Summary: Ms F complained the Council failed to put in place alternative provision for her daughter and delayed issuing a final EHC Plan. As a result, her daughter’s education has suffered and the family was caused significant stress. We found there was a five-month delay in issuing the plan and fault in not providing alternative provision for three school terms. The Council has agreed to apologise and pay Ms F £6,000 to be used for her daughter’s educational benefit to remedy the injustice.

The complaint

1. Ms F complained the Council:
• Failed to put in place alternative provision for her daughter when she stopped attending school in July 2023.
• Delayed issuing a final EHC Plan after the Tribunal’s order of 31 May 2024.
• Did not respond to her complaints.
2. As a result, her daughter’s education has suffered and the family has been caused significant stress.

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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 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)
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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
7. 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.
8. 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)
9. 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)
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

11. I spoke to Ms F about her complaint and considered the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the SEND Regulations”)
12. Ms F 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

Relevant law and guidance

Special educational needs

13. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
15. If the council concedes to the appeal, the SEND Tribunal will issue a consent order. The Regulations say the council must start the EHC needs assessment within two weeks of the decision. If the council decides as a result of the assessment to issue an EHC plan, it must issue the final EHC plan “as soon as practicable” and in any event within 14 weeks of the consent order. (SEND Regulations 2014, Regulation 44(2)(b)(ii))
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
17. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Alternative provision – duty to arrange

18. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education at school or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school, or otherwise, may not for any period receive suitable education unless such arrangements are made for them.
19. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school, and whatever type of school they attend. (Statutory guidance ‘Alternative Provision’, January 2013)
20. 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)
21. The courts have said if illness prevents a child from attending a particular school, it is likely to prevent that child from attending any school. The test is therefore whether the child is too unwell to attend any school, not just the school where they are on roll.
22. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
23. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation with a view to increasing their hours as appropriate.

Alternative provision - reintegration

24. The fact a child does not attend school for 15 days does not necessarily mean a council has a duty to provide alternative provision.
25. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education. The guidance states that: “We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.”
26. The guidance also says councils may work with schools to set up an individually tailored reintegration plan for each child.

Alternative provision – suitable education

27. If a council decides alternative provision must be made, there is no statutory requirement as to when it should begin for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
28. The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs he or she may have. The education to be arranged by the local authority should be on a full-time basis unless, in the interests of the child, part-time education is considered to be more suitable.
29. Somerset Council has medical tuition provision for pupils “who are physically ill, injured or who have clinically defined mental health problems … [and] … evidence from a medical professional.”

The Council’s complaints procedure

30. The Council has a two stage complaints procedure. It aims to respond within a maximum of twenty working days.

What happened

31. For clarity, I have set out what happened for each element of Ms F’s complaint separately, although the events overlap. I have set out the key events, this is not meant to detail everything that happened.

EHC needs assessment and plan

32. Ms F’s daughter, J, has autism and is a child in need. Ms F had requested an EHC needs assessment. The Council refused to assess in May 2023 and Ms F appealed to the SEND Tribunal.
33. In May 2024, the Council conceded the appeal and the Tribunal issued a consent order on 31 May that required the Council to assess J’s EHC needs. If this assessment resulted in an EHC plan, the regulations say the final plan had to be issued by 6 September 2024.
34. Ms F wanted J’s provision to be education other than at school or college (EOTAS). The Council issued a draft EHC plan on 7 October. Ms F submitted comments on this on 16 October.
35. The Council issued the final EHC plan on 31 January 2025. This was 21 weeks later than the deadline set by the Regulations. The plan said J’s provision would be EOTAS consisting of a home tutor and other provisions.

Alternative provision

36. In spring 2023, J was struggling to attend School X due to anxiety. Ms F arranged alternative provision at a farm school. She says J’s anxiety increased and she had stopped attending School X completely by July 2023. From then she only attended the farm school two days a week. J’s absence was marked as unauthorised by School X.
37. The Council says School X supported J with a nurture forest school group, Talkabout, one-to-one PFSA sessions, alternative school entrance, meet and greet, parental support, seating plan, and communication cards. Ms F says J had to sit alone and there was no parental support from the school.
38. Ms F says the lack of an EHC plan meant J was not supported sufficiently at school, causing her to be unable to attend.
39. The Council’s education engagement officer met with School X and Ms F on 10 October 2023 so at that point the Council was aware that J was not attending. School X emailed the Council on 1 November. It said J had not returned to school after the summer holiday. Ms F brought her to the school grounds once a week although J would not engage with staff. The school would try to encourage J to go into the school.
40. Ms F emailed the Council on 29 November asking for alternative provision to be put in place for J. The Council’s case records show there was a meeting at School X on 22 January 2024 but I have not seen the outcome. Ms F emailed the Council on 9 February 2024 asking for alternative provision to be arranged. I have not seen evidence of a response.
41. I have seen no evidence the Council reviewed a reintegration plan or whether the School’s efforts in getting J to attend were working. Nor have I seen evidence the Council considered whether school was “reasonably available and accessible” and whether it owed a section 19 duty to arrange alternative provision for J.
42. At a team around the family meeting on 5 March, School X said it would reapply for funding for the farm school. Ms F complained to the Council that alternative provision had not been put in place.
43. The Council replied to the complaint on 23 April. It said the Council had tried to understand J’s needs but this had not resulted in her being able to access regular learning either at school or elsewhere. The Council would review J’s needs and put tuition in place.
44. A meeting was held on 6 June but there is no evidence it considered whether to put tuition in place.
45. Ms F made a further complaint in November that alternative provision was not in place. The Council offered to refer J to a tutor as interim provision until a final EHC plan had been issued. Ms F asked if the interim tutor would remain as the EOTAS provider. The Council was unable to respond to this as it had not yet issued the final EHC plan setting out what J’s provision would be.
46. The Council says that as Ms F had not consented to the referral it could not put tuition in place.
47. After the final EHC plan was issued in January 2025, the Council started to make arrangements to secure an EOTAS package. Funding was agreed from 11 March 2025. Ms F told me she had since made further complaints about the provision and was appealing the EHC plan.

Complaint handling

48. Ms F emailed the Council on 23 November 2023 as she had not had a reply from an earlier email to the School. The Council replied on the same day.
49. The Council issued its stage one response to Ms F’s complaint of 5 March on 23 April. This is 13 working days later than the deadline in the Council’s complaints policy.
50. Ms F came to the Ombudsman in April 2024 but it was too soon for us to investigate as she had not yet been through stage two of the Council’s complaint procedure.
51. Ms F made a further complaint to the Council on 13 November 2024 which was treated as her stage two request. The Council sent its final response on 11 December 2024. It upheld her complaint and accepted that J had been left without a suitable education and that there had been a delay in issuing the final EHC plan.

My findings

EHC plan

52. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Following the Tribunal’s consent order, the Council had to progress the assessment so it could issue J’s final EHC plan within 14 weeks of the order, i.e. by 6 September 2024. It was not issued until 31 January 2025, which is a 21-week delay.
53. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there were resource pressures on the Council, J’s EHC plan was issued five months late, which is fault.
54. This delay caused Ms F distress and delayed her appeal rights. It also meant J missed out on special educational needs provision from September 2024 to March 2025 (about two school terms). This is injustice.

Alternative provision

55. The law is clear that councils must intervene and provide education under Section 19 if no suitable educational provision has been made by their school, for a child who is missing education through exclusion, illness or otherwise.
56. On the evidence seen, the Council was aware in October 2023 that J had stopped attending School X. At this point it should have worked with School X to put a reintegration plan into place. Whilst there is evidence of meetings in October 2023 and January 2024, I have not seen evidence that the Council considered a reintegration plan.
57. Nor is there evidence it considered whether J was too ill to go to school and whether school was available and accessible to her. This is fault but I consider it unlikely that if the Council had considered these matters in winter 2023, it would have decided it owed a section 19 duty. This is because it would have been reasonable to allow School X to try to reintegrate J.
58. However, by January 2024, the Council should have reviewed how the reintegration plan was working and intervened if J was not receiving a suitable education, I have seen no evidence it did so. This is fault.
59. I have seen no evidence that the Council considered whether School X was suitable and available and accessible to J, or decided what J's educational needs were, how these were being met, and whether she was getting a suitable education. It did not consider whether alternative provision was needed, and if so, how much education she could cope with. As a result, the Council failed to develop a plan for J's education. This is fault.
60. In its complaint response of April 2024, the Council agreed to put alternative provision in place. But the tuition did not start until March 2025 after the final EHC plan had been issued. Whilst the Council was in discussion with Ms F in June, I have seen no evidence of any action being taken to put tuition in place until November. That is fault.
61. My view is that J’s alternative provision should have been put in place by February 2024. It was not arranged until March 2025, which is a full school year (three terms) delay.
62. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
63. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In determining the figure, we consider the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Whether there was also a loss of special education needs provision (such as OT and SALT).
• Whether the parent was caused a delay in appealing to Tribunal.
64. Having considered these factors, my view is that £2,000 per term is appropriate to remedy the injustice. This should be used for J’s educational benefit.
65. We have made a number of service improvement recommendations to the Council in relation to its special educational needs service in the last two years and we are aware the Council has a SEND improvement plan. I therefore do not make any further service improvement recommendations.

Complaint handling

66. The Council’s stage one complaint response in April 2024 was issued 13 working days later than the deadline in its complaint policy. This is fault but I do not consider it caused significant injustice to Ms F.

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Action

67. Within a month of my final decision, the Council has agreed to apologise to Ms F and pay her £6,000 to be used for J’s educational benefit.
68. The Council should provide us with evidence it has complied with the above actions.

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Decision

69. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman