Summary: Miss X complains the Council has failed to ensure her son had access to full time education and received the special educational provision in his Education Health and Care Plan causing distress and lost educational opportunity. We have found no evidence of fault in the way the Council considered these matters. So, we have completed our investigation.

The complaint

1. Miss X complains that the Council has failed to ensure that her son Y has had access to full time education for several years and failed to monitor and ensure the delivery of his SEN provision. Miss X says Y’s education and welfare have suffered because of this and she has been caused distress and time and trouble in pursuing her concerns.

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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. 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)
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. We usually only investigate matters back 12 months from the date of a complaint to us. Miss X complained to us in July 2025 so the investigation period would be July 2024 to July 2025. I have not investigated matters before July 2024 as Miss X’s concerns about matters from 2020 to July 2024 are late. There are no good reasons for us to exercise discretion to consider matters back to then as it has been open to Miss X to complain to us before now. This is especially as the Council advised Miss X in October 2024 to complain to us when responding to her complaints at stage 1 and 2.
8. Miss X also had appeal rights to SEND Tribunal available to her during the investigation timescales. I have explained later in this statement how the appeal rights limit what we can investigate.

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How I considered this complaint

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

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What I found

Legislation and statutory guidance

11. 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 plan

12. 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)
13. 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.

Reviewing EHC Plans

14. 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). Case law says councils must issue the final amended EHC Plan within a further eight weeks.

Alternative provision

15. 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.
16. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
17. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
18. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
19. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
20. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.

What happened in this case

21. What follows is a brief chronology of key events. It does not include everything I considered in my investigation. I have provided information from 2020 as background to Miss X’s complaints.
22. Y had been diagnosed with ASD, ADHD, sensory processing difficulties, and other health conditions. The Council first issued Y with an EHC Plan in March 2020 naming a mainstream school as Y’s placement. It says all children then had a very disrupted education for the next 18 months due to the COVID-19 pandemic and Miss X struggled at the time with this. The Council amended Y’s EHC Plan in October 2020 naming School B, a specialist therapeutic school, as Y’s placement. Y moved to School B in January 2021 being the earliest point he could start due to their age range. This was not an immediate full-time provision due to the continuing national lockdown restrictions.
23. The Council and School B held an annual review of Y’s EHC Plan in June 2021. Y was attending school full time although struggled with the transition into school at times. The Council and School B held an annual review of the EHC Plan in July 2022. The Council issued an amended EHC Plan in December 2022 naming School B as Y’s placement.
24. The Council and School B held an annual review in May 2023. It noted Miss X raised concerns about Y and considered provision had not been put in place as agreed so Y was struggling with anxiety and mental health. The review noted all were trying to support Y to help him with School B arranging for an OT and another therapy provider to start in May 2023 for support. The Council issued an amended EHC Plan in November 2023 naming School B as Y’s placement.
25. In April 2024 the Council held a meeting with School B as Miss X had complained about the school and Y having a reduced timetable. Miss X asked the Council to provide a personal budget for Y’s education. The Council declined Miss X’s request saying it already provided Y with a fully funded school placement. The Council recognised Y had not been attending school full time for an extended period. But said the aim was to increase attendance and build on his good progress so he attended full-time and have all his educational needs met at school.
26. Miss X agreed to work with School B and the annual review in May 2024 noted his attendance had improved. But was finding difficulty to keep focus with the longer days and often became dysregulated. Miss X agreed with School B that reducing the timetable would help. The review noted the school could increase the timetable again when Y was ready and it was just a temporary measure.
27. The Council said it shared the goal for Y to return to school full-time but needed to set practical expectations. It said the priority was to support him by accepting his challenges and ensuring Y felt heard. The Council was working with Y and Miss X to reassure it would manage his return to school at his pace. The review noted Y was being referred for trauma work after a CAMHS appointment as his school avoidant behaviours were emerging again.
28. Miss X complained to the Council at Stage 1 and 2 in August and September 2024 about Y being on a reduced timetable and not receiving the provision in his EHC Plan. The Council said it was aware Y had not been able to attend school consistently for several years despite being placed at a specialist school. It was working with School B towards a clear plan to increase Y’s education moving forward. An independent Educational Psychologist was coming into school to work with Y to help update knowledge of his needs. Y was also accessing alternative provision from School B one day a week besides the part-time timetable. The Council said there had been lots of communication over recent years about Y’s school hours so did not agree with Miss X’s allegation it had not taken any action. The Council said everyone needed to work towards a situation where School B was offering full days at school. And Y felt able to manage it and Miss X felt confident leaving him there for the whole day.
29. The Council arranged a meeting with Miss X and School B in October 2024 as Miss X raised further concerns about Y’s reluctance to attend school. And there had been further input from CAMHS. Miss X said she was grateful for all that was being done, but considered some professionals wanted Y back in school for longer. But she would only increase Y’s attendance at school gradually when he was ready. School B noted Miss X’s comments and said it was preparing to increase Y’s timetable with therapeutic and life skills opportunities as discussed. School B confirmed it had everything in place to support him and was happy to postpone the increase for a short time to give Y more time to feel secure.
30. The Council issued an amended EHC Plan in December 2024 naming School B as Y’s placement.
31. The Council held a meeting with School B and Miss X in February 2025 about Y’s support and timetable. Miss X confirmed her preference for Y to continue with a part-time timetable, and he was having some alternative provision during the week as well. School B planned to hold an annual review about Y’s part time timetable, progress and support in April 2025. Miss X requested no further contact from the school.
32. The Council met with School B in May 2025 for an interim annual review following a CAMHS report discharging Y from its service to discuss the next steps. It noted a significant change in Y’s needs and Miss X’s relationship with the school had broken down again. School B said Y was having weekly OT sessions and it shared a personalised plan for him with key staff.
33. The annual review in June 2025 noted that, although Miss X raised concerns, Y had been doing well that term and engaging in a wider variety of lessons. It noted Y’s confidence was growing.
34. Miss X raised further concerns with School B in July 2025 and issued a notice she intended to start legal proceedings. Miss X asked the Council for alternative educational provision or reduced hours. Miss X then told the Council said wanted the placement at School B to continue and submitted her complaint to us.
35. Miss X submitted a request for a reassessment of Y’s EHC needs in September 2025. The Council declined Miss X’s request, and she appealed to the SEND Tribunal.

Assessment

36. The documents provided by the Council show it has carried out an annual review of Y’s EHC Plan each year since 2021. This is the action we would expect a Council to take to ensure oversight of a child’s EHC Plan and special educational needs. The Council has provided copies of the meeting notes for the annual reviews including those in 2024 and 2025. These show that Miss X has been able to put forward her concerns about Y and had the opportunity to discuss the provision in place.
37. Miss X may have wanted Y to have a full-time education. But the documents show it had been agreed Y would have a part time timetable until he felt able to attend school on a more regular basis. The Council and School B were willing to increase the provision when needed and the school arranged alternative provision for Y as part of his placement. The evidence provided shows Miss X was involved in the discussions about the part time timetable and agreed to it. There is therefore no evidence of fault by the Council. It has carried out annual reviews of Y’s EHC Plan and discussed the part time timetable with Miss X.
38. If Miss X disagreed with the EHC Plan and provision it was open to her to appeal to the SEND Tribunal each time the Council issued a final amend EHC Plan following an annual review. So, Miss X could have appealed in December 2024. The Council was still working on an amended EHC Plan when Miss X complained to us in July 2025. It was therefore open to Miss X to appeal to the SEND Tribunal once the Council issued final amended plan after the annual review in June 2025.
39. 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). In this case Miss X was able to appeal to the First-tier Tribunal (Special Educational Needs and Disability) about council decisions regarding Y’s special educational needs. I consider it was reasonable to expect her to do so if she disagreed with the EHC Plan and provision being made. This is because the Tribunal can order changes to the EHC Plan and provision. Therefore, this limits what we can investigate once Miss X had the appeal rights available to her.

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Decision

40. I find no fault.

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Investigator's decision on behalf of the Ombudsman