Summary: We find the Council delayed making arrangements to secure all the provision in Z’s EHC Plan following the SEND Tribunal’s decision. This caused Mrs X and Z avoidable frustration and uncertainty. However, for the reasons set out in this statement, we cannot say this caused Z a significant injustice in terms of educational attainment. The Council has agreed to apologise to Mrs X and Z. We do not find fault in how the Council applied its unacceptable contact policy. There are parts of Mrs X’s complaint we cannot investigate. We explain why in this decision statement.

The complaint

1. Mrs X complains the Council:
1. Failed to provide suitable alternative education provision for her child.
2. Delayed securing the special educational provision in her child's EHC Plan following the SEND Tribunal issuing its decision.
3. Disproportionately applied its unacceptable contact policy to limit her ability to raise concerns.
2. Mrs X says the Council's actions have affected her child's educational attainment and wellbeing. She says the Council has also caused avoidable frustration and distress, while affecting her ability to raise concerns.

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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. 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.
5. 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)
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)
7. 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 have and have not investigated

8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
9. Parts of Mrs X’s complaint concerns the Council’s actions and decisions after she approached the Ombudsman in April 2025. Evidence gathered during this investigation shows continuing discussion about Z’s education provision. More recently, the Council sought to revert to commissioning Z’s provision directly.
10. The Council’s actions and decisions after April 2025 are outside the scope of this investigation, due to the restriction set out in paragraph 8. Mrs X could make a separate complaint about how the Council secured Z’s provision from April 2025 onwards. If she remained dissatisfied with the outcome of that complaint, including if the Council refused to consider it, she could then refer the matter to the Ombudsman.

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How I considered this complaint

11. We considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X and the Council had an opportunity to comment on our draft decision. I considered any comments before making a final decision.

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Relevant legislation, guidance and policy

Alternative provision

13. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

Education, Health and Care (EHC) Plans

14. 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.
15. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement
16. 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)
17. The Code says the provision should be in place from the date the final EHC Plan is issued. Where the provision is proposed by the council in a draft EHC Plan, the Council should be ready to secure that provision when the EHC Plan is finalised.
18. In R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348, a judicial review about the Council’s s.42 duty, the Court rejected the Council’s argument it only had to put provision in place within a reasonable time rather than immediately. The Court found the five-week period built into the SEND Regulation 44 following a Tribunal decision to issue an amended EHC Plan was designed to allow time for implementation and the bulk of the child’s provision, at least, should have been in place within that time.
19. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Appeal rights and the Ombudsman’s jurisdiction

20. Relevant to this complaint, 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.

21. 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)
22. 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.
23. 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.
24. 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).

Council’s policy on Unacceptable Actions by Customers

25. The Council publishes a policy setting out what it considers unreasonable actions by service users. The policy also details the options available to the Council and the possible consequences to the service user. The policy explains how the Council may restrict or change access to a service when it considers an individuals actions to be unacceptable.

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What I found

Key events

26. Below is a summary of the relevant key events. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
27. In June 2023, the Council issued an EHC Plan for Z. Section I of the EHC Plan named School P as the setting.
28. In September 2023, Mrs X appealed to the SEND Tribunal. The appeal was wide-ranging, made against sections B, F and I of Z’s EHC Plan, while also asking the Tribunal to make recommendations around health and social care elements. The appeal asked the Tribunal to grant Z a package of Education Otherwise Than At School (EOTAS) instead, as it was felt the inherent flexibility would better meet Z’s needs.
29. The Council said the appeal was registered in December 2023.
30. The Council said during the Tribunal procedure, it agreed an EOTAS package would be appropriate for Z. It said it set out the details of a proposed package in an email sent to Mrs X on 7 March 2024. This package would include:
• Tuition;
• Mentoring;
• Occupational therapy (OT);
• Speech and language therapy (SALT); and
• Physical education, with swimming lessons being suggested.
31. The Council said it allocated 10 hours of 1:1 tuition in March 2024. The Council said this was funded through to the end of the academic year in July 2024. The Council said Mrs X asked for four hours of tuition instead, because Z would be unable to access more than that at the time. The Council said it delivered OT and SALT in line with the requirements of Z’s EHC Plan. It said it agreed to 1:1 swimming lessons, supported with a personal budget for 12 weeks during the summer term. The Council later conceded there had been a delay implementing this and it agreed the sessions could take place over the summer to make up the missed provision. The Council said it commissioned a mentor for three hours, though Mrs X declined this in May 2024, owing to concerns about Z’s capacity to engage.
32. The Council said in May 2024, Mrs X sought a personal budget for parts of Z’s provision. The Council said it agreed a personal budget for 1:1 swimming lessons and mileage costs for the summer term 2024, continuing from September 2024.
33. The Council said in June 2024, Mrs X sought a personal budget for the entire EOTAS package. The Council said in July 2024, it sought clarity about the requests, but did not receive the information it asked for.
34. The Council said in July 2024, it emailed Mrs X to confirm the package on offer.
35. In December 2024, the SEND Tribunal issued its decision. Noting that both parties had agreed EOTAS provision in principle, the Tribunal ordered the Council to amend Sections B and F. The Tribunal also ordered the Council to leave Section I of the EHC Plan blank, providing for a package of EOTAS.
36. On 7 January 2025, Mrs X complained to the Council. She said Z had no funding assigned to allow her educational provision to restart in January 2025, with the providers already in place. Mrs X said this meant Z could not access her educational provision. Mrs X said she had raised this concern, but the Council had ignored her.
37. The Council said it sent Mrs X a direct payment agreement on the same date, covering payments for Z’s swimming lessons. The agreement also covered mileage costs to swimming lessons and OT sessions.
38. On 8 January 2025, the Council issued Z’s amended final EHC Plan.
39. On 15 January 2025, the Council wrote to Mrs X to issue a warning about her communication:
• The Council said Mrs X’s communications had been unreasonably persistent, high in volume and adopted a scattergun approach. The Council said this was affecting its ability to effectively respond and risked duplicating work.
• The Council provided examples of this contact, highlighting occasions where Mrs X had sent multiple emails across several days between 2 January and 15 January.
• The Council said if this continued, it would have to consider restricting Mrs X’s contact, in accordance with its policy.
40. The Council said it took Z’s EOTAS package to its funding panel on 23 January 2025 for approval, following the Tribunal’s decision and it issuing Z’s amended final EHC Plan. The Council said its funding panel agreed to provide a personal budget for some elements of the package, but not others.
41. On 3 February 2025, the Council responded to Mrs X’s complaint:
• On the delay in providing funding, the Council referred to the direct payment agreement sent. It apologised for the delay in issuing the payment agreement and said there would be no loss of swimming provision because of this.
• On Mrs X’s assertion of being ignored, the Council said Mrs X had raised concerns about the funding for swimming lessons on 2 January. The Council said it responded with the direct payment agreement on 7 January.
• The Council said it understood Mrs X was dissatisfied with the direct payments for mileage. The Council said this had been resolved after the funding panel had considered it.
• The Council said it would ensure it contacted Mrs X prior to the end of the academic term to ensure there was no delay in funding restarting.
42. On 10 February 2025, Mrs X complained to the Council:
• Mrs X complained the Council failed to provide Z with suitable and accessible full-time education for over 11 months, failing to adhere to its duty under section 19. Mrs X said the provision provided between March and July 2024 fell short of what a full and varied education should be. Mrs X said the Council had placed the burden to deliver this provision on them as Z’s parents. Mrs X said the Council had only fully agreed to the EOTAS package the day before the Tribunal. Mrs X said the provision was agreed, but not fully in place.
• Mrs X said the Council should compensate Z for missed education and backdate the education package to March 2024. Mrs X also said the Council should pay compensation for distress and uncertainty.
• Mrs X said the Council ignored requests for a personal budget throughout 2024 and had not explained why it had refused a personal budget for 10 hours of tuition.
43. The Council said on 27 February 2025, its funding panel agreed Mrs X’s request for a personal budget for 10 hours of tutor time for Z.
44. On 18 March 2025, the Council responded to Mrs X’s complaint:
• On unsuitable provision, the Council set out the actions taken to arrange an EOTAS package throughout the appeal. The Council said it believed it had provided Z with a suitable and accessible offer of education, which delivered the provision set out in Section F of the EHC Plan then in place.
• On the request for the Council to backdate the current package and pay compensation, the Council referred to the EOTAS package it arranged during the appeal. It said it considered this a suitable offer of education. It recognised there was a delay in the provision starting, due to the time needed for the Council to commission a provider. However, the Council said this delay did not cause Z an injustice and the Council would not offer compensation.
• On the personal budget, the Council said personal budgets could be requested at the annual review, or when an EHC Plan was being drafted. It set out the requests and decisions around Z’s personal budget so far.
• The Council said it would continue to oversee Z’s EOTAS package and would arrange a meeting to review the personal budget, later specifying it intended to hold this meeting in June 2025.
45. Mrs X asked the Council to escalate her complaint. She said the Council’s response did not fully address her complaint. She said Z’s needs were clear in the time leading up to the Tribunal.
46. On 1 April 2025, the Council wrote to Mrs X:
1. It said it had reviewed Mrs X’s previous correspondence, published Ombudsman guidance and the Council’s own policy. Having done so, the Council said it had concluded Mrs X’s contact met the definition of unreasonable.
2. It said Mrs X had made unreasonable demands, with excessive and unreasonable requests for detailed information. The Council said this affected its capacity and impacted the service it could offer to others.
3. The Council said Mrs X’s level of contact had been unreasonable. It said Mrs X’s communication was frequent and combative, requiring a disproportionate amount of time and resource to respond to. It said this had affected the Council’s ability to address Mrs X and Z’s needs, and the needs of others.
4. The Council said Mrs X’s repeat use of the complaints procedure and refusal to adhere to procedures was unreasonable. It said the volume and tone of the complaints affected its ability to respond to Mrs X’s complaints, and the complaints of others.
5. The Council said this had impacted officers’ wellbeing. The Council said it would therefore impose restrictions on Mrs X’s contact with the Council:
1. The Council would only respond to Mrs X when there was a legal requirement to do so. The Council would send responses no sooner than three months apart, unless legally required.
2. Mrs X should send any correspondence to a specific email inbox.
3. The Council would decline phone calls and in-person meetings, unless there was a legal necessity to communicate in that way.
4. The Council would not continue with any ongoing complaints, including those awaiting acknowledgement or escalation. The Council would not accept any new complaints during the period of restriction.
5. The Council said it would review the restrictions in six months to decide whether they should remain in place.

Analysis

Did the Council act with fault?

Alternative provision in 2023 and 2024

47. Paragraphs 20-24 set out the Ombudsman’s jurisdiction to investigate a complaint about alternative provision, where a right of appeal is engaged.
48. The Council issued Z’s final EHC Plan on 23 June 2023, providing Mrs X with a right to appeal from this date. Following appeal, the SEND Tribunal issued its decision on 4 December 2024. This means I cannot investigate Mrs X’s complaint about a lack of suitable alternative provision between these dates. Whether the education on offer to Z in this time was suitable is the matter the Tribunal was asked to consider as part of its deliberations. The restriction set out in paragraphs 20-24 applies.

Delay in implementing provision following SEND Tribunal decision

49. The Tribunal issued its decision on 4 December 2024. As paragraph 18 sets out, the Council then had five weeks to issue Z’s amended final EHC Plan and secure the provision set out. This means the Council should have issued Z’s final amended EHC Plan by 8 January 2025, which it did. The Council did not delay issuing the amended final plan.
50. The Council should also have fully secured the provision specified in Z’s plan by the same date. Section F of Z’s amended final EHC Plan set out an EOTAS package consisting of:
• 10 hours per week of 1:1 tuition.
• 1 hour of hydrotherapy or equine therapy per week, with transport costs included.
• 1 hour of music therapy per week, with transport costs included.
• 1 hour of swimming per week, with transport costs included.
• Community activities supported by a mentor.
• Weekly OT sessions, with transport costs included.
• Weekly direct SALT sessions, with transport costs included.
• Tablets and computer software for educational purposes.
• Coordination between qualified professionals to deliver education using strategies designed to meet Z’s needs.
51. The Council told the Ombudsman:
1. In January 2025, Z was receiving four hours of weekly 1:1 tuition, direct OT, direct SALT and weekly swimming. The Council said it had approached a tuition provider to provide 10 hours of tuition. It said Mrs X asked for this to be split between two tutors, providing four and six hours respectively. Four hours of tuition began on 10 January 2025. The Council said the tuition provider continued to look for a second specialist tutor for the remaining six hours and that the Council also contacted other providers. The Council said Z required specialist tuition because of her complex needs, which affected how quickly the additional tuition could be arranged. The Council said OT, SALT and swimming were in place. It also said direct payment arrangements for some associated provision and transport were in place for January 2025.
2. The Council sent Z’s iPad by post on 31 January 2025, which it accepted was later than intended.
3. The Council said Z’s EOTAS package went to panel on 23 January 2025. The panel agreed a personal budget for music therapy, equine therapy, carer provision and mentor provision, as Mrs X had requested. The Council said swimming and mileage for swimming and OT had already been agreed. It said it would remain responsible for directly funding tuition, educational resources and the hire of the OT space. On 29 January 2025, the Council sent Mrs X a direct payments agreement covering the agreed personal budget elements for the spring term and, where relevant, the summer term.
4. In February 2025, Mrs X asked the Council to reconsider several matters, including a personal budget for the full 10 hours of tuition. The Council said it continued to seek additional tuition and that a second tutor had been identified, but Mrs X asked for a further four hours rather than six because of concerns about Z’s timetable and capacity. On 27 February 2025, the Council agreed to provide the full 10 hours of tuition through a personal budget, as Mrs X requested. It said the resources budget would remain with the Council, in liaison with the tutor agency.
5. In March 2025, the Council said it sent a further direct payments agreement to Mrs X to sign and return. It said delay in receiving the signed agreement affected when it could make payments. The Council said it continued to directly commission OT and SALT and that the remaining provision was to be arranged through the direct payments personal budget, as Mrs X had requested.
52. I note the Council’s explanations, which show it took steps in January and February 2025 to respond to Mrs X’s requests and to identify ways to secure the provision. However, as paragraph 18 sets out, the courts have found councils should be substantially delivering the provision when they issue the plan. The regulations provide five weeks from the Tribunal’s decision for this, with this period allowed to finalise arrangements.
53. Paragraph 16 sets out the Council’s duty to secure the special educational provision in Section F. This duty is absolute, non-delegable and immediate from the date the plan is issued. The evidence shows the Council did not fully secure Z’s provision from the point it issued the amended final EHC Plan. I therefore find the Council at fault for this.

Restrictions on contact

54. The Council’s policy sets out the threshold at which an individual’s contact and conduct becomes unacceptable. It is not for the Ombudsman to judge whether Mrs X’s contact met that threshold, or provide a right of appeal against the Council’s decision that it did. Our role instead is to assess whether the Council correctly followed its own procedure.
55. The Council’s policy says unacceptable actions may fall within four categories:
• Aggressive or abusive behaviour.
• Unreasonable demands.
• Unreasonable levels of contact.
• Unreasonable use of the Council’s complaints procedure.
56. The procedure set out in the policy for imposing restrictions on an individual’s contact is as follows:
• Management in the relevant service area will compile evidence of the unreasonable behaviour. A senior manager will consider the information and provide approval to issue a warning. This sets out the Council’s concerns, says what the individual should do to address this, and explains what might happen if the unreasonable conduct continues.
• If the unreasonable behaviour persists, a senior manager will decide what action to take. The Council will then send a further letter explaining the decision. The letter will explain the Council’s decision, what action it will take and for how long it will restrict contact. The letter will also explain when the Council will review its decision and the restrictions imposed.
57. The evidence seen shows the Council followed this procedure, with officers compiling evidence before sending Mrs X the written warning in January 2025. A senior officer also considered compiled evidence and agreed the decision to place restrictions on Mrs X’s contact with the Council in the letter sent in April. The letters contained the required relevant information around reasons, restrictions and review.
58. I have not identified any fault in how the Council followed its procedure to restrict Mrs X’s contact. I cannot therefore question the decision itself.

Did the Council’s faults cause an injustice?

59. The Council did not have Z’s provision fully secured when it issued Z’s amended final EHC Plan in early January 2025. At that point, Z was receiving some provision, including four hours of tuition, OT, SALT and swimming. However, other elements of the EOTAS package had not yet been agreed through panel or made available through direct payments. The Council then took further steps in January and February 2025. It agreed a personal budget for several elements of the package on 23 January 2025, sent a direct payments agreement on 29 January 2025, and agreed the 10 hours of tuition as a personal budget on 27 February 2025.
60. I recognise Mrs X says the full package was not being delivered by the end of February 2025 and that some elements were still not being accessed later. I have considered this carefully. The evidence shows that, by late February / early March 2025, the Council had either directly commissioned some provision or agreed funding arrangements through a personal budget for the remaining elements. The evidence also shows there were ongoing practical difficulties with implementing the full package, including provider availability, Mrs X’s requests about how provision should be delivered, and concerns about Z’s ability to manage the full package.
61. I therefore find there was a delay of several weeks in the Council making arrangements to secure the full provision set out in Z’s EHC Plan. This caused avoidable frustration and uncertainty for Mrs X and for Z. These are injustices.
62. However, I cannot say this delay caused Z a significant injustice in terms of educational attainment. Some provision was available from January 2025, including tuition, SALT, OT and swimming. The Council also took steps during January and February 2025 to agree funding for the remaining elements of the package. The evidence does not allow me to conclude, on balance, that Z would have accessed the remaining provision in full during this period, even if the Council had secured all arrangements sooner. Nor can I separate any continuing lack of access after late February 2025 from the practical difficulties of implementing the agreed personal budget and Z’s capacity to engage.

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Action

63. Within four weeks of the final decision being issued, the Council will:
1. Provide a written apology to Mrs X and Z for the injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
64. The Council will provide us with evidence it has complied with the above actions.

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Decision

65. We have completed our investigation with a finding of fault causing injustice. The Council has accepted our recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman