Summary: The Council was at fault because it failed to secure the special educational provision in Y’s Education Health and Care Plan. This caused avoidable distress and a loss of educational provision. The Council will apologise, make a payment and take action to ensure all the provision in Y’s Plan is secured.

The complaint

1. The Council failed to provide special educational provision for Ms X’s child Y from September 2023 to present. This caused a loss of educational provision and avoidable distress.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

8. Ms X appealed Section F of Y’s EHC Plan of August 2022 to the SEND Tribunal. The Tribunal issued an order for the Council to secure an EOTAS package for Y and the Council issued a final amended EHC Plan in May 2024.
9. I have not investigated September 2023 to April 2024 because Y’s SEP was under appeal to the SEND Tribunal. The reason Y did not receive education in line with his EHC Plan is too closely linked to the matter under appeal. Y’s non-attendance at school to receive provision was said by professionals to be due to school-based anxiety and we do not consider this to be separable from the suitability of provision in the EHC Plan. This means we cannot investigate how the Council considered any of its legal duties between September 2023 and April 2024.
10. I have investigated matters from the date of the post Tribunal EHC Plan (May 2024) to the date Ms X complained to us (June 2025).

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant law and guidance

13. 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 council can do this.

14. An EHC Plan has sections including:
• Section I which has the child’s placement. This is left blank if the child is to receive education which is not based in a school placement (EOTAS).
• Section F which has the child’s special educational provision (SEP).
15. 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 2014).

What happened

16. Section F of the Plan issued in May 2024 (the post-Tribunal EHC Plan) set out a package of EOTAS:
• 17 hours a week teaching of core curriculum subjects by a qualified teacher experienced in Y’s needs
• Two hours a week specialist literacy and numeracy interventions by a qualified teacher.
17. Y’s case records include the following action to secure provision on his EHC Plan:

18. Ms X’s representative complained to the Council at the end of October 2024 (the first complaint). A second representative also complained in November (the second complaint). The second representative transferred to another position in a different company and left no forwarding details. There was some confusion between Council officers about what to do with regards to both complaints and the Council closed one of them.
19. The Council provided a response to the second complaint in February 2025. This said:
• Tuition Provider B had started
• Provider C had been considered but was now not needed because Tuition Provider B could provide all Y’s provision
• Engagement with Ms X had not been to an acceptable standard.
20. The Council provided a complaint response to the first complaint in May 2025. It said:
• Y was medically or otherwise unable to attend school and it should have recognised this
• It agreed full time provision was not secured to meet Y’s needs in line with relevant law from September 2024. Y now had an EOTAS package with Tuition Provider B
• An annual review meeting was set for July to ensure all provision was suitable and able to meet Y’s needs
• It accepted its service was not good enough and was sorry for the impact on Ms X and on Y.
21. Ms X was unhappy with the Council’s response and complained to the LGSCO in June 2025.

Findings

22. There was fault by the Council which failed to secure all the tuition provision in Y’s post Tribunal EHC Plan. This caused a loss of SEP between May 2024 and June 2025. There was poor engagement with Ms X which caused avoidable distress and a loss of trust. The Council has made these findings in its own complaint response, but it has not offered an effective remedy for the injustice to Y.

Back to top

Agreed Action

23. Our Guidance on Remedies says we remedy injustice already sustained because of identified fault and prevent ongoing injustice because of similar fault. Our remedies generally deal with what has already happened and stop at the point of the complaint to us.
24. The Council will take the following action within one month:
• Apologise again to Ms X to reflect the avoidable distress caused by poor engagement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
• Allocate a named officer to liaise with Ms X to provide fortnightly updates about progress on securing a tuition provider to deliver all the tuition provision on Y’s latest EHC Plan. (I recognise the latest EHC Plan may have been reviewed and amended since the post Tribunal Plan I have considered)
• Make a payment of £3600 to reflect missed SEP between May 2024 and June 2025. This is at the low to mid-range of our published Guidance on Remedies and reflects the following:
1. Y’s likely limited capacity to cope with the full EOTAS package of 17 hours. There are references in the evidence to him needing to build up tolerance; and
2. Some provision was in place, although very limited, not always with a qualified teacher and there are months where no educational package was in place.
25. Within three months, the Council should ensure all the hours of tuition in Y’s most recent EHC Plan are in place.
26. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

27. I find fault causing injustice. The Council has agreed actio to remedy the injustice.

Back to top

Investigator's decision on behalf of the Ombudsman