Summary: The Council was at fault for not updating Y’s Education, Health and Care (EHC) Plan within the statutory timescales following a Tribunal order but this did not cause Y an injustice because they were already on roll at the educational placement. The Council was not at fault for failing to secure Y’s section F provision and not at fault for failing to provide suitable alternative provision when Y could not attend school, in the investigation period.

The complaint

1. Ms X complained the Council failed to secure her child, Y’s, section F provision set out in their Education, Health and Care (EHC) Plan, failed to provide suitable education when Y could not attend school and then provided unsuitable education and support for Y and communicated poorly. Ms X said it caused her distress and anxiety, causing her to take time off work and chronic stress and Y was not provided the education to which they were entitled.

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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 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 s34H(1), as amended).
3. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), 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 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.
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. 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

9. As explained in paragraph four above we cannot investigate late complaints unless we decide there are good reasons. Ms X complained to the Ombudsman in late February 2025 about events starting in January 2024. I have decided to investigate the period from mid-January 2024 when a Tribunal order was issued because this was relevant to the subsequent events that are not late.
10. Ms X had a right of appeal to the special educational needs and disabilities (SEND) Tribunal when Y’s final amended Education, Health and Care (EHC) Plan was issued in late May 2024, a right she exercised.
11. The courts have established that if someone has appealed to the SEND 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).
12. 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.
13. 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.
14. The appeal was linked to Ms X’s complaint about Y missing out on education and special educational provision. There was a dispute between the Council, who considered Y’s needs could be met in their school if they attended and Ms X. Ms X appealed provision in section F of Y’s EHC Plan because she considered without SALT and OT Y could not access education in their school. At a later stage she also contested Y’s school placement and asked for the Education Otherwise than at School (EOTAS) package for them. As the lack of educational support for Y, which Ms X complained about, was the consequence of the dispute about special educational provision and a school placement, I cannot consider Ms X’s complaint about those matters during the appeal period. My investigation therefore ended in late May 2024.

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How I considered this complaint

15. I considered:
• the information Ms X provided and spoke to her on the telephone;
• the information the Council provided in response to my enquiries; and
• relevant law and guidance, as set out below.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

17. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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 or young person special educational needs. Section F sets out the special educational provision needed by the child or young person. Section I is the name and/or type of school/college.

Appeal rights to the SEND Tribunal

18. 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.
19. Section 44 (e) of the Special Educational Needs and Disabilities (SEND) Regulations 2014 requires councils to amend the special educational provision specified in an EHC Plan, the council will issue the amended EHC Plan within five weeks of the Tribunal order being made.

Maintaining the EHC Plan

20. 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).
21. 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.

Section 19 duty

22. 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. (Education Act 1996, Section 19). We refer to this as section 19 or alternative provision.
23. 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’).
24. 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.

What happened

25. Y has special educational needs including anxiety that affect the way they communicate and manage social situations which causes a physical symptom.

Background

26. Y attended a mainstream middle school, School 1. Y struggled to attend School 1 in the 2022 summer term and developed physical symptoms which meant they were unable to attend School 1. The period between 2022 and July 2023 was considered in a previous complaint Y’s mother, Ms X, brought to the Ombudsman.
27. Y’s first Education, Health and Care (EHC) Plan was issued in early July 2023 and section I named a mainstream middle school, School 1. The key parts of section F in Y’s July 2023 EHC Plan included the requirement for Y to receive:
• one to one support three times a week to develop key language relating to different emotional states and help with communication;
• daily support from a trusted adult to support at the start and end of the school day, for information processing, numerical skills, literacy skills and self-help strategies to manage anxiety;
• consistent one to one support once a week to engage in a social skills programme and daily consistent one to one support to enhance social skills; and
• intervention and support by an occupational therapist (OT) as required to support sensory processing difficulties.
28. Ms X appealed to the Special Educational Needs and Disabilities (SEND) Tribunal about Y’s July 2023 Plan against sections B, F and I. Y started to attend a special school, School 2 in September 2023. Y slowly integrated into School 2 in the autumn term 2023 with the aim of building up to full-time education. At the end of the Autumn term 2023 an incident occurred with Y which increased their school-based anxiety.
29. In late December 2023 Ms X and the Council requested for a consent order to be issued by the Tribunal which would conclude Ms X’s appeal.

Mid-January 2024 onwards

30. In mid-January 2024 the Tribunal order was issued. By consent it ordered the Council to amend section I of Y’s EHC Plan to name School 2.
31. Y found returning to School 2 in the spring term 2024 more challenging. Ms X said in January 2024 Y stopped attending School 2 due to their increased school-based anxiety and associated physical reactions. Ms X said Y did not receive any education or section F provision from January 2024.
32. School 2 said Y attended school in January and February 2024 but after February 2024 Y only attended twice. School 2 said it tried to re-engage Y back to school which was unsuccessful. School 2 said Y was unable to access any form of education but it had sent work home for Y to complete, offered remote online learning, offered Y to be taught in smaller groups, offered Y to attend school to meet a staff member. School 2 said these options were repeatedly offered to Y when they were physically not well enough to attend school. School 2 said it remained in regular contact with Y and conducted remote safeguarding calls but Y struggled to engage with these for more than a few minutes.
33. In early 2024 School 2 made a referral to an Occupational Therapist (OT). Ms X also commissioned speech and language therapy (SALT) and OT reports due to Y’s sensory difficulties.
34. In late February 2024 School 2 held Y’s Annual Review. Y’s Annual Review report said since Y had joined School 2 they had integrated well and were building up to a full-time timetable. It said Y had good attendance in the autumn term 2023 but found returning to School 2 in the spring term 2024 ‘more challenging’. The annual review record recommended amendments should be made to Y’s EHC Plan following a change in placement to School 2, as directed by the Tribunal order. School 2 and Ms X were in agreement with this. The annual review paperwork was sent to the Council the next day. In response to my enquiries the Council said it did not have a record of being invited to Y’s annual review meeting and was not made aware at this point that Y had stopped attending school.
35. In mid-March 2024 an OT, commissioned by Ms X, carried out an assessment of Y. The assessment concluded Y needed regular therapeutic support due to their sensory processing delay and inability to self-regulate which would impact on their ability to engage with the school environment. It recommended amendments to Y’s physical and sensory special educational needs and provision.
36. A week later an NHS OT carried out Y’s assessment. Y was unable to join the video call assessment and the OT spoke to Ms X. At the assessment Ms X reported Y had not attended school recently as they were feeling anxious and experiencing physical difficulties, Y was planning on slowly starting with attending an exercise class and Y spent most of their time at home and they struggled with communication and relationships. The OT recommended adults at home and school supported Y to engage in sensory based activities, monitored how Y reacted to new activities, monitored the effectiveness of a sensory diet. It said it would offer a follow up video call in June 2024 to discuss progress and provide any further advice.
37. Y was assessed by a SALT, commissioned by Ms X. The SALT said Y had significant communication and social communication difficulties, difficulties with friendships and processing skills. The SALT recommended specialist weekly direct support from a SALT and experienced school staff in groups and one to one sessions.
38. In early April 2024 the Council wrote to Ms X with a decision letter to amend Y’s EHC Plan following the annual review. It also sent Ms X a copy of Y’s draft EHC Plan.
39. Two days later the Council received documents from Ms X as part of her response to Y’s annual review. Ms X told the Council Y had not returned to School 2 since January 2024. The Council said it was not informed by Ms X or School 2 that Y had stopped attending School 2 until this document was received. Ms X also informed the Council the SALT and OT reports highlighted unmet needs which she believed was why Y could not access School 2. She said School 2 was the right academic setting but SALT and OT provision also needed to be included in Y’s EHC Plan so they could access education. School 2 said Y stopped attending school in April 2024.
40. In mid-April 2024 the Council emailed Ms X and explained it was exploring how it could include the SALT and OT recommendations into Y’s EHC Plan and health services had been engaged to address any identified gaps. It was also considering opportunities for Y’s educational provision to be provided at home.
41. In late May 2024 the Council issued Y’s final amended EHC Plan. Section I named School 2. It also gave Ms X her appeal rights which she exercised. Ms X appealed section B and F of Y’s Plan. She was unhappy the Council did not include the SALT or OT recommendations into Y’s final amended EHC Plan. Later section I was also included as part of the appeal.

Enquiries

42. In response to my enquiries the Council said it was not aware Y stopped attending School 2 until early April 2024. It said Ms X and School 2 worked together and Ms X maintained confidence in Y’s placement at School 2. It said Y’s absence at School 2 was medically based not due to dissatisfaction in provision and health services were engaged to identify gaps in provision. It said it could not take action until it was made aware Y was out of school.

