Summary: Mrs B complained that the Council, in respect of her daughter C’s special educational needs, failed to send her C’s final Education, Health and Care Plan on 20 March 2024 with her right of appeal and failed to provide suitable alternative educational provision. We have found some fault in the Council’s actions. The Council has agreed to apologise to Mrs B and make a symbolic payment to her.

The complaint

1. Mrs B complained that Norfolk County Council (the Council) failed to make appropriate special educational provision for her daughter, C, or provide her with a suitable alternative education since she stopped attending school in November 2022. The Council also failed to send her C’s final Education, Health and Care (EHC) Plan in March 2024 with a right of appeal against it. Mrs B says this has caused C to miss out on essential education and her significant distress and inconvenience.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
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)
6. 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

7. I have started my investigation from March 2024, just over 12 months before Mrs B complained to us. I have not exercised discretion to investigate back to November 2022 as I consider it was reasonable for Mrs B to have complained to us at an earlier point.
8. The end point of the investigation is harder to establish as it rests on when the right of appeal arose. I will deal with this point in my findings below.

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How I considered this complaint

9. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
10. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. 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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What I found

EHC Plan 

12. 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. 

Appeal rights

13. 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; and
• amendment to these elements of an EHC Plan;

14. 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)
15. 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.
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Alternative educational provision

17. 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.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

Background

19. Mrs B’s daughter C has special educational needs and an EHC Plan. The Council issued a final EHC Plan in October 2023 naming her current school, School Y but her attendance had dropped to below 20%. She was on a part-time timetable which was due to increase each week, but she did not manage to attend the sessions, so the timetable did not increase.
20. An emergency review was held on 13 February 2024. Mrs B said the review decided C’s EHC Plan and the named school were not suitable.

20 March 2024 onwards

21. On 20 March 2024 the Council sent an email to Mrs B saying it needed to finalise the plan with the agreed changes. It said it had attached C’s plan naming School Z for her to start in September 2024. It was unclear if this was the final plan or not. Mrs B received the email but did not receive any attachments.
22. The Council has provided a copy of a letter and final EHC Plan both dated 20 March 2024 which it says it sent to Mrs B, but it has not been able to provide a covering email specifically referring to the final plan and right of appeal. The EHC plan says it is the third final. Mrs B says she did not receive the EHC Plan or covering letter.
23. An annual review was held on 25 June. Mrs B has sent me a copy of the letter dated 20 March with the right of appeal containing a note that she received this on 25 June.
24. The review confirmed C’s attendance for the past academic year had been 15.9% and she had not attended any mainstream academic lessons. Joining live lessons remotely had not worked and she was not able to access general school provision. The Council had not yet found a suitable placement but was looking at education other than at school (EOTAS). The review recommended changes to section F and I of the EHC Plan.
25. During June and July Mrs B worked with her caseworker on an EOTAS package.
26. On 27 September the Council notified Mrs B that it was not intending to make any changes to the EHC Plan. This letter contained a right of appeal to the Tribunal. Mrs B said she did not receive this letter.
27. C had not started at School Z in September 2024. Mrs B provided medical evidence saying she was not fit to attend. On 15 October Mrs B requested section 19 alternative provision. Another annual review was held on 16 October. On 12 November the Council issued another decision letter saying it was not making any changes to the EHC Plan.
28. On 20 November Mrs B appealed to the Tribunal after participating in mediation. She said she was appealing against the decision letter of 25 June, she disagreed with the school named in Section I and wanted a bespoke package of education to meet C’s needs as mainstream education could not meet her needs. She also said section B did not reflect all of C’s needs and so section F was inadequate.
29. Mrs B complained to the Council on 12 December. The Council responded on 18 December saying it would consider medical needs education, but Mrs B had not given her consent for this. It would continue to work with the school to find suitable education for B.
30. The Tribunal notified the Council ln 20 December that it had received the appeal.
31. On 11 March 2025 Mrs B complained to the Council about the lack of alternative provision. The Tribunal allowed Mrs B to include in her appeal her concerns about sections B and F of the EHC Plan. Mrs B complained to us in early April 2025.
32. On 27 May the Council responded to her complaint saying it had outlined the alternative education provisions in its previous response, but Mrs B had not considered that any of them were suitable. It said the Medical Needs Service was still available. It also said that as an appeal was in process it could not consider the matter as a complaint.
33. Mrs B continued to complain that she had not received the EHC Plan and covering letter in March 2024 so her right of appeal had been delayed. The Council sent three responses in June 2025 confirming that Mrs B had received a right of appeal against the EHC Plan naming School Z on 11 October 2023, 20 March 2024, 27 September 2024 and 12 December 2024.

Findings

34. The Council has provided a copy of 3rd Final EHC Plan dated 20 March 2024 which it said it sent to Mrs B. Mrs B did not receive this until 25 June 2024 at the Annual Review. I am unable to conclude the Council was at fault for Mrs B not receiving the document as there is some evidence that it was sent. However, I accept Mrs B was not aware of her right of appeal until 25 June 2024. I have concluded this is the first date she received notification of her right of appeal against the EHC Plan. I note she referred to this date on her appeal form.
35. This means I can investigate the period from 20 March until 25 June 2024 (when the right of appeal arose), a period of three months.
36. It was clear C was out of school during this period and unable to engage in the school’s educational provision and that the Council was aware of this situation. The annual review paperwork shows that during this period the school had tried some different options, but none had been successful and that a package of EOTAS was being considered. It was not until October 2024, which is outside the period of my investigation that Mrs B formally requested alternative education for C.
37. However, I consider the Council should have considered whether it had a duty under section 19 to provide some alternative education for C during this earlier period. The failure to do so caused Mrs B some uncertainty as to whether something more suitable could have been put in place for C. She received no education during this period. Furthermore, as there was an EHC Plan in place, the Council had a statutory duty to implement the provision in section F of the EHC Plan finalised in October 2023. The Council did not do so between 20 March and 25 June 2024, so C missed out on essential education.
38. Our guidance on remedies recommends a payment of between £900 and £2400 per term for a loss of education and special educational provision. The period I am looking at is slightly less than three months and includes the easter holidays I have concluded a payment of £750 is appropriate: £450 for the loss of special educational provision and £300 for the uncertainty as to whether alternative education could have been provided.

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Action

39. In recognition of the injustice caused to Mrs B and C I recommended the Council within one month of the date of my final decision: apologises to Mrs B and makes a symbolic payment to her of £750.
40. The Council has agreed to the recommendations and should provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman