Summary: The Council failed to keep adequate oversight of child Y’s part time educational arrangement between September 2024 and April 2025 or consider whether to put alternative provision in place. It also failed to ensure Y received the specialist provision in their Education, Health and Care (EHC) Plan between February and April 2025. I could not investigate Y’s loss of specialist provision between September 2024 and February 2025 as Miss X had appealed Y’s EHC Plan to the SEND tribunal. The Council agreed to make a payment to acknowledge the impact the fault had on Y’s education.

The complaint

1. Miss X complained the Council failed to ensure her child, Y received a suitable education or the specialist provision in their Education, Health and Care (EHC) Plan between September 2024 and April 2025. Miss X said Y was only attending their named school for two hours a day with no other alternative provision in place.
2. Miss X said Y missed out on education which has affected their academic and social development.

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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. 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)
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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How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X 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

Relevant law and guidance

EHC Plans

8. 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.
9. 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)
10. 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.

Alternative provision and the Section 19 duty

11. 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. [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 education provision.
12. 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

SEND tribunal

13. 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.
14. 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.
15. 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.
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. 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.
18. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
19. We cannot trespass in any way on the jurisdiction of the tribunal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 2
20. Where the tribunal orders the Council to amend the content of the EHC Plan to substitute the name of the educational placement in Section I then the Council must issue the amended Plan within two weeks of the order.

What happened

Background

21. Miss X has a child, Y who is of primary school age. Y has special educational needs and an EHC Plan. Y began in reception in September 2023 and attended a mainstream primary school, School Z. Y’s first EHC Plan was issued in October 2023 and then the Council issued an amended version in January 2024. This Plan named School Z in section I with a ‘transfer to a special school that meets the needs of pupils with moderate learning difficulties when identified by the Local Authority’.
22. During the 2023/2024 academic year Y attended School Z on a part time basis only for no more than two to three hours each day. Miss X wanted Y to attend School Z for longer but nothing was done to increase their hours and Y was usually isolated from their peers in a classroom on their own.
23. Miss X complained to the Council and then to us about its failure to ensure Y received a suitable education or the specialist provision outlined in the EHC Plan. We considered this complaint in a separate investigation.
24. In March 2024 Miss X appealed to the SEND tribunal about Y’s EHC Plan, specifically the naming of School Z in section I. Y however continued attending School Z.
25. Our previous investigation found the Council at fault for failing to ensure Y received the specialist provision in the EHC Plan during the 2023/24 academic year and for not having sufficient oversight of the part time arrangement at School Z. The Council agreed to make payments to Miss X to acknowledge Y’s loss of education.
26. This investigation focuses on the 2024/25 academic year from September 2024 after Miss X made a new complaint about the same issues.

September 2024 onwards

27. Y continued attending School Z from September 2024 onwards in year one as the Council had not found a specialist setting and Miss X’s tribunal case had not yet been heard. Y continued attending on a part time basis of around two hours a day.
28. Miss X wrote to the Council in late September and early October 2024 raising concerns that Y was still only receiving a very small number of hours education on a part time basis. Records show School Z told the Council it had a transition plan to increase hours. The Council told School Z that Y’s part time arrangement needed reviewing with urgency.
29. In September 2024 Miss X asked the tribunal to extend her ongoing appeal to include Sections B and F of Y’s EHC Plan. Miss X said the EHC Plan did not accurately reflect Y’s needs and as a consequence Section F did not detail the necessary provision to meet Y’s needs.
30. The SEND tribunal granted Miss X permission to include Sections B and F in mid-November 2024.
31. A meeting took place in November at School Z which Council officers attended however Miss X was unable to attend. Notes of the meeting show School Z explained Y had struggled with year one after positive developments the previous year in reception. Y’s attendance so far was poor and they were unable to get into a consistent routine. The Council asked School Z to submit a new part time timetable. It is not clear whether this was ever done.
32. Miss X sent various emails to the Council to raise concerns. She raised concerns about Y’s lack of full time education as well as being unhappy with the content of the EHC Plan which she said contained inaccuracies. Miss X she wanted social care and a personal budget in the Plan. She said the Council had not considered alternative provision for Y.
33. Email records show the Council wrote to Miss X in December 2024 to address her ongoing concerns. The Council said it was trying to directly commission Occupational and Speech and Language therapy for Y. It said it agreed Y needed a specialist school and was working hard to source a placement which included School B, Miss X’s preferred choice. The Council decided it had addressed all of Miss X’s concerns and said she could complain the Ombudsman if she remained dissatisfied. It said Miss X’s concerns about the EHC Plan were being dealt with through the tribunal process.
34. Records show Y carried on attending School Z part time although there were regular instances of unauthorised absences and illness linked to Y’s poor sleeping routine.
35. In early February 2025 the SEND tribunal issued a consent order after the Council agreed to amend Y’s EHC Plan and name School B. Miss X’s appeal against sections B and F was also withdrawn. It made no recommendations to include social care in the Plan. Records show this was agreed by all parties including Miss X.
36. The Council issued Y’s amended EHC Plan at the start of March 2025. The amended Plan named School Z in section I and then School B (the special school) from the end of April onwards.
37. Y continued attending School Z on a part time basis between March and the end of April before Y then began attending School B. Records show attendance during this period was good.
38. Miss X remained unhappy and complained to us.

My findings

September 2024 to February 2025

39. The Council issued Y’s EHC Plan in January 2024 and with this came Miss X’s right of appeal to the SEND tribunal. Evidence shows Miss X used this right in March 2024 to appeal against the naming of School Z in section I. She then extended this appeal in September 2024 to include the content of the Plan in Sections B and F.
40. The core of Miss X’s appeal to the tribunal was about the Council’s decision to name School Z in the EHC Plan as she felt Y’s needs could only be met by a special school. The consequence of this meant Y was not attending school full time or receiving the specialist provision in the EHC Plan. Therefore, I cannot investigate Y’s loss of EHC Plan provision for the period September 2024 to February 2025 (when the tribunal process ended). Doing so would result in me looking at the Council’s decision to name School Z in Y’s EHC Plan and would therefore trespass on the tribunal’s jurisdiction. In line with the reasons explained in paragraphs 15-19 this period falls outside of our jurisdiction and is therefore not something I can investigate.
41. However, the Council still held a general Section 19 duty during this period. Y was attending school on a part time basis and there is limited evidence of the Council providing adequate oversight of the arrangement. Miss X consistently asked for Y’s hours to be increased and although the Council communicated and held a meeting with School Z nothing was attempted and Y’s hours were not increased. There is no evidence the Council considered whether School Z remained “reasonably practicable” for Y to access or whether alternative provision was necessary given School Z’s clear reluctance to increase Y’s hours. The failure to properly consider its Section 19 duty was fault. It leaves uncertainty around whether more could have been done to increase Y’s hours.

February to April 2025

42. Following the consent order and the conclusion of the SEND tribunal the Council issued an amended EHC Plan. The Council issued the amended EHC Plan three weeks outside of timescales which is fault. Although, given Y was not due to begin at School B until the April the short delay did not cause any injustice.
43. Following the amended Plan Y continued to attend School Z for eight school weeks before moving to School B. During this period the Council had both a Section 42 and a continuing Section 19 duty. Y remained attending on a part time basis and there is no evidence of any consideration of alternative provision or Y receiving any of the specialist provision their Plan. That was fault. It meant Y did not receive a suitable education during this period and leaves uncertainty around whether more could have been done to increase their hours.
44. Following our previous investigation we made service improvement recommendations around ensuring the Council reviewed its procedures for maintaining oversight of children not receiving full time education or provision in EHC Plans. These recommendations were made after the scope of this complaint. Therefore, I have not made further recommendations and we will monitor ongoing compliance through our casework.

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Action

45. Within one month of the final decision the Council agreed to take the following action:
46. Apologise to Miss X and pay her a total of £2000 to acknowledge the impact on Y’s education between September 2024 and April 2025 caused by the Council’s failure to have sufficient oversight of Y’s part time educational arrangement and consider putting alternative provision in place, and the distress this caused the Miss X. The payment also accounts for Y’s loss of specialist provision in line with their EHC Plan between February and April 2025.
47. 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 I have recommended.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman