Summary: Miss X complained the Council delayed issuing an Education, Health and Care Plan to her son following a review. Miss X also complained the Council failed to ensure her son received the required special educational provision while he was attending school and failed to ensure he received appropriate education for the period he did not attend school. Miss X says the Council’s actions caused avoidable distress to her and her son. We found some delay by the Council. The Council has agreed to apologise to Miss X for the fault identified.

The complaint

1. Miss X complained the Council delayed issuing an Education, Health and Care Plan to her son following a review held in June 2024. Miss X also complained the Council failed to ensure her son received the educational provision set out in his Education, Health and Care Plan while he was attending school, and failed to ensure he received appropriate educational provision for the period he was not attending school. Miss X says the Council’s actions caused avoidable distress to her son and meant he missed opportunities to develop educationally and socially. She says the Council’s actions also caused avoidable distress to her. She would like the Council to implement the provision specified by the Education, Health and Care Plan, provide an apology and a financial remedy and make service improvements to avoid a recurrence of the same issues.
2. Miss X also complained about the actions and decisions taken by her son’s school.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. 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.
8. 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)
9. 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)

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What I have and have not investigated

10. I have investigated the complaint referred to in paragraph one dating back to March 2024. I have not investigated the period prior to this date as this relates to a late complaint. I consider there are no good reasons to exercise discretion to investigate events prior to March 2024.
11. I have not investigated the complaint referred to in paragraph two as this relates to the actions and decisions made by the school.
12. 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

13. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
14. Miss X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care Plans

15. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This 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. 
16. 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) 
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the Tribunal.
18. 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)  

Alternative provision

19. Councils 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 education provision.
20. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

21. The amount of information provided as part of this investigation was considerable. In this decision statement, I have not made reference to every element of that information, but I have not ignored its significance. This chronology includes key events in this case and does not provide details of everything that happened.
22. The Council issued an EHC Plan to Miss X’s son, Y, in December 2023. At that time, Y attended a mainstream school (School A) with a specialist resource base. The EHC Plan acknowledged Y’s diagnosis of autism and set out the provision required. This included the provision of teaching assistants, support from an emotional literacy support assistant (ELSA), support from a mentor, and attendance at social skills groups. The provision also specified that school staff would find ways of helping Y reflect and evaluate and would not admonish for unintentional errors.
23. In March 2024, Miss X contacted the Council with concerns about Y’s education at School A. Miss X acknowledged that Y had a teaching assistant in every lesson and access to the specialist resource base. However, Miss X said there had been little improvement regarding Y’s education and he continued to face challenges at school. Miss X said she considered School A was not providing the necessary support to Y.
24. The Council replied to Miss X on the same day. It suggested carrying out an interim review of Y’s EHC Plan or a meeting to discuss Miss X’s concerns. At the same time, the Council contacted School A to arrange a meeting.
25. In June 2024, School A temporarily excluded Y from school.
26. Miss X notified the Council regarding Y’s temporary exclusion. She said she considered it was apparent that Y had not received the support he needed, and that School A had failed to follow the EHC Plan.
27. The Council acknowledged Miss X’s concerns. It said it could discuss the provision made to Y as part of an emergency EHC Plan review arranged for late June 2024.
28. A few days later, Miss X told the Council School A had informed her that Y should attend an alternative educational setting, School B, for the remainder of the academic year. School B is an independent school offering alternative education provision.
29. Miss X says Y did not attend School B; she considered School B was not a suitable placement and did not have the resource space for pupils with autism.
30. Miss X appealed School A’s decision to temporarily exclude Y. She said the EHC Plan outlined specific strategies and support to help manage Y’s behaviour and emotions. Miss X said School A’s failure to adhere to these provisions directly contributed to the situation that led to Y’s exclusion.
31. At about the same time, the Council undertook an emergency review of Y’s EHC Plan. The review considered that Y required a new educational placement at a specialist setting. The Council agreed to consult with other schools regarding a placement.
32. School A arranged online home tuition for Y to start on 1 July 2024.
33. Around this time, Miss X told the Council she did not want Y to return to School A; she said Y was more comfortable at home and she preferred the online tuition that was in place.
34. The online home tuition continued until the end of the academic year. During this time, the Council consulted with alternative schools. The Council says despite the consultations, it was unable to name a new school for Y.
35. On 28 August 2024, the Council provided its decision letter following the emergency annual review. The Council said it considered the EHC Plan did not require any amendments; it made no recommendations for any changes to Y’s outcomes, provision or school placement. The Council informed Miss X of her right to appeal this decision to the Tribunal.
36. Y remained on School A’s roll in September 2024, and School A continued to provide online home tuition.
37. In late September 2024, School A provided its decision regarding Miss X’s appeal against Y’s temporary exclusion. School A said its panel considered there was insufficient evidence to show it had failed to comply with the EHC Plan. School A concluded it had handled the matter correctly.

Miss X’s complaint

38. Miss X complained to the Council in October 2024. She said the Council had failed to provide the support outlined in Y’s EHC Plan, including 1:1 sessions with ELSA trained staff, mentoring and access to social skills groups. Miss X also said she had not received a revised version of the EHC Plan following the review held in June.
39. School A provided a complaint response on 8 November 2024. It said Y received ELSA support as well as access to social skills sessions and mentoring. School A provided a breakdown of the support it said was provided to Y.
40. The Council provided its complaint response on 11 November 2024. It acknowledged School A’s response and said it considered Y was supported in line with the requirements of the EHC Plan. The Council said it notified Miss X in August 2024 that it would not be amending the EHC Plan at that time; it said it would amend the plan once it confirmed the next school placement. The Council said it had sent consultations to several schools but to date, no school had confirmed they could meet Y’s needs. The Council said the consultation process was ongoing.
41. Miss X escalated her complaint to stage two on 13 November 2024. She said the breakdown of provision was inaccurate and Y had not received several of the provisions set out in the EHC Plan. Miss X said the online home tuition package in place at that time did not meet the full scope of the EHC Plan.
42. In December 2024, the Council took over the delivery of the online home tuition package. It also started taking steps to amend the named education placement in the EHC Plan following an incident involving Y. On 5 December 2024, the Council notified Miss X that it intended to amend the EHC Plan.
43. The Council provided its stage two complaint response on 17 December 2024. It acknowledged the process had been very stressful for Miss X and Y and said it could amend the EHC Plan when it had secured a new school placement.

What happened next

44. The Council issued an amended final EHC Plan on 7 January 2025. The plan stated Y required a placement at a specialist school, with the exact setting to be confirmed.
45. In January 2025, Y received an offer of a placement at an independent specialist school, School C. Miss X informed the Council in February 2025 that she wished to decline the offer.
46. Miss X remained dissatisfied with the Council’s complaint response and brought her complaint to the Ombudsman.
47. In May 2025, Miss X appealed to the Tribunal.

Analysis – delays following the review held in June 2024

48. The Council says the only delay was in relation to the issuance of the decision letter following the emergency review held on 26 June 2024. It says this delay was due to the school not sending the annual review report to the Council within the prescribed timeframe.
49. It is positive the Council has itself identified the delay in issuing the decision letter to Miss X. The statutory guidance says the Council should have provided this within four weeks of the review meeting; the evidence shows the Council took longer than this.
50. I acknowledge the Council’s comments that the school incurred delays, and that the period in question was during the school summer holidays. However, the SEN Code of Practice is clear regarding the timescale for notifying parents following an EHC Plan review. As the Council did not provide its decision within the specified timeframe, the delay identified is fault.
51. I acknowledge the Council considers the delay did not cause an injustice because Miss X did not appeal the decision. However, the evidence shows Miss X chased a response from the Council on two occasions following the review date. This demonstrates uncertainty and frustration caused by the delay; this is an injustice to Miss X.

Provision to Y while he was attending School A

52. As previously stated, the Council has a duty to make sure Y receives the provision set out in his EHC Plan (Section 42 Children and Families Act). 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 for every pupil with an EHC Plan. However, 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. 

53. Y was attending School A until mid-June 2024. The EHC Plan in place at that time was the plan dated December 2023.
54. Miss X says Y did not receive 1:1 ELSA support. However, the EHC Plan does not specify 1:1 support of this type; it simply refers to Y being supported by ELSA to explore different emotions and understand how to manage them. The Council confirms Y had access to the specialist resource base which employed ELSA trained staff. This is also acknowledged by Miss X in her email to the Council dated 26 March 2024.
55. Miss X says Y did not receive provision regarding mentoring and access to social skills groups. However, the information provided in response to my enquiries does not support this view. School A has provided details of the provision made to Y while he was attending, and this indicates Y received the SEN provision specified by the EHC Plan. Whilst I acknowledge Miss X’s comments, I have seen no evidence to demonstrate missed provision.

Educational provision whilst Y was not attending School A

56. School A offered Y a placement at School B with effect from 24 June 2024. This was offered as an alternative to permanent exclusion and Y remained on the school roll at this time. The Council says School B is trained to support students with autism; it says School B offers individualised education packages tailored to the specific needs of students.
57. Miss X declined the placement at School B as she considered it was not suitable. I acknowledge the reasons stated by Miss X for this decision. As Miss X declined the placement, School A arranged 1:1 online home tuition instead.
58. The Council says Y’s 1:1 tutor provided all required SEN provision except for ELSA support and social skills group access. It says however, this could have been provided to Y had he attended School B, and later, School C.
59. In order to demonstrate the Council appropriately considered its section 19 and section 42 duties, we would expect the Council to:
• Demonstrate it considered there was an available and accessible placement for Y
• Demonstrate it checked the SEN provision was in place, and
• Quickly investigate and act on any concerns raised.
60. The evidence shows the Council arranged an emergency review of the EHC Plan following the initial concerns raised by Miss X. Following the review, the Council decided to keep the EHC Plan as it was, without any changes to the school setting. This indicates the Council considered the placement remained available and accessible to Y. This, and the offer of a placement at School B and School C, indicates the Council had due regard to its section 19 duties.
61. The Council says it provided as much of the SEN provision as it could as part of the 1:1 online home tuition. It says the remaining provision was available to Y had Miss X accepted the offer of the placements at School B and/or School C.
62. I acknowledge the comments from both parties. The evidence indicates the Council addressed Miss X’s concerns and arranged an emergency review of the EHC Plan. The evidence also indicates the Council checked what provision was in place as part of the review process and as part of its complaint investigation. It considered the provision set out in the EHC Plan was made to Y, although I acknowledge that Miss X disagrees with this conclusion. The Council offered placements that it considered were available and accessible and could provide all the SEN provision set out in the EHC Plan. As a result, the evidence shows the Council discharged its section 19 and section 42 duties. For this reason, the Council is not at fault regarding this aspect of the complaint.

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Action

63. To address the injustice caused to Miss X as a result of the fault identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Miss X. 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 in making the apology I have recommended in my findings, and
2. Ensure the Council has a process in place to monitor responses from schools following reviews of Education, Health and Care Plans, to ensure review reports are provided to the Council within the prescribed timeframe.
64. The Council should provide us with evidence it has complied with the above actions.

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Decision

65. I have found fault causing injustice. The Council has agreed to take the above action to remedy the injustice and I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman