Summary: We have found fault with the Council for failing to secure a suitable education or Mrs X’s son, Y when he was unable to attend school. This caused him to miss education and the whole family avoidable distress. The Council has agreed to remedy the injustice.

The complaint

1. Mrs X complained the Council failed to secure education and support for her son, Y since January 2024 when his school told her to keep him home due to anxiety. She said the Council failed to update his Education, Health and Care (EHC) Plan; refused Education Other Than At School (EOTAS) and did not follow the Special Educational Needs (SEN) Code.

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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. 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)
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. 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

6. Y stopped attending school in January 2024. Mrs X brought her complaint to us in June 2025. I have investigated from June 2024, 12 months before Mrs X brought her complaint to us. I have seen no reason why Mrs X did not complain sooner.
7. I have ended my investigation in April 2025 when the Council issued a final EHC Plan. This is because Mrs X could have appealed the content of the Plan to Tribunal and I have seen no good reason why she did not.

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How I considered this complaint

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

10. A child or young person with special educational needs (SEN) 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

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)

Reviewing EHC Plans

12. 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)

Section 19 duty

13. 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.

What happened

14. Mrs X’s son, Y has SEN. He attended mainstream primary schools until January 2024 although his attendance fluctuated due to anxiety. He stopped attending school when the school asked Mrs X to keep Y at home as he was too anxious to attend. The school said that it was pursuing off site alternative provision (AP) for Y.
15. In February 2024, the Council issued a draft EHC Plan. Mrs X commented on the draft and the Council issued a Final Plan in April 2024 naming the school that Y had stopped attending in January.
16. In May 2024, Y began to attend an AP centre, funded by the school. At the same time, Mrs X funded sessions with a mentoring organisation to support Y. The Council said that it would continue to work with Mrs X and the school to develop a bespoke provision map for Y. The aim was to deliver appropriate provision at the start of the autumn term.
17. In September 2024, Y continued to receive limited AP but there was no progress with a provision map. In October, the Council contacted Mrs X and apologised for the delay in communication and miscommunication regarding the provision map. A short time later, the school sent Mrs X a provision map, and the mentoring organisation proposed some changes.
18. In November 2024, the Council held an annual review meeting. Mrs X requested Education Other Than At School (EOTAS) for Y. The Council refused EOTAS in February 2025. It said that it would continue to consult with school and should find a suitable placement for Y.
19. In March, the Council agreed to top up the funding that the school received for Y and backdated this to May 2024 when his AP started.
20. In April 2025, the Council issued Y’s final EHC Plan. Mrs X brought her complaint to the Ombudsman in June.

Update

21. Upon receiving an educational psychologist report and occupational therapy profile for Y, the Council held a further annual review in July 2025. In October, the Council agreed an EOTAS package for Y and issued a final amended EHC Plan.

My findings

22. Between June 2024 and April 2025, Y was receiving limited AP (2 hours per week) that had been organised and paid for by the school. In addition, he accessed limited online mentoring (2 hours per week) paid for by Mrs X.
23. This did not equate to a suitable full-time education and was fault. The Council acknowledged this in its final response to Mrs X and offered a remedy for the missed education. The amount was based on our Guidance on Remedies (£900-£2400 per term), specifically £900 per term. Given that Y also missed out on SEN provision and the impact on his health, I recommended and the Council agreed a remedy at the higher end of the range; £1500 per term. This equates to £4500 between June 2024 and April 2025).
24. The Council acknowledged the distress and time and trouble that the Council’s failure had on Y and his family. It agreed to pay a total of £1000 for this.
25. Finally, the Council agreed to reimburse Mrs X for the mentoring sessions that she paid for Y when he was not receiving a suitable education. This equalled £2668.

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Agreed action

26. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for failing to secure a suitable education for Y.
2. Pay Mrs X £4500 in recognition of the missed education.
3. Pay Mrs X £500 in recognition of the distress caused by the Council’s fault.
4. Pay Mrs X £500 in recognition of the time and trouble it has taken Mrs X to pursue the complaint.
5. Reimburse Mrs X £2668 for the mentoring sessions she funded when Y was not receiving an education.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice. The Council has agreed to take action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman