Summary: We have found the Council at fault for not considering its Section 19 duty when it became aware that Mrs X’s son, Y was not attending school. This caused Y to miss out on education and SEN provision. The Council has agreed to remedy this injustice.

The complaint

1. Mrs X complained about the Council’s delay in issuing her son’s final EHC Plan following a Tribunal decision. She also complained the Council failed to secure alternative provision when he was unable to attend the named school placement. Mrs X said that her son has missed education and it has affected his wellbeing. She said it has also impacted on her ability to work.

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The Ombudsman’s role and powers

2. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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. 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)
5. 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

6. I cannot investigate matters that have been considered by the Tribunal.
7. I have investigated the Council’s actions after the Tribunal Hearing took place in October 2024.

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How I considered this complaint

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

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What I found

Law and guidance

10. 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)

EHC Plan

11. 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.
12. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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.

Time limit after Tribunal Order

14. The council has a time limit within which it must carry out an order. This is from the day the Tribunal service send out the order. An order to make or maintain an EHC Plan should be implemented within 5 weeks.

Maintaining the EHC Plan

15. 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)
16. 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.

What happened

Background

17. Mrs X’s son, Y has SEND and an EHC Plan. In January 2024, Y stopped attending his mainstream school due to emotionally based school avoidance (EBSA). Following an educational psychologist assessment later that month, the Council issued a final EHC Plan.
18. Mrs X appealed against the EHC Plan. The Council had initially named a mainstream school in Y’s Plan but during the appeal, the Council changed this to an autism base within a different mainstream school.
19. The case was heard at Tribunal in July and October 2024. The Tribunal dismissed Mrs X’s appeal and concluded that the school named by the Council during the appeal was suitable for Y.
20. The Council said it asked the Tribunal service for clarification about next steps. It said the service advised that as the appeal was dismissed, there was no further action, and no changes were to be made to the Plan. The service said that the amendments should take place during the next annual review.

Y unable to attend the named school

21. In January 2025, the school began the transition process with Y. Y struggled to attend despite being on a significantly reduced timetable.
22. Mrs X complained about the delay in issuing the Plan following the Tribunal. The Council explained that, on checking its records, it found that the Tribunal did not send an agreed working document. This was because it considered the matters raised in relation to sections B and F to be resolved, and agreed with the school named by the Council in section I.
23. The Council upheld Miss X’s complaint and issued Y’s final amended EHC Plan, naming the school. This was 4 months after the Tribunal hearing.

Early annual review

24. In February 2025, the school submitted an early review to the Council. It said it could not comment on Y’s needs as he was not attending school. The school said it was not an attendance matter, and the school was not going to be a suitable placement for Y.
25. The Council said the Tribunal had agreed the school was suitable for Y. It said the school needed to work with the family to increase his time in school. It should also put some alternative provision in place as detailed in his EHC Plan. The Council confirmed it was not looking to change the named placement.
26. In May, following several meetings to discuss Y’s case, the Council decided the school needed to complete the annual review. It said it should also submit an update from the school educational psychologist. The Council said it could then look at intervention and Section 19 duties.
27. Mrs X brought her complaint to the Ombudsman.

Update

28. In June, the school followed up with the Council. It said it had submitted the information requested but the Council had not responded. It said the school had attempted some alternative provision with Y, but it was unsuccessful due to his mental health concerns.
29. In July 2025, the Council decided that it needed to make changes to Y’s EHC Plan. It asked Mrs X what her preferred placement would be. It also offered to discuss options for alternative provision until a new placement could be found.
30. In August, the Council sent Mrs X an Amendment Notice and explained that the Council had put the EHC Plan back into draft so that changes can be made. It included a list of schools that the Council would be consulting. Mrs X responded with the family’s amendments to the Plan and their comments on the potential schools.
31. In October, the Council issued the final amended EHC Plan, naming the parental preferred school.

My findings

Delay in issuing Final EHC Plan

32. The Council should have issued a final EHC Plan within 5 weeks of the Tribunal service sending out the Order. This was missed as the Tribunal did not send an agreed working document.
33. The Council acknowledged that it delayed sending out the final EHC Plan naming the school agreed by the Tribunal. This was fault. However, I do not consider this to have caused Mrs X and Y a significant injustice. This is because all parties were aware of the content of the agreed Plan and the school placement. It did not delay Mrs X’s appeal rights as the Plan had already been agreed at Tribunal.

Alternative provision

34. The Council became aware that Y was struggling to attend the named school in February 2025 when the school submitted an early annual review.
35. The Council saw this as an attendance matter for the school to handle. The Council placed the responsibility to continue working with Y and deliver alternative provision in line with the Plan, on the school. This was fault. It was the Council’s duty to ensure Y received the education and SEN provision in his EHC Plan. The school had told the Council that it had tried everything, and the placement was just not suitable. The Council would not accept this.
36. The Council did not consider its Section 19 duty until July 2025 after Mrs X brought her complaint to the Ombudsman. At this stage, Y had been out of education for the seven months post-Tribunal (over 18 months altogether).
37. I have found the Council at fault for not considering its Section 19 duty when the school initially told it that Y was not attending. This resulted in Y missing education and SEN provision for 10 months (2.5 school terms) post-Tribunal until he started at a new school in November 2025.
38. In line with our Guidance on remedies, the Council has agreed to pay Mrs X £2250 (£900 per term) in recognition of the missed education and SEN provision.

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Agreed action

39. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X and Y for not considering its Section 19 duty when it first became aware that Y was not attending the named school placement.
2. Pay Mrs X £2250 in recognition of Y’s missed education and SEN provision.
40. The Council 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 to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman