EOTAS would be provided for Y and she should visit alternative education providers with Y and find a EOTAS package, which she did.
48. In early October 2024 the Council issued Y’s final amended EHC Plan to include EOTAS. Section I was left blank. Section F of this Plan included support with Y’s communication needs and social awareness on a one-to-one basis including a personalised curriculum incorporating therapeutic approaches. Miss X said she was not told this Plan had been issued. The Council did not send Miss X a decision letter with this final amended EHC Plan and she was not made aware of her appeal rights.
49. In mid-October 2024 Y’s SEND Case officer, Officer 1 emailed Miss X to explain confirmation had been sent to the Council’s school admissions team that Y was now EOTAS and was no longer attending School 2. Officer 1 also emailed Miss X to say they were waiting for confirmation of a funding request but the aim was for Y’s EOTAS to start after October 2024 half term.
50. In the meantime, a new manager was appointed to the Council’s SEN Team and reconsidered Y’s EOTAS offer.
51. In late October 2024 the Council telephoned and emailed Miss X and told her it was reviewing Y’s EHC Plan to ensure compliance with Section 61 of the Children and Families Act. The Council said before agreeing EOTAS it should have consulted with mainstream and special schools to check whether they could meet Y’s needs. The Council apologised for not completing this before and said the plan was back at the draft stage.
52. The same day Miss X complained to the Council. She said Y had received little to no education in the past two years which affected their mental health. EOTAS was agreed by the Council but then an EOTAS package was not put in place. Miss X said Y’s EHC Plan was amended in October 2024 but then put back to draft without her consent or a review to allow for school consultations. She wanted Y to receive an education.
53. Miss X said the alternative provision agreed by Officer 1 as part of an EOTAS package to start after October 2024 half-term was revoked which caused Y distress because Y was looking forward to attending the provision.
54. In late November 2024 the Council responded to Miss X’s stage one complaint and said:
• Y’s attendance declined when she attended School 2 but there was always an educational offer open to them, it did not uphold Miss X’s complaint;
• when it issued Y’s draft EHC Plan in late September 2024 it should have been presented to a Multi-agency Panel for a decision on Section I of Y’s Plan, it apologised for this mistake. It said internal staff training had been provided to the SEND service regarding this issue. It upheld Miss X’s complaint; and
• it apologised a decision to name EOTAS was taken outside of the process and without consulting educational settings. It said it had amended Y’s EHC Plan outside of the annual review process permitted by SEND Code of Practice and this was communicated to Miss X by Officer 1. It said intensive internal training was being delivered to ensure it did not happen again.
55. In early December 2024 Miss X said Officer 1 discussed a tutor for Y for two weeks. Miss X said previously this had been discounted by the Council. Miss X said two weeks would not have been long enough for Y to engage with a tutor because of their selective mutism and would have caused Y more trauma because Y needed consistency. Miss X was also unhappy with the stage one response and escalated her complaint to stage two of the Council’s complaints process.
56. In mid-December 2024 a Council Panel decided Y should attend a mainstream school and the next day it issued Y’s amended final EHC Plan which named School 2.
57. In mid-January 2025 the Council provided Miss X’s stage two response and said:
• it apologised for the impact of its failings when it did not follow due process and it supported the service improvements taken. It acknowledged the training would prevent mistakes happening in the future but it did not resolve the immediate matters for Miss X and her family;
• Y’s final amended EHC Plan had been issued naming School 2 following a Council Panel in late 2024 and a decision was taken to include a tailored package of provision for Y moving forward to reintegrate Y back to learning at an appropriate pace for them;
• there had been a small gap in provision but the Council had been in regular contact with Miss X setting up Y’s new provision;
• Miss X had the right to appeal to the SEND Tribunal; and
• Miss X’s complaint was upheld and it gave the Ombudsman’s details if she remained unhappy.
58. In late January 2025 Miss X appealed Sections F and I of Y’s EHC Plan of late December 2024 to the SEND Tribunal.
59. Miss X remained unhappy with the Council’s stage two response and complained to us.

Enquiries

60. In response to my enquiries the Council said it had put in place training in the following areas:
• phase transfer process SEND training;
• bi-weekly case work support sessions with SEND case officers;
• SEND Multi-agency Panel via EHC Hub;
• EHC Plan writing training;
• SEND Multi-agency Panel on decision making, council views, placement, EOTAS and funding;
• annual review process training;
• SEND case work officers Independent Provider of Special Educational Advice (IPSEA) Training;
• SEND service mediation training;
• SEND case work officer statutory duty training; and
• communication and co-production training.

My findings

61. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.

EHC needs assessment

62. The Council initially decided not to carry out an EHC needs assessment for Y but following additional evidence the Council decided to carry out the assessment in early December 2023. To be in line with the statutory timescales the Council should have decided within 14 weeks whether to issue Y with an EHC Plan, by mid- March 2024. A Multi-agency Panel made the decision to issue Y with an EHC Plan in early April 2024 and Y’s draft Plan was issued six days later which was a delay of approximately three weeks and was fault but it did not cause Miss X a significant injustice because Y’s EHC Plan was being progressed.
63. Y’s final EHC Plan should have been completed by late April 2024. Y’s final EHC Plan was issued in early May 2024. There was an overall delay of approximately two weeks which was fault but this short delay did not cause Miss X a significant injustice.

