Summary: We have completed our investigation into how the Council handed Miss X’s child’s special educational needs. We find no fault in the way the Council amended their Education, Health and Care plan or provided their educational provision.

The complaint

1. Miss X complained about the way the Council handed her child, B’s, special educational needs. Specifically, she complained the Council:
1. delayed issuing B’s Education, Health and Care (EHC) plan; and,
2. failed to provide the provision set out in B’s EHC plan or an education when B was not in school.
2. Miss X said she had to give up work to care for B. She said it caused emotional exhaustion, financial hardship, and unnecessary distress. She said B missed three years of full-time education. She said it impacted B’s wellbeing and mental health.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care plan.
10. 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)
11. The First-tier Tribunal (Special Educational Needs (SEN) and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
12. There is a right of appeal to the Tribunal against many aspects of EHC plans, including 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.

13. 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)
14. 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.
15. 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.
16. 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). 

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What I have and have not investigated

Education, Health and Care plan delay

17. Miss X complained the Council delayed issuing her child, B’s, Education, Health and Care (EHC) plan (part a of the complaint). But Miss X did not complain to the Council about this.
18. As I have said above, 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.
19. In this case, the Council agreed to allow the Ombudsman to investigate this part of the complaint even though it had not had an opportunity to investigate and reply.

Educational provision

20. Miss X complained the Council failed to provide the provision set out in B’s EHC plan or an education when B was not in school. Miss X complained to us in May 2025 about B’s educational provision going back four years.
21. As I have said above, we cannot investigate late complaints unless we decide there are good reasons. I consider reasonable opportunities existed for Miss X to bring this complaint to us before May 2025. For this reason, I do not find good reasons to exercise our discretion and look back four years.
22. I therefore began my investigation considering the 12 months before Miss X complained to us: May 2024 to May 2025.
23. B was in school until summer 2024. I have therefore considered provision from September 2024.
24. As I have said above, there are limits to what we can investigate if a child is not attending school and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the special educational provision or the educational placement in the EHC plan.
25. Miss X did not agree with school named in B’s EHC plan in November 2024. She wanted B to attend a different placement. Therefore, we cannot investigate a lack of special educational provision, or alternative educational provision after Miss X got appeal rights. The Council issued B’s EHC plan in early November 2024 which gave Miss X appeal rights.
26. I have considered the school term dates for the autumn term of 2024. The term started at the beginning of September 2024. Half term was the last week of October. The second half of term started at the beginning of November, when Miss X got her right to appeal.
27. For this reason, I have investigated B’s educational provision for the first half of the autumn term 2024, which was September and October 2024.

New complaints about B’s new placement, social care issues, and school meals

28. Miss X wanted to add other issues to this complaint. These were to do with B’s new placement (from November 2024), her other child, social care issues, and that B did not get free school meals.
29. These complaints were not in Miss X’s complaint to the Council which I have investigated. Miss X has since complained to the Council and has raised other complaints with the Ombudsman. For this reason, I have not included these new elements in my investigation.

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How I considered this complaint

30. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. I considered the relevant legislation and statutory guidance, set out below.
31. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.

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What I found

What should have happened

Education, Health and Care plans

32. 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.
33. 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).
34. 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. 

Amending an EHC plan

35. The Special Educational Needs and Disability Code of Practice says a council can amend EHC plan without an annual review or a re-assessment of the child’s needs.
36. The Code says if this is the case, the council must send the parent a notice detailing the proposed amendment. If, after considering parent’s representations on the proposed change, the council continues to amend the plan, it must issue the amended plan as soon as possible and within eight weeks of the notice.

Alternative educational provision

37. 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.
38. 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.
39. 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.

What happened

40. Miss X’s child, B, has an Education, Health and Care (EHC) plan. They had been attending a specialist school (School 1).
41. In July 2024, there was a review of B’s EHC plan. Miss X wanted B to go to another placement. The Council decided to maintain the plan but it emailed Miss X and told her it was looking for another placement for B, as Miss X wanted. The Council said B would get alternative provision while it found a new placement.
42. In September 2024, B started alternative provision.
43. Miss X said she wanted B to go to School 2.
44. In November, the Council issued an amended EHC plan naming School 2. B started attending School 2 within the month. Miss X appealed. She also complained.
45. The Council said School 1 had provided B’s alternative provision. It said that School 1 and the Council had worked with Miss X to make suitable arrangements for B’s education.

Analysis

Delay issuing an Education, Health and Care plan

46. Miss X complained the Council delayed issuing B’s Education, Health and Care (EHC) plan (part a of the complaint).
47. It was agreed at the review of B’s EHC plan in July that:
• the Council would tell Miss X about different placements B could attend;
• Miss X would tell the Council her preference;
• the Council would arrange and secure a placement at Miss X’s preferred placement; and,
• B would get alternative provision until the Council secured the new placement.
48. In October, the Council told Miss X it had been trying to contact School 2 and showed her all the dates it had contacted School 2.
49. A week later, in November, the Council told Miss X it had secured a place for B at School 2. It sent her a copy of the amended EHC plan, naming School 2, on the same day.
50. The Council had been working to get a placement for B at School 2. School 2 was Miss X’s preference. The Council told her it would amend the EHC plan naming School 2 as soon as it had secured a place for B. This is what happened. If there was any delay naming School 2, it was not the Council’s fault. I am satisfied the Council was proactive, contacted School 2 frequently, and did not let the matter drift.
51. I therefore find no fault with the Council.

Educational provision

52. Miss X complained the Council failed to provide the provision set out in B’s EHC plan or an education when they were not in school (part b of the complaint). As I have set out above, I have investigated the first half of the autumn term of 2024.
53. In these two months, I find B received alternative provision. The evidence shows the Council worked closely with School 1 to make sure B received this alternative provision while it secured a place at School 2.
54. I am satisfied the Council considered its duties to provide alternative education, made sure that alternative provision was in place, and satisfied itself that the provision met B's needs and EHC plan.
55. I therefore do not find the Council at fault.

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Decision

56. I find no fault.

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Investigator's decision on behalf of the Ombudsman