Summary: The complaint is about the Council not meeting Mr G’s son’s needs, as set out in his Education, Health and Care Plan, including tending to his medical needs. And not providing alternative education when Mr G’s son could not attend school. We uphold the complaint. The Council was at fault for a delay in reviewing the Education, Health and Care Plan, not providing some of its contents and not considering if the School was meeting as much as it could of the provisions in the Plan. The Council is now providing some Education Other Than at School, which was one of Mr G’s requests. But the Council has agreed to our recommendation it make symbolic payments, as remedies for the family’s injustice.

The complaint

1. The complainant (Mr G) complains:
• the Council did not secure the provision set out in his son’s (X) Education, Health and Care (EHC) Plan;
• the School the Council named in X’s EHC Plan could not, for significant periods from March 2023 to October 2024, meet his needs. This was because of its staff’s inability to care to his medical needs;
• this meant Mr G’s wife (Mrs G) needed to attend school to attend to X’s needs;
• during this time, X could not transition to full-time education, as should have happened;
• nothing had progressed by the start of the 2024 autumn term and the School was still unable to meet X’s needs;
• the School says it sought, but did not receive, help from the Council.
2. Mr G advises the Council has now agreed to their main request for it to provide X with a package of Education other than at School (EOTAS), although this is still not fully in place. He says it should make a payment to X to recognise the impact on his education and also to them for the financial and mental health impact on the family.

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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. 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)
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. The First-tier Tribunal (Special Educational Needs and Disability) (SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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)
8. 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

9. Unless there are good reasons, the Local Government Act says we should not consider events over 12 months before someone complains to the Ombudsman. Mr G first contacted us in April 2025.
10. I have looked back to events from January 2024. That is because the Council’s response to Mr G’s complaint was delayed, so delaying his complaint to the Ombudsman.
11. I am not persuaded to go back beyond that. Mr G could have come to us earlier about the 2023 problems at the School.
12. The period I have investigated ends in April 2025 when Mr G complained to the Ombudsman.
13. In March 2025 the Council issued a revised final EHC Plan. This gave Mr G appeal rights, so an alternative remedy (see paragraph 5). But Mr G says this complaint is not about the contents of X’s EHC Plan, but rather its delivery. In so far as that is the case, we can consider it, up to the date of his complaint in April 2025.

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How I considered this complaint

14. I considered evidence provided by Mr G and the Council as well as relevant law, policy and guidance.
15. Mr G 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

Legal and administrative background

EHC Plan 

16. A child or young person with special educational needs may have an 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. 
17. The council has a duty to make sure the child or young person receives the special educational provision set out in section F (the provision) 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)
18. 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. 

Reviewing EHC Plans

19. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
20. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
21. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Alternative provision

22. 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.
23. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
24. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
25. If a child has an EHC Plan a council has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the special educational needs support is designed for the child’s normal classroom setting.

What happened

Background

26. X has physical health disabilities and an autism spectrum condition. His physical disabilities mean he needs a medical procedure carried out several times a day.
27. Following a period of home education, X began visiting a secondary special school (the School) for some taster sessions from September 2022. Before X started at the School, an NHS team advised the School how its staff could be trained to carry out the medical procedure.
28. Before the issues under complaint X had had an EHC Plan. His family had appealed the most recent review to the Plan. At the start of 2023, a SEND Tribunal heard Mr and Mrs G’s appeal. It made findings about the support X needed and the need for training of the School’s staff, and support by an NHS team, around X’s medical needs. The School’s view was it could meet X’s needs, including his medical needs. The decision said there was nothing in Section F of X’s EHC Plan (or the supporting documents) to show it was inappropriate for the named school to provide X’s needs.
29. Following the Tribunal, the Council’s amended X’s EHC Plan and issued a new Plan at the beginning of February. In Section F, around sensory and/or physical needs, it said at least four named individuals would be fully trained by the NHS team to provide X’s medical and care needs.
30. Mr G says after the Tribunal decision, X started to attend the School. But, even after the School staff’s medical training, Mrs G was attending the School every day to assist with X’s medical procedure. And this continued until the end of the school year. In September, the NHS Team provided further medical training. X attended school full-time during this term, although Mrs G was still attending the School to help with the medical procedure.

What I have investigated

31. During the next term, at the start of 2024, X had a series of infections and absences from school. During this time, one of the two School staff trained in the medical procedure left their job.
32. A decision following a review of X’s EHC Plan was due within a year of the previous review, so by February 2024. The School did not hold a review meeting until March 2024. The Council says its caseworker did not complete the amendments to X’s plan following the review. It accepts that was fault.
33. Between April and the end of the school year, X returned to school part-time. Mrs G attended school. The School did not have the number of trained staff as set out in Section F of X’s EHC Plan
34. In April the School sent the Council its report of the annual review meeting. It said X needed specialist medical support. And that it was hoping to recruit a full-time care assistant to provide that support. Following a meeting with Mr and Mrs G in July, the Council noted Mr and Mrs G and the School wanted to recruit a health care assistant to carry out the medical procedure. It noted Mr and Mrs G were considering appealing the health care elements of the EHC Plan. The Council asked the NHS team for its advice.
35. The NHS team’s view remained that it could provide training to the School’s staff and it did not require a specific health care assistant. It noted it was important X was in an environment where there were several people who were trained to meet his needs. That approach would best allow him “…to move towards future independence”.
36. In September Mr and Mrs G met with the Council’s SEND Caseworker. Following the meeting Mr and Mrs G’s view was the Council or School had not proposed any significant changes. So it was likely X’s problems at school would continue. So they thought it was in his best interests to continue with part-time schooling.
37. In September, the NHS team provided further training to the School’s staff in the medical procedure.
38. In October Mrs G sought an update on a review of X’s EHC Plan. The Council’s caseworker responded to say it had not progressed the review as the School was late in sending the Council the review records. And the next review was due in May 2025.
39. In mid-October Mr and Mrs G made the decision that X should stop attending the School, due to the disruption to his education. They advised the School. Its headteacher acknowledged their email and advised: “…currently we cannot meet his medical needs. Moving forward we need to source external staff…The next step will be to organise an emergency annual review…”
40. The headteacher contacted the Council to advise:

“The member of staff who was carrying out [the medical procedure] has recently left. More staff did complete the training but afterwards, for a number of reasons, said they were not comfortable carrying it out.”

41. In October the School proposed X receive daily tuition at a named provider. In November Mrs G advised they did not accept that offer. She advised they were “keen to close out all discussions” with the School, Council and NHS provider before committing to anything.

42. The School told the Council it had spoken to Mr and Mrs G and:
• “We discussed tuition short term, ability for [X] to visit school, attend if he chooses, annual review and support for [medical] training”;
• “…they do not want to continue to train staff in school as it is not in the best interest for [X]”;
• “…they have enough resources for now at home to support [X]…”. Mr G advises the School was not accurate in what it told the Council – they were referring to a specific resource.
43. In early December 2024 the School hosted an annual review meeting for X’s EHC Plan. Following the review meeting the Council contacted Mr G. It advised its ongoing view, supported by the School and the NHS team, was that X’s medical needs could be managed at the School with support from health services.
44. In the weeks after the December meeting, Mr G wrote to the Council requesting it provide X with:
• alternative education, as he could not attend the School;
• the needs set out in his EHC Plan;
• EOTAS, as the School could not meet his needs.
45. In December, the Council sent Mr and Mrs G X’s EHC Plan review paperwork.
46. The Council’s SEND Team panel considered Mr G’s requests. It did not agree to:

• EOTAS. It was seeking further information before considering the request again;
• tuition, as that was the School’s responsibility.

47. Mr G complained.
48. In January 2025 the Council’s caseworker met with Mr and Mrs G. They again made a request for EOTAS. In February the Council’s SEND panel did not agree to this request, as its view was there was not enough evidence that it would be inappropriate for provision to be delivered at a school. Its records say health colleagues were part of the panel discussion.
49. In February, in response to contact from the Council’s caseworker, Mrs G advised the alternative provision offered by the School was not suitable, due to problems with disabled access and toilet facilities for X. The caseworker responded to other matters but did not address the question of the suitability of the placement. Mr G has advised me they had earlier told the School about the accessibility issues. I cannot find a record in the Council’s file that this information was passed to the Council.
50. In March, the Council’s SEND Team panel considered again Mr G’s request for EOTAS. It spoke to health professionals. Its view was providing X’s medical needs were “…proving more challenging”. It suggested “flexi-learning”: which it said could combine a mixture of some “outside” learning / tuition with access to the School for some provision and “socialisation”.
51. The Council’s response to Mr G’s complaint took the view it and the School had taken reasonable steps to secure provision for X.
52. In mid-March the Council issued a final revised EHC Plan. The provisions around medical needs remained in Section F of the Plan (with more detail in the health section of the Plan).
53. In April Mr X complained to the Ombudsman.
54. In May the Council’s SEND Team panel considered the request for EOTAS. It decided, due to the impasse, to explore the EOTAS proposal. It liaised with Mr and Mrs G over the summer vacation and agreed to start EOTAS from September 2025. Mr G notes that the Council has still not fully implemented the EOTAS for X.

Was there fault by the Council?

EHC Plan review delay

55. Generally, we expect councils to follow the timescales set out in the SEN Code which is statutory guidance (see paragraphs 19-21). We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
56. The Council should have held an annual review of X’s EHC Plan and issued a decision by the beginning of February 2024. The School, acting on the Council’s behalf, did not hold an annual review meeting until March. And the Council did not carry the review forward. But for the fault it is likely the Council would have decided to issue an amended Plan. That would have been due by the end of March 2024. Not completing the review and issuing an amended EHC Plan was fault.
57. In October 2024 Mrs G asked the Council’s caseworker for an update. The caseworker did not act on this prompt, did not appreciate a statutory deadline had been missed and instead directed Mrs G to a review date in the future. The Council missed an opportunity here to limit the length of the delay. That was fault.
58. The Council did not issue a revised EHC Plan until March 2025, following another review meeting.

Delivering the contents of X’s EHC Plan – trained staff

59. In 2023 the Tribunal had ordered the Council to include provision around X’s medical procedure in Section F of his EHC Plan. Included in this was for the School to have four trained members of staff. In the period of my investigation – from January 2024 – at no point did the School have that number of staff trained. There were times when there were two trained staff, but at other times there were none, which was the situation when Mr and Mrs G made the decision that it was in X’s best interest that he stop attending the School. To not fulfil the provision set out in X’s EHC Plan was fault.
60. In October 2024 Mr and Mrs G decided to withdraw X from School. The School and the NHS team the Council was consulting said it would be able to train staff to support X. But in October 2024 the School accepted it did not have staff. On the balance of probabilities, that suggested even if X had stayed in School there would have been continuing issues, more likely than not, until the end of the Autumn 2024 term.
61. After that, from the start of the Spring 2025 term, I cannot now say whether the School would have been able to provide the procedure to X. There is the possibility the issues may have been ongoing; for example the March 2025 review noted that delivering X’s medical needs were proving more challenging than anticipated. But also the School may have been able to make changes to the way it delivered the procedure.

The School’s out of school provision

62. A council’s duties to provide alternative education (under Section 19 of the Education Act – see paragraphs 22-24) are only triggered if a child has no educational setting it is reasonable and practicable for them to attend. Councils should consult the relevant professionals involved in a child’s education and welfare taking account of any evidence. If a council then decides a school place remains available and accessible to the child, it should document this and promptly tell the parents.
63. Here, the Council’s view was it was for the School to deliver X’s education. It had consulted with the School and NHS team. So it was entitled to take the view the School remained accessible – albeit after it sorted out the staff training issue. For those reasons, I cannot question the Council’s view that it did not have duties under Section 19 of the Education Act.
64. But where a pupil out of school has an EHC Plan, we expect councils to try and secure as much Section F provision as is possible in the home or alternative provision setting, although accepting that parts of the provision might not be deliverable. That duty is non-delegable (see paragraphs 17-18). Our view is when there is evidence that a council is aware of an issue with delivery of the Section F provision, it should be proactive in liaising with the education provider about what it could do to deliver as much provision as possible.
65. For X the School had said in October 2024 it was not then able (in the short-term at least) to meet his medical needs. The School proposed an alternative placement. Mrs G and X went to visit the placement but refused the offer. Mr G says it was unsuitable for X, due to his disabilities. He says they relayed this to the School, although there is no record this information was passed to the Council before Mrs G’s early February 2025 email to the Council.
66. But even without this information, the Council knew:
• the School had accepted it could not then meet X’s medical needs;
• Mr and Mrs G had refused the School’s placement suggestion; and
• the School told them Mr and Mrs G said they could educate X at home.
67. I would have expected to see the Council’s SEND Team asking the School (and liaising with Mr and Mrs G) about what could be delivered from X’s EHC Plan provision. The Council’s records do not show it did this, which was fault.
68. From the Council’s records, I have not seen evidence of the School requesting help from the Council. But that does not absolve the Council. It should have been more proactive in discussing the matter with the School and Mr and Mrs G. To have not done so was fault.

Did the faults cause an injustice?

Delayed EHC Plan review

69. The Ombudsman cannot make judgements about what an EHC Plan should contain (including about Mr and Mrs G’s request for EOTAS). But the delay in reviewing X’s EHC Plan had an adverse impact on Mr and Mrs G and X, as it delayed their right of appeal to the SEND Tribunal.

Not delivering part of the contents of X’s EHC Plan – the staff numbers

70. The evidence shows Mr and Mrs G were trying to make the Plan work. But during the time X was at school at no point did the School have the number of trained staff set out at Section F of X’s EHC Plan. That meant it was a reasonable step for Mrs G to attend the School. On the balance of probabilities a significant part of that attendance could have been avoided but for the fault. So Mrs G was put to some avoidable stress and frustration in having to attend the School. And X did not receive a part of the provision set out in Section F of his EHC Plan.
71. Mr and Mrs G made a decision to stop X attending the School. The School confirmed to them then it could not then meet X’s medical needs. Its view however remained it could resolve that issue. It is not for the Ombudsman to decide whether the School was suitable – opinions differed. But even if Mr and Mrs G had sought a return to school for X, there would likely have been a continuing period when X was without the number of trained staff set out in his EHC Plan providing support – on balance this would have at least been until the end of the Autumn 2024 Term.
72. After the end of the Autumn Term, I cannot make a decision about whether the School could have delivered the provision. Mr G says faults by the Council were the reasons X could not transition to full-time education. But we cannot know, even on the balance of probabilities, what would have happened but for the fault. However, the uncertainty is itself an injustice.
73. If the Council had liaised with the School and Mr and Mrs G it is likely X might have received some of the provision set out in his EHC Plan while he was out of school. I have recommended a remedy for the period I have investigated (between November 2024, when the Council was aware of the issue with the School’s placement suggestion until Mr G’s April 2025 complaint to us).

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Agreed action

74. I recommended that, within one month of my final decision, the Council take the following action.
• Apologise. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• For the distress caused by the delayed appeal rights, make Mr G a symbolic payment of £500.
• For the period (of around four terms – January 2024 to April 2025) when the School on the Council’s behalf was not meeting the provision set out in Section F of X’s EHC Plan, make Mr and Mrs G a payment of £6000 (£1500 a term). This figure includes a remedy for the significant distress to Mrs G likely caused by her having to attend School for part of this period and, before and after this, for having to provide help for X at home. The payment also includes a symbolic payment for missed provision for the period after X stopped attending School.
75. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

76. 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