Complaint

43. In late October 2024 Ms X made a formal complaint to the Council. She said Y had no education for the past 10 months, their health had worsened because of no appropriate support and no alternative provision in place and it had impacted on her health too.
44. In early December 2024 the Council responded to Ms X’s stage one complaint. It said School 2 had not raised Y’s needs could not be met, an OT referral was made in early 2024 by School 2 and an assessment was completed in mid-March 2024. It said School 2 was still named in Y’s EHC Plan and School 2 should support Y in accessing education and delivering the provision in their Plan. It said if the school needed more support it could request it. It also set out the Council’s SEND Regulations and Code responsibilities and included information outside this investigation period.
45. Ms X was unhappy with the Council’s stage one response. She had concerns around the Council’s failure to provide alternative education for Y and the Councils response around its responsibilities for the delivery of Y’s EHC Plan. In early December 2024 she escalated her complaint to stage two of the Council’s complaint process.
46. In mid-February 2025 the Council sent Ms X its stage two response. It said the stage one response accurately reflected the situation and the local authority acted within its responsibilities.

My findings

Delay after the Tribunal Order

47. The Council should have issued Y’s final amended EHC Plan within five weeks of the SEND Tribunal order and by mid-February 2024. The Council issued Y’s final amended EHC Plan in late May 2024, which was a delay of approximately 15 weeks and was fault. However, the delay did not cause Y an injustice because they were already on roll at the school named in the Tribunal order and the Tribunal order did not recommend any amendments to section B or F of Y’s EHC Plan.

Section 19 and section 42 provision

48. In the autumn term 2023 a part-time transition plan was implemented for Y at School 2 to re-engage them with education. This initially worked well, but in January 2024 Y found attending School 2 more challenging after an incident involving Y. There is a difference of opinion when Y stopped attending School 2. Ms X said Y stopped attending School 2 from January 2024, School 2 said Y attended school in January and February 2024 and then only attended school twice and did not attend from April 2024. Y’s annual review record from late February 2024 said Y found attending school more challenging but did not say Y had stopped attending. On the balance of probabilities Y stopped attending School 2 after February 2024.
49. The evidence shows School 2 worked with Ms X and Y and tried different options to re-engage Y with education when Y did not attend school because of health reasons. School 2 offered to send work home for Y, offered online learning, offered small group sessions and meeting a staff member at the school. It also conducted regular safeguarding calls. It tried to re-engage Y back into education and Y’s classroom based provision which were unsuccessful but School 2 and the alternative options remained available to Y. School 2 was a placement the Tribunal considered was suitable for Y just two months earlier. In addition Ms X did not dispute School 2’s suitability for Y at that point either.
50. The Council said it was not aware, until Ms X told it in early April 2024, that Y was not attending School 2. The evidence shows approximately a week and a half later the Council started to consider providing alternative provision, it was also starting to consider the SALT and OT recommendations made and was working on Y’s final amended EHC Plan which the Council issued in late May 2024. This period was not long enough to amount to fault in relation to section 19 and section 42 provision, as the Council normally needs some time for making decisions on alternative provision and further time to make necessary arrangements for alternative provision. We would normally allow the Council up to six weeks to decide and make arrangements for alternative provision and part of this period was in the Easter holiday and May half term holiday.
51. Ms X had appeal rights to the SEND Tribunal about the provision and placement named in Y’s final amended EHC Plan dated late May 2024. Ms X initially appealed sections B and F and later extended her appeal to section I. For the reasons set out in paragraph six above and paragraphs 10-14 above, I have not investigated what happened after Ms X appeal rights arose. Ms X considered without SALT and OT input Y could not access an educational placement because of that the appeal was too closely linked to Ms X’s complaint about Y missing out on education and special educational provision. Therefore, I could not consider Ms X’s complaint about those matters during the appeal period.

Communication

52. Ms X complained about poor Council communication. Some of her complaint was outside of this investigation period. Considering the communication from the Council in the investigation period relevant evidence showed it responded to Ms X’s concerns about Y being out of education and the SALT and OT assessments in emails. The Council was not at fault within the investigation period.

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Decision

53. I have completed my investigation finding fault not causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman