Summary: The Council was at fault for the delay in providing the occupational therapy provision outlined in Mrs X’s child Y’s Education, Health and Care Plan. It was also at fault for failing to properly consider its alternative provision duty when Y’s placement at their school broke down. The Council will apologise and make a symbolic payment to Mrs X to acknowledge the avoidable impact of its faults.

The complaint

1. Mrs X complained the Council did not:
1. provide her child, Y, with a suitable education when they were out of school from January 2024 to April 2024;
2. provide the occupational therapy (OT) provision outlined in Y’s Education, Health and Care (EHC) Plan from November 2024 to May 2025;
3. use expert recommendations in its assessment of Y’s needs, carried out an inadequate educational psychologist assessment and ignored its tribunal officer’s advice which led to an inadequate EHC Plan; and,
4. did not investigate her complaint properly, independently and within published timescales.
2. Mrs X said as a result Y regressed and their wellbeing and education suffered. She also said it impacted her family’s wellbeing, finances and their relationship with Y.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. 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

7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. We cannot investigate a complaint if someone has appealed to a Tribunal about the same matter, even if they later withdraw all or part of the appeal. 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 and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. 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).
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
11. I cannot investigate Mrs X’s complaint at 1c) above because she appealed the special educational provision and the Council’s decision to name a mainstream school in Y’s EHC Plan to the Tribunal thereby placing the matter out of our jurisdiction. The SEND Tribunal is the appropriate body to examine the Council’s decision and the decision-making process which led to that decision.

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How I considered this complaint

12. I spoke to Mrs X and considered evidence she provided.
13. I considered evidence provided by the Council as well as relevant law, policy and guidance.
14. Mrs X and the Council had an opportunity to comment on the draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plan

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.
16. The EHC Plan is set out in sections. Section B of the EHC Plan sets out the child’s special educational needs, section F sets out the special educational provision needed by the child and section I outlines the name and/or type of educational placement. We cannot direct changes to the sections about the child’s 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 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. 

Alternative education provision

19. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
20. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
21. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time: Out of school, out of sight? published July 2022
22. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

23. Where councils arrange for schools or other bodies to carry out its functions on its behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure its duties are properly fulfilled.

The Council’s corporate complaints policy

24. The Council publishes its complaints policy online:

• The Council will provide a written response at stage one within 10 working days. The complaint will be reviewed by an experienced officer from the relevant service area.
• It will provide a written response at stage two within 20 working days from the time the investigator has received all relevant information from the complainant.

What happened

25. This section sets out the key events in this case and is not intended to be a detailed chronology.
26. Mrs X’s child Y is of primary school age and has complex special educational needs (SEN). Y began attending their mainstream school (school A) in 2022.
27. In September 2023 the Council issued Y’s first EHC Plan.
28. In October 2023 Mrs X appealed sections B, F and I of Y’s EHC Plan to the Tribunal. She instructed solicitors to support them with the appeal process.
29. In the same month, School A gave Y a fixed term exclusion. At their reintegration meeting at school, it was decided that an annual emergency review should take place. Y returned to school A.
30. In November 2023 an emergency annual review meeting was held. Mrs X said professionals at the meeting agreed that Y needed a place at a special school. A request was made to the Council for a specialist placement.
31. In early January 2024 the Council considered Mrs X’s request and decided that there was not enough evidence to support a special school placement. It noted that Y was on a part timetable and it decided to increase the funding to school A to support Y’s needs better with 1:1 support.
32. In late January 2024 Y received another fixed term exclusion. Mrs X attended a reintegration meeting at school A two days later. In this meeting, Mrs X said school A told her that Y’s “placement had broken down”. Mrs X said she agreed with school A due to the impact on Y’s wellbeing and mental health. Y did not go back to school A. Mrs X said Y received no education from late January 2024 to late April 2024.
33. Mrs X also received a request to send in medical letters to avoid incurring fines for Y’s absence. Mrs X said she was surprised by this request as it was agreed that Y’s placement had broken down and she was not keeping Y away from school A. School A also contacted the Council about the placement breakdown and requested that it reconsider Y’s case for a special school place.
34. In early February 2024 Mrs X found an outdoors alternative provision provider. She told the Council about this provider. Mrs X said it took the Council five weeks to act on her request; it then asked school A to make a referral. Around this time solicitors acting on Mrs X’s behalf issued a letter before action to the Council regarding its failure to provide Y’s educational provision.
35. In late February 2024 Mrs X visited school B (a special school) which said it could meet Y’s needs and that a place would become available after Easter 2024.
36. In late February 2024 the Council responded to Mrs X’s solicitor’s letter. In it, the Council:

• stated it had received contact from school A about the breakdown in placement and that school A would provide a home learning pack to support Y while arrangements were made for their education.
• accepted that as Y was no longer in school, it was the Council’s duty to ensure they received a suitable education that met the requirements of their EHC Plan. Y’s case officer was liaising with school A so that the increased funding to school A could be used to pay for an alternative provision for Y. It said that school A had made a referral to an alternative provision provider recently and if that provision becomes available to Y, then it would need to be approved by the education governance board (EGB).
• said that if school A deemed the alternative provision Mrs X had found for Y appropriate then the school should make a referral.
• said because Y was no longer in school, it would pass the matter back to EGB to reconsider its decision about a special school placement.
• said it would consult with schools, including school B to check if they were able to meet Y’s needs.
• apologised for not fulfilling section 19 of the Education Act 1996 duties since Y’s placement at school A broke down.

37. In mid-March 2024 the Council organised a one-hour online maths tuition for Y. Mrs X said this was not suitable for Y but the lesson commenced. However, it overwhelmed Y as they had been away from education for eight weeks.
38. A week later the Council told Mrs X that the Council had agreed to a special school placement at school B.
39. Y started at school B on 29 April 2024. Mrs X said Y received no education other than the one hour of online tuition and weekly worksheet packs between late-January and April 2024.
40. In early October 2024 the Tribunal heard Mrs X’s appeal. The Tribunal’s closing email showed that the parties reached agreement on all of the matters within the appeal during the hearing, including naming school B in Y’s EHC Plan.
41. In early November 2024 the Council issued Y’s final amended EHC Plan. Section F of Y’s EHC Plan showed the special educational provision needed to meet their sensory needs. Regarding occupational therapy (OT) provision, Y would receive:

• An initial block of three consecutive OT sessions delivered by an occupational therapist. Each session would last 45 minutes with an additional 15 minutes for preparation.
• After the initial block, two OT sessions delivered by an occupational therapist per half-term for the following 1.5 terms (six sessions in total). Each session would last 45 minutes with an additional 15 minutes for preparation.
• For the remaining term, one OT session per half term (45 minutes long with an additional 15 minutes preparation time) delivered by the occupational therapist – two session per term.
• an occupational therapy programmed devised and monitored by the occupational therapist and delivered in school by teaching and support staff who have received additional training from the therapist. This programme would be monitored every six weeks and updated if required.
• A tailored sensory programme devised and monitored by the occupational therapist every six weeks.

42. In early February 2025 School B arranged Y’s annual review. Mrs X also complained to the Council soon after about matters related to Y’s EHC needs assessment process and the resulting EHC Plan, its failure to provide an appropriate education when Y’s placement at school A broke down and its failure to provide Y with OT provision in school B in line with their EHC Plan. Mrs X also sought reimbursement of solicitors’ fees and associated costs related to their Tribunal appeal.
43. The Council responded to Mrs X and said that it could not look at any disagreements about Y’s EHC Plan through its corporate complaints process as that matter was for the Tribunal. It could also not consider costs Mrs X incurred related to the appeal as reimbursement of these costs should have been raised as part of the Tribunal process.
44. In March 2025 the Council issued a stage one complaint response:

• It said it had agreed to fund 10 hours of alternative provision in late February 2024. It also agreed to a placement at special school (school B) in late March 2024. It considered that Y received educational provision from late January 2024 to late April 2024.
• Regarding the lack of OT provision, the Council said it had not received Y’s annual review paperwork. It said it would email school B for this and regarding the OT provision.

