Summary: Miss X complained the Council failed to ensure her son, Y, received an education and the specialist provision outlined in his Education, Health and Care (EHC) Plan between April 2023 and July 2024 when he attended a school which said it could not meet his needs. The Council had sufficient oversight of Y’s education when Y’s school raised concerns and ensured support was in place to try and support Y to engage in the school environment. The Council was at fault for delays in consulting with an alternative placement during 2023 and it has already offered a suitable remedy.

The complaint

1. Miss X complained the Council failed to ensure her son, Y received an education and the specialist provision in line with his Education, Health and Care (EHC) Plan between April 2023 and July 2024. She said the Council named an unsuitable school in his plan which was unable to meet his needs.
2. Miss X said Y lost the opportunity to receive the education he was entitled to which has caused distress and uncertainty.

Back to top

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. 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).
5. 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.
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(i), 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

How I considered this complaint

8. I spoke to Miss X about her complaint and considered information she provided.
9. I considered the Council’s response to my enquiry letter.
10. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

EHC Plans

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.
12. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement. 
13. 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).
14. 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.

Annual reviews

15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. However, someone can ask for an early annual review if there is good reason such as a change of the child’s needs or if there is evidence the EHC Plan is no longer meeting their needs.
16. The responsibility for annual reviews, including early ones, lies with the council. However, in most cases it will delegate evidence gathering around why an early annual review is needed to the child’s school.
17. Statutory guidance supports this and states ‘in most cases reviews should normally be held at the educational institution attend by the child. Reviews are generally most effective when led by the educational institution as they know the child best’.

SEND Tribunal and relevant caselaw

18. 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.
19. There is a right of appeal to the SEND tribunal against the 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.
20. 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).
21. 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).

Alternative educational provision

22. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
23. 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) Another case (R(R) v Kent County Council [2007] EWHC 2135 (Admin)) established how an education authority’s duty to offer alternative education is determined where the reason for absence is “other” rather than illness or exclusion. This stated the duty is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question…”

What happened

24. Miss X has a son, Y who is of primary school age. Y has special educational needs and in April 2023 the Council issued him with an EHC Plan. The EHC Plan named a mainstream primary school, School 1. In response to the Council’s consultation, School 1 had told the Council that it could not meet Y’s needs or deliver the specialist provision outlined in the Plan with the funding proposed by the Council. The Council says the arguments put forward by School 1 were not based on the reasons a school can refuse set out in the Code and therefore it was still entitled to name it in Y’s EHC Plan. The Council said to Miss X at the time that it issued the EHC Plan so not to delay her right of appeal to the SEND tribunal.
25. The specialist provision outlined in section F included:
• Individual support from a teaching assistant through the whole day.
• A personalised curriculum.
• Use of a specialist timetable and resources.
• Social interaction sessions.
26. Records show Miss X did not want Y to attend School 1, believing it could not meet his needs. She asked the Council at the time to consult with a special school, School 2 which the Council agreed to do. It did not consult with School 2 until the end of June 2023 at which point it said it was full. Miss X says Y’s SEND case officer told her she did not need to appeal Y’s EHC Plan at that time. There is no evidence to support this.
27. Miss X complained to the Council in June 2023 mainly about the naming of School 1 in Y’s EHC Plan and its failure to consult with School 2 in a timely manner. Miss X said she was led to believe she did not need to appeal the Plan as it was actively consulting with School 2. She also pointed out that School 1 was not meeting Y’s needs and he was currently on a reduced timetable.
28. The Council told Miss X that if School 1 could not deliver the provision to Y or meet his neds then it needed to hold a review of his EHC Plan.
29. School 1 contacted the Council in late June and early July 2023 raising concerns that it was struggling to meet Y’s needs. The Council emailed School 1 and told it to hold an early review if it believed it could not meet Y’s needs. It said School 1 needed to evidence to the Council why that was the case and demonstrate what needs and provision it could not deliver in its environment. The Council asked School 1 whether it had made a referral to its SEND hub so it could provide some support to the school. The evidence shows the Council was under the impression School 1 had held the review and it asked the school for a copy of the paperwork. It chased the school a week later and the school replied towards the end of July to say the review should be held in September.
30. Attendance records show Y attended School 1 for the remainder of the 2022/23 and moved onto the part timetable for the three remaining weeks of the academic year.
31. After speaking with Miss X during August 2023, the Council proposed to hold the review at the start of October 2023 which all parties agreed on. The delay was partly due to the availability of the Council officers.
32. School 1 made a referral to the SEND hub in July 2023 and records show the hub offered support in September 2023. This included the involvement of a specialist teacher who observed Y at school and helped with planning and oversight. The SEND hub completed a report on their observations of Y for the forthcoming annual review meeting.
33. Attendance records show Y regularly attended school morning and afternoon in September and October 2023. There is evidence of a bespoke timetable in place for Y with support from the SEND hub as well as weekly small group Lego therapy sessions. School 1 also had a behaviour plan in place for Y.
34. The Council responded to Miss X’s complaint at stage one of its complaints procedure in early October 2023. It did not uphold Miss X’s complaint about naming School 1 in the EHC Plan. It said Miss X had a right of appeal if she disagreed. The Council apologised for not consulting with School 2 in a timely manner and offered Miss X £200 in recognition of that lost opportunity. It said the forthcoming annual review would discuss Y’s education in more detail.
35. School 1 held an annual review of Y’s EHC Plan in early October 2023 which a Council SEN caseworker attended. The annual review records noted:
• Y was presenting as a child in crisis.
• Y’s school days were shortened and he was not receiving a full-time education.
• School 1 could not provide Y with a full-time education.
• School 1 had high levels of concern about Y’s mental health
• School 1 was not appropriate to name on his EHC Plan.
• The Council agreed to consult with alternative placements.
36. Following the annual review meeting Y went onto a part time timetable with Miss X’s consent. A specialist practitioner also started working with Y twice a week for two-hour sessions.
37. Between October and December 2023, the Council consulted with various other placements, none of which responded positively to accepting Y.
38. Records show Y started attending a therapeutic alternative provision in November 2023 for two days a week. This increased to three days a week from April 2024.
39. At the end of December 2023, the Council issued Y’s amended EHC Plan which again named School 1 as his placement. This provided Miss X with another right of appeal to the SEND tribunal.
40. Miss X escalated her complaint to stage two and the Council responded in December. It had nothing further to add to the stage one response.
41. In January 2024 Miss X complained to us.
42. Since complaining to us Miss X appealed Y’s EHC Plan to the SEND tribunal against the naming of School 1 in section I. The tribunal application form stated Miss X wanted the Council to name a specialist school and pointed out Y was only attending School 1 for two hours at a time.
43. In April 2024 the Council issued a new amended EHC Plan for Y which named School 2 in section I from September 2024 and School 1 for the remainder of the 2023/24 academic year.
44. The SEND tribunal issued a consent order at the end of May 2024 which ordered the above. A consent order is issued where a council and parent have agreed the matter at appeal.
45. Following the consent order, Y remained attending School 1 on a part time basis, working with the specialist practitioner until the end of the 2023/24 academic year. He began attending School 2 from September 2024.
46. Miss X remained unhappy and complained to us.
47. The Council told us that it believed School 1 was suitable and appropriate for Y. It said when School 1 advised it to the contrary, it advised School 1 to hold an early review which it did not arrange until October 2023.

My findings

48. Much of Miss X’s initial complaint was around the Council’s decision to name School 1 on Y’s EHC Plan. The Council was entitled to name School 1 and this decision came with a right of appeal to the SEND tribunal. This appeal right was explained to Miss X in the decision letter and by the case officer and it was open for Miss X to have used that right, regardless of the consultation with the School 2. The Council has accepted it delayed consulting with School 2 which left Miss X with uncertainty around whether a space for Y may have been available if it had done so sooner. The Council has offered Miss X £200 to recognise this injustice which is appropriate and in line with our guidance on remedies. In addition, the Council believes Mrs X could have approached the tribunal at that stage and asked for a ‘late’ appeal.
49. Both Miss X and School 1 raised concerns about its ability to meet Y’s needs and provide Y the specialist provision in their EHC Plan from at least June 2023 onwards. The Council’s case officer gave School 1 advice on 20 June and asked it to provide evidence of why it could not deliver the provision through arranging an early annual review of Y’s EHC Plan. From 20 June to the end of the July term the Council repeatedly chased the school about when it was holding the annual review and for a copy of the paperwork when the school led the Council to believe the review had already been held. Although the early annual review was not held until early October, I am satisfied the Council had sufficient oversight and had tried to ensure the meeting was held sooner and it was not at fault.
50. The evidence is the provision set out in Y’s EHC Plan was secured and available at School 1. The issue in this case was School 1’s ability to deliver the provision to Y which was difficult due to his dysregulation while at school. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty when concerns are raised with the council that the provision in an EHC Plan is not being delivered.
51. As well as being involved in the early annual review process, the Council advised School 1 to make a referral to the SEND hub, which it did. The SEND hub provided support and carried out an observation. There is evidence of School 1 trying bespoke timetables and putting behaviour plans in place. Y’s attendance at School 1 was good, albeit for the periods when he was on agreed part time timetables. Therefore, I consider School 1 was “reasonably practicable” for Y to access. The provision in Y’s EHC Plan was heavily reliant on him being in a school environment to receive it. So, the steps taken are what we would expect to see when concerns are raised about child at school not receiving provision in an EHC Plan. It was logical to try and work with Y in a school environment rather than perhaps putting provision in away from the school environment. Therefore, I do not find the Council at fault.
52. Following Y’s amended EHC Plan in December 2023 Miss X had another right of appeal to the SEND tribunal which she used in February 2024. Although the Council issued an amended Plan in April 2024 naming School 2, the tribunal process did not conclude until the end of May 2024 when it issued the consent order. The tribunal is best placed to consider disputes around named placements. Given the restrictions outlined in paragraphs 18-21 I have not investigated the period January – May 2024.
53. Y remained on roll at School 1 for the remainder of the academic year on a part time basis, working with the specialist practitioner. In line with the amended EHC Plan, Y began attending School 2 from September 2024.

Back to top

Agreed action

54. Within one month of the final decision the Council agreed to pay Miss X the £200 already offered to acknowledge the frustration and uncertainty caused by the delays in consulting with School 2 during 2023.
55. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

56. I completed this investigation. I found fault and the Council agreed to my recommendation to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman