Summary: The Council delayed enrolling Ms X’s child to their new school following the Tribunal order, but this was not the fault of the Council. The Council properly considered the education provided after the Tribunal was suitable. The Council accepted it was at fault for poor communication and delay responding to Ms X’s complaint and has offered a suitable remedy for this.

The complaint

1. Ms X complained the Council delayed following a Special Educational Needs and Disability Tribunal order that said her child, C, was to attend a specific school and failed to provide alternative education when they could not attend school in the meantime. Ms X also complained of poor communication and said the Council wrongly refused to conduct an Educational Psychologist reassessment.
2. Ms X said this caused distress to her and C. Ms X would like the Council to confirm a start date at C’s new school and provide alternative education while waiting for the placement to start. She also wants the Council to arrange an urgent reassessment by the Educational Psychologist. Ms X wants the Council to recognise the impact of the delay on her family and offer compensation and to ensure this doesn’t happen again in the future.

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The Ombudsman’s role and powers

3. 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.
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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)

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What I have and have not investigated

6. I have not investigated Ms X’s complaint about the Council’s refusal to agree C needed a reassessment by an Educational Psychologist. This is because Ms X raised it with the Tribunal. It is therefore outside the Ombudsman’s jurisdiction.

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How I considered this complaint

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. Ms 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 legislation

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
10. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
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.

Appeal to SEND Tribunal

12. 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)
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. 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.

After a Tribunal appeal

14. The order from the Tribunal is binding on the Council.
15. The Council has a time limit to carry out what the Tribunal has required it to do. The time limit to comply with an order to change an EHC Plan is five weeks from the date the Tribunal issues the order.
16. The Tribunal does not have any power to supervise how the order is carried out. If the Council does not comply with the order, the individual can complain to the Council and if they are not satisfied with the response, they can complain to the Ombudsman.

What happened

17. I have summarised below the key events; this is not intended to be a detailed account.
18. C has social, emotional and mental health challenges. From September 2023, C was on the roll at a specialist learning centre where they accessed online learning.
19. The Council updated C’s Education, Health and Care (EHC) Plan in February 2024. Section I of the Plan said C would continue to attend the specialist learning centre where they were on roll.
20. Ms X was not satisfied with the Plan and appealed to the Tribunal. Ms X asked the Tribunal to name a different primary school.
21. The Tribunal issued an order within the first week of February 2025. It required the Council to amend section I and name the specific primary school sought by Ms X. The order suggested a “careful plan to transition back into school”.
22. The Council amended the EHC Plan and issued it at the end of February.
23. C stopped attending their online education sessions with the specialist learning centre after the Council issued the EHC Plan in February 2025. After not attending a session, C’s tutor emailed Ms X and asked if they had technical difficulties accessing the session. Ms X responded and said they had received the new EHC Plan which named the new primary school. The tutor explained they would continue to provide online learning until C started at the new primary school. Ms X said this was not necessary.
24. In early March, the head teacher at the new school emailed Ms X. They said they were identifying and training a team of people who would support C in the new school and were working towards a start date for C. The head teacher asked Ms X if they could meet with her and C offsite, to help with the transition. They exchanged several emails and could not find an agreeable date and time.
25. The headteacher at the new school offered Ms X online tutoring and speech and language therapy support online for C during this time, before they started at the new school. Ms X declined as she felt online facilities were not suitable for C.
26. The new school drafted an integration timetable for C. This was to start online in late March. Ms X declined the online offer. Ms X and C met with staff from the new school at the beginning of April in a local library.
27. C was officially on the roll at the new school in the first week of May.

The complaint

28. Ms X complained to the Council in late January. The Tribunal dealt with several parts of the complaint; these are therefore outside our jurisdiction. The part of Ms X’s complaint we can investigate is delay and the Councils failure to provide education following the Tribunal.
29. The Council issued a stage one response in early March and a stage two response in late March. The Council did not uphold Ms X’s complaint about failing to provide alternative education for C after the Tribunal. It explained it issued the EHC Plan which named the new school within the five-week deadline required by the order.
30. The Council explained C’s previous school continued to offer support online until they started at the new school. It accepted this was “not an ideal set up, [but] it does offer continuity and routine…”.
31. It explained the transition to the new school was under way, and it needed to manage this carefully. The new school was recruiting new staff and was engaging with C gradually. It said this was important as C finds it difficult to engage with unfamiliar staff and it was “unrealistic that [C] would start at [their] new setting full time straight away…”
32. The Council upheld Ms X’s complaint about poor communication and said this could have been better. It offered a remedy of £250 for poor communication. It also offered £150 for delay in responding to Ms X’s complaint.
33. Ms X complained to us in April 2025. She said the Council failed to follow the Tribunal order and refused to provide alternative provision for her child, leaving them without education or therapy.

Analysis

Updating the Education, Health and Care Plan

34. The timeframe for the Council to follow the Tribunal order is five weeks. The Tribunal made the order at the beginning of February which required the Council to update the EHC Plan with the name of the new school. The Council updated the EHC Plan at the end of February. This was within the five weeks timescale. The Council was not at fault.
35. While the Council updated the plan within the timescales, C was not on roll and attending the new school until the beginning of May. Initially, this was because the new school needed to recruit and train staff to support C. While this caused a delay, it was outside the Council's control. The Council was not at fault.
36. Subsequently, the new school planned a gradual transition for C by arranging for staff to meet Ms X and C offsite in a neutral location before gradually introducing them to the new school environment. This was part of the “careful plan to transition back into school” the Tribunal directed in its order. The transition was deliberately gradual as ordered by the Tribunal. The Council was not at fault.
37. The Council was aware Ms X not satisfied with the education S was receiving when she complained in January 2025. As part of the complaint response, the Council considered whether the education offered following the Tribunal was suitable. It highlighted the importance of a smooth and gradual transition to the new school and continuing the previous online tuition whilst this took place. It said it would not be suitable to introduce new staff to S during this time. The Council properly considered the education that was offered to S and concluded this was satisfactory. It is not at fault.

Communication

38. The Council upheld Ms X’s complaint about poor communication and said this could have been better. I agree the Council was at fault and this caused Ms X frustration. The Council offered a remedy of £250.
39. The Council also accepted it had not responded to Ms X’s complaint in time. This was fault and caused Ms X further frustration. The Council offered an extra £150 to recognise that injustice. These are suitable remedies and are in line with our guidance on remedies.

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Action

40. Within four weeks of my final decision, the Council should pay Ms X the remedies it offered in its complaint response, as set out in paragraph 38 and 39 above.

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Decision

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

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Investigator's decision on behalf of the Ombudsman