Summary: Ms X complains there were failings in the way the Council dealt with her son’s special educational needs and educational provision causing distress, lost educational opportunity and financial costs. The Council has accepted it was at fault. It has already apologised and offered a suitable payment in recognition of the distress caused. So we have completed our investigation.

The complaint

1. Ms X complains there were failings in the way the Council dealt with her son, Y’s special education needs and educational provision causing distress, lost educational opportunity and financial costs. In particular Ms X complains the Council:
• Failed to arrange suitable educational provision for her son after his primary school placement broke down in 2024.
• Failed to arrange the speech and language therapy specified in her son’s Education Health and Care Plan (EHC Plan).
• Poorly communicated with her about her son’s education, including failing to reply to her contact.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended). 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. 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)
5. 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

6. I have not investigated any concerns Ms X has raised before August 2024. This is because the Council issued a final amended EHC Plan for Y in December 2023 so Ms X could have appealed to the Tribunal if she was unhappy with the EHC Plan provision and placement.
7. I have investigated Ms X’s concerns raised after August 2024 to April 2025 when the Council issued another final amended EHC Plan. It was open to Ms X to have appealed to the Tribunal if she was unhappy with the EHC Plan, setting and provision. And it was reasonable to expect Ms X to have done so as the Tribunal can order changes to the EHC Plan and provision.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. 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

Legislation and statutory guidance

10. 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.

Maintaining the plan

11. 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)
12. 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

13. 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). Case law says councils must issue the final amended EHC Plan within a further eight weeks.

Alternative provision

14. 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.
15. 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.
16. 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.
17. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
18. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
19. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.

What happened in this case

20. What follows is a brief chronology of key events. It does not include all the information I have reviewed as part of my investigation. I have referred to events in 2023 to provide background to Ms X’s complaint.
21. In 2023 Y had an EHC Plan and attended a mainstream primary school I will refer to as School B. At an annual review held in June 2023 School B raised concerns about Y’s aggressive behaviour and requested specialist support. It placed Y on a modified timetable as he was at risk of permanent exclusion. The Council made referrals to the Behaviour Support Specialist team. The Council consulted with specialist schools for a placement. And issued a final amended EHC Plan in December 2023 naming School B as Y’s placement. The Council increased the funding to School B to support Y.
22. In August 2024 Ms X raised concerns with the Council about School B and Y being at risk of exclusion due to his behaviour. The Council noted its SEND team considered the placement at School B was not suitable for Y and told Ms X on 4 September 2024. The SEND team advised it wanted to look at education other than at school (EOTAS) for Y as an alternative.
23. In September 2024 Ms X did not send Y to School B and asked the Council to consider alternative provision. A council officer visited Y at home and asked School B to arrange an annual review. The Council made a referral to put tuition in place for Y and sent further consultations to specialist settings I will refer to as School C and School D. But the schools said they could not meet Y’s complex educational needs.
24. The Council consulted a tuition provider I will refer to as Company E on 24 September 2024. Company E contacted Ms X on 27 September 2024 to try and put tuition in place.
25. School B and the Council held an annual review on 9 October 2024. Ms X said Company E had been in touch but not started provision. This was due to the times it offered clashing with arrangements she already had in place or were after a school day when Y liked to be outside with the other children. The Council agreed to consider an alternative tutoring service I will refer to as Company F and asked School C and School D to visit Y so a decision could be made about a placement.
26. Ms X complained to the Council about the lack of provision as Y did not have any tuition due to Company E offering after school hours. Ms X said she had not heard anything more about tuition or SALT support and could not continue funding the private tuition for Y she had arranged. Ms X said the situation was affecting her health as SEND services were not responding to her.
27. The Council put tuition in place for Y in November 2024 with Company F for three mornings a week to increase when Ms X’s availability allowed. It responded to Ms X’s complaint to advise it had made referrals to tuition providers with sessions now in place. The Council confirmed it had been liaising with some schools over a placement for Y and would be in contact once it had formal consultation responses. It upheld this part of Ms X’s complaint and acknowledged this was not a full-time education. But was intended to ease Y back into education as a transition to a full-time offer when a placement could be secured.
28. The Council did not uphold Ms X’s complaint as it considered the SALT inclusion service were trying to provide support in some way while Y was not accessing the education. And the Council had alternative provision in place through tutoring with Company F. Ms remained unhappy with the Council’s response and asked to go to Stage 2 of the complaint procedure.
29. The Council continued to liaise with School C and School D. School C confirmed it could offer morning or afternoon provisions (as deemed suitable by Ms X). The Council put a transition plan in place to increase the half-day sessions to full-time. The transition plan included weekly meetings with SEND to continue to monitor and support suitability of placement. The Council told Ms X it would be amending the EHC Plan following the annual review.
30. Y’s tuition ended on 25 November 2024, and he started a 12-week placement with School C. The Council said it would look to secure more permanent provision once the placement ended. If this was not possible it would also look at independent placements outside the Council’s area. The Council continued to hold regular meetings with School C and School D to establish which setting would be best for Y’s long-term provision.
31. The Council issued further consultations to specialist settings for Y’s placement. The Council issued Y’s amended final EHC Plan on 4 April 2025. This named Y’s placement as School C, the current education provider until the end of the academic year in July 2025. Y would then start at a School D a specialist school in September 2025.

The Council’s response to the complaint and my assessment

32. The Council responded to Ms X’s stage 2 complaint in January 2025 and upheld her concerns. It acknowledged there was a breakdown in provision in June 2023, and it could have started consultation with other placements earlier and before the end of the school year in July 2024. This would have increased the chances of alternative provision being in place before the start of the new school year in September 2024. The Council apologised and offered Ms X a payment of £600 for the missed provision Y may have experienced since September 2024.
33. The Council based the offer on the fact it arranged tuition for Y in October 2024 with Company F and a 12-week placement at School C from November 2024. The Council says School B were looking to permanently exclude Y. So, it made the offer of full-time education with the full national curriculum. However, Ms X decided to bring Y in for fewer hours. The Council say it was expected Y would gradually increase as he had been on a modified timetable at his mainstream setting. But Ms X did not engage with this and kept his attendance at School C to limited hours.
34. Our Guidance on Remedies recommends a Council makes a payment of between £900.00 - £2400.00 per term for lack of educational provision. The Council considers there was disruption for Y from September 2024 for about half a term until alternative arrangements through tuition (Company F) were put in place. And then the step up to a placement with School C. So, it considers the £600.00 payment offered to Ms X was proportionate to the circumstances.
35. It is unfortunate the Council could not arrange tuition for a few weeks after the start of the September 2024 term and Ms X declined some tuition offered because of its timings. However, the documents show the Council arrange tuition in October 2024 and then a placement at School C a specialist primary school from November 2024. The placement was a full time offer to Y therefore I consider the Council’s offer of £600 for the missed provision between September 2024, and October 2024 is sufficient. I do not consider further investigation by us would lead to a different outcome for Ms X.
36. The Council accepts it has a duty to deliver the special educational provision (SEP) in Y’s EHC Plan. The Council says it can meet this duty by securing a placement for the child with an educational provider who can deliver the SEP. Unfortunately, School B did not have in- house provision for SALT so Y needed external SALT through the NHS.
37. The Council acknowledged Y did not receive the full provision of SALT while at School B. But said it was due to lack of availability through the NHS and Ms X turned down NHS SALT Therapy in November 2024. So, the duty to provide the full SEP not been met during September 2024 to July 2025, a full school year. The Council said the lack of NHS SALT was a national issue not just local which was outside the Council’s control. The school and Ms X had asked for SALT at home, however the SALT service did not carry out home visits. But could provide training to a tutor and Ms X instead. As the Council had yet to find a long-term solution for Y’s educational provision it agreed to fund an independent SALT provision to ensure Y received this part of his SEP in EHC Plan.
38. Once Y attended School C it made a referral to Speech and Language Therapists. The Council arranged a SALT assessment for after the Easter Break 2025 but unfortunately this did not take place. The Council made direct contact with a Speech and Language provider who confirmed they could start provision once Y was attending School D from September 2025. The Council has later offered Ms X a payment of £1200 to cover her funding of private SALT.
39. The Council has accepted it could not provide the SALT provision for Y from September 2024 to July 2025 due to a lack of availability of NHS SALT. This is unfortunate and we would regard it as service failure by the Council as it has a duty to make the provision. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended). However, this fault has caused an injustice to Ms X and Y as he has not been receiving the SALT provision specified in the EHC Plan.
40. The Council’s later offer of £1200 to cover Ms X’s costs for using private SALT services is a reasonable one to remedy any injustice caused. I do not consider we could add to any previous investigation by the Council, or that any further investigation would lead to a different outcome for Ms X or Y.
41. The Council accepts it was late holding Y’s annual review which should have taken place in June 2024. The annual review took place on 9 October 2024, and it issued a notice to amend on 16 October. The Council issued the proposed amended plan on 21 November 2024 with continuing discussions about a placement to ensure the most suitable provision for Y. This was within the 4-week period to complete these actions. A parent then has 15 days to give their views and the Council a further 8 weeks to finalise the EHC Plan. Ms X did not provide any further comments on the draft EHC Plan so the Council should have issued the final draft on 1 January 2025.
42. It says any delays in issuing the final amended EHC Plan were due to the complexity of identifying an appropriate placement and the need for parental agreement. The Council says its approach was to work collaboratively with Ms X and in the best interests of Y to identify the most appropriate type of specialist provision. This was rather than issuing an EHC Plan only naming a type of placement rather than the actual education provider. And this was intended to avoid unnecessary appeals and ensure Y’s needs were met as effectively as possible.
43. The Council considered it was in the best interests of Ms X and Y to sort out a placement before issuing the final EHC Plan. But we would consider this to be fault by the Council as the legislation lays down timescales for annual reviews to be carried out and the amended EHC Plan to be issued. This fault has caused an injustice to Ms X as it has delayed her appeal right to the Tribunal which is fault. However, Ms X has not pursued an appeal, and Y was attending a placement at the specialist school. So, I consider the £150 offered by the Council to be a suitable remedy for the injustice caused. In view of this I do not consider we could add to any previous investigation by the Council, or that any further investigation would lead to a different outcome for Ms X or Y.
44. The Council says the SEND Team responded to each of Ms X’s communications within the timescales set by the Council. The documents provided by the Council do show that Ms X received replies to her emails and contact. There is therefore no evidence of fault by the Council in its communications with Ms X.

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Decision

45. I find fault causing injustice. The Council has made suitable offers to Ms X to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman