Summary: We have found no fault with how the Council handled Ms X’s son’s (Y’s) case. Y missed education but we do not consider this to be the fault of the Council.

The complaint

1. Ms X complained the Council failed to deliver the provision in her son’s (Y’s) Education, Health and Care Plan. She said this led to lost education and SEN provision which affected his development and wellbeing.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
4. 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.
5. 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)
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)

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What I have and have not investigated

7. Ms X brought her complaint to the Ombudsman in May 2025. Therefore, those parts of her complaint that relate to events before May 2024 are late. As explained in paragraph 2, Section 26B applies. I cannot investigate late complaints unless there are good reasons why the complainant did not come to us sooner. I see no good reason why Ms X did not complain to us sooner.
8. The Council issued Y’s final EHC Plan in August 2024. Ms X appealed the named school. The Tribunal Hearing took place in March 2025. Therefore, in line with paragraphs 3 and 4, I cannot investigate events that took place between August 2024 and March 2025. This is because the matters Ms X has complained about are directly linked to those considered by the Tribunal.
9. I have investigated the periods May-August 2024 and March-May 2025.

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How I considered this complaint

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

EHC Plan

12. 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 EHC Plan

13. 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)

Appeal – what we cannot investigate

14. 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)
15. 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.
16. 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.

Appeal – what we can investigate

17. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example:
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.

General section 19 duty

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

Background

20. Ms X’s son, Y has SEND and an EHC Plan. The Council carried out an annual review of Y’s EHC Plan in January 2024. Between January and March, Ms X and the Council tried to find a suitable educational placement for Y. During this time, Ms X complained about the Council’s actions and officer conduct. By the end of March 2024, Ms X had agreed for Y to be educated at a specialist school in the short term.

May-August 2024

21. During this time, Y received education and SEN provision at a specialist school. In August, the Council issued Y’s final EHC Plan. This named a specific specialist school. Ms X disagreed with the named school and appealed the EHC Plan to the Tribunal.

August 2024-March 2025

22. I cannot investigate this period as explained in paragraphs 14-16.
23. In March 2025, the Tribunal Hearing took place. It concluded that it could not name a specific school so named a type (specialist) instead.

After the Hearing March-May 2025

24. At the end of March, the Council confirmed that Y would be removed from the roll of the school that was determined by the Tribunal to be unsuitable. The Council identified that it needed to secure suitable alternative provision (AP) for Y until a permanent specialist school placement could be found.
25. The Council contacted potential schools to find a new school placement and made referrals to various AP providers.
26. In April, Ms X complained about how the Council had handled Y’s case. She said that the Council’s actions had resulted in Y having no school place. She named specific officers and alleged that they had lied and been dishonest.
27. The Council asked Ms X for more details to support her allegations against officers. After further unpleasant contact from Ms X, the Council restricted Ms X’s communications. The Council accepted that it needed to continue to work towards finding Y a suitable education and told Ms X that it would only communicate via email specifically for the purpose of achieving this aim.
28. The Council commissioned AP but the provider was unable to make contact with Ms X. Y’s previous school offered to continue music therapy and occupational therapy provision but said they were unable to reach Mrs X to confirm arrangements
29. Ms X contacted the Council again about Y’s school placements, parental preference and the Tribunal outcomes. She did not respond to an offer to deliver support and provision at the school Y attended in March 2024.
30. Ms X brought her complaint to the Ombudsman in May 2025. She moved out of the local authority area that same month.

My findings

May-August 2024

31. I have found no fault with the Council for its actions during this period. Y was attending a specialist school that was suitable for his needs in the short term.

After the hearing

32. Between March and May 2025, the Council should have secured alternative provision (AP) for Y as he was not attending any school. The Council commissioned AP and arranged for Y’s previous school to offer SEN provision. However, Ms X did not respond to these offers. Therefore, Y missed education and SEN provision, but it was not the Council’s fault.
33. I have found no fault with how the Council handled Ms X’s case.

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Investigator's decision on behalf of the Ombudsman