Summary: There was no fault by the Council during the period that is in the Ombudsman’s jurisdiction to investigate. The Council put in place alternative provision and changed the provision three times when the child did not engage.

The complaint

1. The complainant, Mrs X, complains the Council did not put in place educational provision before an Education, Health and Care (EHC) Plan was issued and that the provision in Section F of an EHC Plan obtained after the SEND tribunal was not provided.

2. Mrs X says that her son, Y, has missed education for a significant period.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

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. Mrs X complained to us in October 2025, so I have investigated events from October 2024 onwards, 12 months before Mrs X complained to us.
7. There is a right of appeal to the Tribunal against a councils:

• decision not to carry out an EHC needs assessment or reassessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;

8. The courts have established that if someone has appealed to the 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. 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.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
11. I have not investigated events after 21 March 2025. Mrs X appealed against the Council’s decision on the setting and provision in the EHC Plan. The failure to provide the provision in Section F of the EHC Plan is directly linked and cannot be separated from the appeal to the SEND tribunal.

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How I considered this complaint

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

14. A child or young person with special educational needs may have an 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. 
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.
   

16. Mrs X applied to the Council for an EHC Plan Needs Assessment on 5 November 2024. The Council decided not to carry this out on 21 November 2024. Mrs X appealed to the SEND tribunal against this decision.
17. The Council agreed to assess Y on 19 December 2024. The EHC Plan was issued on 21 March 2025 naming a mainstream primary school. Mrs X appealed the setting and provision to the SEND tribunal on 20 May 2025.

EHC Plan needs assessment

18. The law says that the Council has to issue an EHC Plan 20 weeks after it receives the request for a needs assessment. In this case the Council took 19 weeks and 3 days, so I find no fault on this point.

Alternative Provision from December 2024 until 21 March 2025

19. The information I have shows that Y was attending school on 20 November 2024. The Council said that Mrs X refused the suggestion of a placement at a resource base on 26 November, but I have not seen evidence that a formal offer of a place was available.
20. The Council agreed to provide alternative educational provision from 6 December 2024. It provided 16.5 hours a week of online tuition from 16 December but Y did not engage and Mrs X did not pick up a laptop from the school. A different offer of outreach provision for 3 hours per week was made on 17 January 2025 but Mrs X did not sign the agreement. Ten hours tuition at an online school and an animal therapy placement was offered from 21 March 2025.
21. The information I have shows that the Council put alternative provision in place for the period before the EHC Plan was issued and changed the provision when Y did not engage. I understand that the first tuition sessions were not successful and in response, the Council made a second offer of tuition. Mrs X refused this offer and there was a gap until Y was offered an online school.
22. I accept that there were gaps in the tuition offered to Y, but I have not seen evidence there was fault by the Council. The Council offered three different alternative provisions over the three months. I appreciate that Y was unable to engage with the provisions but this was not fault by the Council. The Council changed the provision offer when it became clear it was not suitable.

21 March 2025 onwards

23. I have not investigated this period, as it is outside the Ombudsman’s jurisdiction for the reasons given earlier in this decision. But, in response to my enquires, the Council has accepted there was service failure, in that a term’s worth of Alternative Provision from October 2025 until February 2026 was not put in place. The Council has offered a symbolic payment of £500, plus £100 for the delay in the 2025 annual review process. I am including the Council’s offer for this period for clarity but I have not investigated the period so cannot comment on whether the remedy is appropriate and Mrs X can contact the Council directly if she wishes to accept the offer.

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Decision

24. I have completed my investigation and I find no fault.

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Investigator's decision on behalf of the Ombudsman