45. Correspondence between the Council and school B showed that Y’s OT provision was not in place since November 2024 and that the Council considered that “the responsibility for OT provision was with the NHS.”
46. Mrs X remained unhappy and asked to go to stage two of the Council’s process. Mrs X was also unhappy that the Council allocated an officer previously involved in the complaint to carry out the stage two complaint investigation which she said was not in line with its policy. In response, the Council appointed another officer to consider Mrs X’s complaint at stage two of its corporate complaints process.
47. In May 2025 Mrs X complained to us. The Council also issued its stage two complaint response. In it, the Council said that Y’s absence was authorised for the Spring term 2024. It said unauthorised absence was usually the trigger for the involvement of the inclusion service and/or a school referral where there were attendance concerns. Y had a part timetable and school A was proactive in seeking provisions for them that were suitable.
48. It said that Y was discussed during an inclusion service meeting in late-January 2024. It said the meeting had noted that “as there was STIPS (Specialist Teachers for Inclusive Practice – a service that offers advice and training on whole school approaches to inclusive practice) involvement and the school was using Y’s EHC Plan funding, no other service was suitable at this time.” However, the Council said it could not find any evidence of STIP involvement during the Spring term 2024 nor a referral to the inclusion service from the SEN team.
49. The Council explained that it should monitor any part-time attendance when it became aware, and decide if suitable educational provision was provided to the child that was accessible to them at that time. It should also keep all part-time education cases under review. The Council decided that, on balance, the inclusion and SEN service should have been more proactive with school A and Y’s family to explore how best to support them at that time. It partially upheld the complaint.
50. A further complaint response in May 2025 stated that the Council was unable to assess Mrs X’s complaint about Y’s OT provision because providing this provision was the NHS’s responsibility after the Tribunal concluded. The response also added that Y’s caseworker had said that Y had not missed any OT and had received additional OT to catch up. There was also an agreement for this OT to continue until the next annual review in 2026.
51. In response, Mrs X said the OT provision was not funded by or a responsibility of the NHS and Y had received no OT provision for six months. Mrs X said the stage two complaint investigator had been provided with false information; the delay in securing Y’s OT was a result of “mismanagement and miscommunication at handover between caseworkers.” Mrs X said this mistake was confirmed by another Council officer at which point Y’s OT provision was organised using a private company sourced by this officer and agreed by the panel.
52. Panel notes showed that OT included in Y’s EHC Plan following Tribunal was above the core offer and could not be provided by local services, therefore the Council needed to commission it privately. It also noted that there was missed provision for the 2024/25 academic year due to the Council’s failure to implement the provision following the Tribunal. It added that Y was now receiving OT in line with their EHC Plan including making up for missed sessions. There is no evidence which showed that Y received any extra OT sessions than what was already in their EHC Plan to make up for the missed sessions.

Findings

Education between late January 2024 to late April 2024

53. While Mrs X did not think a mainstream setting (school A) was the correct setting for Y (for which she appealed to the Tribunal), she continued to take Y to this school. Following Y’s fixed term exclusion in late January 2024, school A told Mrs X that Y’s placement had broken down.
54. Mrs X and school A made the Council aware of this breakdown in placement without delay. At this point the Council should have decided whether it considered school A was available for Y (and therefore it had no duty to provide alternative provision). If the Council decided it was not, it should have considered whether it owed Y a section 19 duty to provide alternative education because it considered there was no other school placement available for Y. Records showed that the Council delayed making this decision; Y received one hour of alternative provision in mid-March 2024 and the Council then decided that Y needed a specialist placement at school B where they started in late April 2024.
55. The Council accepted that it had not properly considered its section 19 duty which was fault. If the Council had done this promptly, then on the balance of probabilities, it would have arranged a suitable alternative education provision for Y sooner. The Council’s fault meant Y did not receive a suitable education from late January 2024 to late April 2024 which was a significant injustice.

Occupational therapy provision

56. The panel notes showed that Y did not receive occupational therapy provision in line with their EHC Plan between November 2024 and May 2025 because the OT provision set out in their Plan was above the Council’s core offer and therefore needed to be commissioned privately. The Council delayed arranging Y’s OT which was fault. As a result of this fault, Y was without OT provision between November 2024 and May 2025 and that was a significant injustice.

Complaint handling

57. The Council’s published complaints policy on its website does not mention that its stage two complaints are investigated by independent officers. When Mrs X requested that her complaint was investigated by another officer, the Council arranged for this to happen. There is no evidence of fault causing a significant injustice. However, there was a short delay in the Council issuing its complaint responses and it offered Mrs X a symbolic payment of £100 for this which was a suitable remedy for the injustice caused.

Service improvements

58. We recently recommended the Council make service improvements on similar matters on other complaints therefore it is not necessary to repeat these on Mrs X’s complaint as we will monitor these through our case work.

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Agreed action

59. Within one month of this decision the Council will:
1. Apologise to Mrs X for the avoidable frustration and uncertainty caused. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
2. Pay Mrs X £1200 to acknowledge the impact on Y due to the missed educational provision between January 2024 and April 2024 and to acknowledge the avoidable frustration and uncertainty caused by its failure to properly consider its section 19 alternative provision duty when Y’s school placement broke down.
3. Pay Mrs X £350 for the avoidable frustration and impact on Y caused by the delay in securing the occupational therapy provision in Y’s Education, Health and Care Plan.
4. If it has not already, pay Mrs X £100 it previously offered to recognise the avoidable time and trouble caused by its complaint handling.
60. The Council will provide us with evidence it has complied with the above actions.

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Decision

61. I found fault causing injustice and the Council agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman