Summary: Ms X complains the Council has failed to secure the provision in her son, Y’s Education, Health and Care Plan. Ms X says this has led to him missing out on the education, therapy and SEN support that he needs, and has affected his development. Ms X says it has also caused her and her family distress. We have found no fault in the Council’s actions.

The complaint

1. Ms X complains the Council has failed to secure the provision in her son, Y’s Education, Health and Care Plan. Ms X says this has led to him missing out on the education, therapy and SEN support that he needs, and has affected his development.
2. Ms X says it has also caused her and her family distress.

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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. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
5. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. The courts have established that if someone has appealed to the SEND 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)
9. 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, where there is support in an EHC Plan that is not being delivered and we decide the cause is not connected to the appeal.
10. 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

11. I have not investigated Ms X’s complaint before May 2024 which is 12 months before she brought the complaint to us. Ms X could have raised issues prior to May 2024 sooner if she was unhappy.
12. I have not investigated Ms X’s complaint after 24 December 2024. This is because Ms X appealed the placement named in Y’s EHC Plan and the delivery of the provision is closely linked to the school named in section I.

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How I considered this complaint

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. Ms X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

15. 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. 
16. 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 rights and the SEND Tribunal

17. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
18. Once the Council issues a final EHC Plan, there is a right of appeal to the SEND Tribunal against the:
• description of the child’s SEN;
• SEN provision specified;
• school or placement specified; or
• fact that no school or placement is specified.

What happened

19. The Council issued an EHC Plan for Y in July 2023. This recorded Speech and Language (SaLT) Therapists should support staff who work with Y work towards the outcomes noted in the EHC Plan. The EHC Plan also noted various provisions to be delivered by teachers in nursery or school.
20. A review of Y’s EHC Plan took place in July 2024, and the Council decided to maintain Y’s EHC Plan.
21. A further review took place in November 2024 where the Council decided to revise Y’s EHC Plan. A final EHC Plan was issued in late December 2024. This detailed SaLT support, support from teaching staff and TA’s, teaching staff trained in Attention Autism, teaching staff trained in Core Vocabulary, teaching staff trained in supporting social interaction.
22. The school named in Y’s EHC Plan said it did not consider it could meet Y’s needs in January 2025, and the Council consulted with various settings.
23. Ms X appealed to the tribunal in January 2025 in relation to the placement named in Y’s EHC Plan.
24. Ms X raised a complaint with the Council in February 2025 and said she was unhappy the Council had not shared information about consultations it had completed with various settings. The Council responded to say it had followed its procedure regarding this.
25. Ms X’s MP wrote to the Council in March 2025 and said the school named in Y’s EHC Plan had told it in 2023 it could not meet Y’s needs. The letter also asked why Y remained at that school.
26. Ms X raised a further complaint in April 2025 and said she was unhappy the Council had not provided copies of consultations, and she felt it was not ensuring the content of section F of Y’s EHC Plan was provided to him. Ms X also said she was unhappy the Council had not told her Y’s school had reported it could not meet his needs in 2023.
27. Y’s school issued a witness statement as part of the tribunal paperwork in May 2025 which confirmed the provision it had put in place. This said school were providing continuous SaLT input, one to one support at all times and movement and sensory breaks were in place. The school also noted it had undertaken specific training and had input from outside agencies such as Educational Psychology. The school also confirmed Y attended an alternative provision funded by it. The school did note it had responded to two consultations saying it did not feel? it could meet Y’s needs.
28. The Council responded to Ms X’s complaint in late May 2025. It said funding was available for the school and if it had concerns about meeting Y’s needs the school should discuss this with the Council. Ms X raised a further complaint as she did not feel the Council had addressed her concerns.
29. I understand Y is now attending a different school.

Analysis

30. The Council has said Y’s school were providing a high level of individualised support including one to one support with specialist input and targeted interventions.
31. This has been confirmed by the school in its statement to the tribunal. Therefore, I cannot say the Council was at fault as the school were delivering the provisions outlined in Y’s EHC Plan.
32. I do acknowledge that Y’s school has said it responded to consultations to confirm it felt it could not meet Y’s needs. However, it was delivering what was in Y’s EHC Plan and regularly reviewing provision and consulting with professionals.
33. If Ms X was unhappy with the content of the plan or the provisions detailed within it, she could have appealed this to the Tribunal. She could have done it after Y’s final plan was issued in July 2023 or ask the Council for a change of placement as part of an emergency review. As the Council’s decision to name a specific mainstream school for Y can be appealed, we would not investigate the Council’s position on placement even if the evidence suggests this decision could have been flawed. The decision to name a specific placement can be appealed and this would be the right way to challenge it.

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Decision

34. I find no fault.

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Investigator's decision on behalf of the Ombudsman