Section 19 January 2024-early May 2024

64. The Council said Y remained on roll at School 2 between January 2024 and mid-October 2024 and education was available to them. It said it was not made aware Y was not receiving an education by School 2 although Y’s attendance had declined. Y was put on a part-time four-hour timetable per day from January 2024 to May 2024. The Council was undertaking Y’s EHC needs assessment and Y’s needs were being assessed in this period. We would not expect the Council to have done anything more and it was not at fault between January 2024 and early May 2024.

Section 19 mid-May 2024-late December 2024

65. In May 2024 the Council agreed to put Y on a reduced part-time timetable for one hour a day. It said this would be reviewed and extended on a fortnightly basis. There are no records of this monitoring and no evidence of any meetings to discuss and assess Y’s one hour per day education and if it was working. The Council needed to see if the one hour a day timetable worked and from June 2024 onwards there should have been a meeting to discuss why Y was not able to attend School 2 on a regular basis and if any additional arrangements could have been put in place alongside School 2. This continued into the Autumn term 2024 when Y only received two hours of education at School 2. The Council agreed EOTAS in early October 2024 but did not provide a package, even though Miss X and Y visited possible placements and Y was happy to attend one of them.
66. The Council’s failure to review arrangements for Y’s education and make a timely decision on whether they needed extra educational provision outside school is fault. Part-time timetables for children of compulsory school age are acceptable only as a short-term solution. In early May 2024 the Council knew the timetable introduced by School 2 from the beginning of the year was not working and had to be further reduced. At this point the Council should have decided whether Y needed other educational arrangements to ensure they accessed suitable education.
67. If the Council had made its decision, I consider on the balance of probabilities it would have found Y could access alternative provision. This is because in the autumn term 2024 Miss X found a suitable provider who was ready to deliver education to Y. Y’s needs did not change between the summer and autumn term of 2024.
68. The Council’s fault caused injustice to Y and Miss X. Y’s lost education between June 2024 and late December 2024. Because of Y’s academic abilities the loss of education would have been particularly detrimental for them. Miss X was increasingly frustrated by the lack of educational support for Y. She made every effort to help Y attend school which showed her commitment and was distressed by the Council’s delays.

Section F provision

69. Y was on a one hour a day timetable from May 2024 to mid-October 2024. Y was not always able to attend the one-hour session due to their anxiety of attending School 2 and did not receive their Section F provision, although Y was academically capable. This was fault and meant Y did not receive education to which they were entitled.
70. The Council initially agreed EOTAS and issued a final amended Plan in mid-October 2024 but a package was not agreed and was then taken away because the Council missed the step of consulting schools. This mistake meant Y did not receive their Section F provision between mid-October 2024 and late December 2024 this was fault and Y again missed education to which they were entitled.

Decision letters

71. The Council failed to send Miss X decision letters in early May 2024 and mid-October 2024 to explain it was issuing a final EHC Plan for Y.
72. This was fault and meant Miss X was not advised of her appeal rights. This fault did not cause Miss X an injustice because she used mediation in summer 2024 and she was unlikely to wish to appeal the October 2024 Plan because it included EOTAS which is what she wanted for Y.

Reassessment

73. The Council said it was agreed in the mediation in July 2024 that additional EP advice would be sought. It said there was not a formal full request for a reassessment. The Council considered the new EP advice and reviewed Y’s EHC Plan. There was no fault in the Council’s actions.

Communication

74. The Council was at fault when it initially told Miss X it would provide Y’s draft Plan on 20 September 2024 and did not do so until 10 days later. This did not cause Miss X a significant injustice. The Council was at fault when it agreed Y would receive EOTAS and asked her to visit prospective providers, it then reconsidered its EOTAS decision. Its poor communication on this issue was fault and caused Miss X confusion, frustration and uncertainty. This also happened at a time when Miss X and her family were going through a difficult time. The Council has already apologised and put new communication training in place. It has also agreed to take action to make a symbolic payment to Miss X.

Service Improvements

75. The Council has already put in place staff training on a wide range of SEN areas explained in paragraph 60 above. The Ombudsman will monitor the steps taken through our case work. In addition, the Ombudsman has already made service recommendations to this Council on similar cases including regularly reviewing part-time timetables and reminding staff about the Council’s Section F provision duties and importance of effective communication. These service improvements were made during and since the events in this investigation. On this basis no further recommendations were needed.

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Action

76. Within one month of the final decision the Council will:
1. apologise and pay Miss X £2,250 to acknowledge her distress when Y did not receive educational provision between June 2024 and late December 2024, and the impact of Y’s lost Section F provision between May 2024 and late December 2024. This remedy was calculated at £1,500 per term, in line with the Council’s guidance on remedies and considered Y’s circumstances at the time. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance when making the apology; and
2. pay Miss X a total of £250 to acknowledge her confusion, frustration and uncertainty over poor communication on Y’s EOTAS provision.
77. The Council will provide us with evidence it has complied with the above actions.

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Decision

78. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused. The Council has already put service improvements in place.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman