Summary: Miss X complained about the Council’s failure to ensure her son (Y) received education and support included in his Education Health and Care Plan. We found fault with the Council in the way it carried out its alternative provision duty and reviewed Y’s Educational Health and Care Plan. The Council’s fault meant Y missed education and support he needed. It also caused significant distress to Miss X. The Council has agreed to apologise, arrange a meeting to check Y’s engagement with his post-16 education and make symbolic payments. The Council has previously agreed to improve its services.

The complaint

1. Miss X complained about the Council’s failure to ensure Y received education and support listed in his Education, Health and Care (EHC) Plan, which lasted for a few years.
2. Miss X said the Council’s failings meant Y missed education and preparation for his General Certificate of Secondary Education (GCSE) exams. She said his anxiety and social isolation had worsened. The Council’s failings caused distress and frustration to Miss X. They, she said, had impacted her mental health and meant she had extra costs.

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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 cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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. 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)
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. 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.
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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What I have and have not investigated

11. As indicated in paragraph five of this decision we normally investigate what happened within 12 months from when the complainant came to us. Miss X first came to us in June 2024. I have decided to investigate what happened from March 2023, when an Annual Review meeting for Y’s EHC Plan took place. This is because it would be difficult to look at the later events without examining what happened at the review. I cannot see any good reasons to investigate what happened before then as Miss X could have come to us earlier if she was dissatisfied with the Council.
12. Although Y’s final EHC Plan was issued in August 2024 and Miss X could have appealed, it would not be reasonable to expect her to do so. This is because Miss X did not dispute the content of Y’s EHC Plan. I have, therefore, investigated what happened after August 2024.
13. I finished my investigation in March 2025, when the Council confirmed it had completed the complaint process. I considered whether there was any ongoing injustice for Y and Miss X caused by the Council’s failings complained about up to the end of the school year 2024/2025. I did not consider anything from September 2025 as this is when the Council issued Y’s amended final EHC Plan following a key stage transfer review in November 2024. Y’s educational circumstances have now changed and he moved to post-16 education. If Miss X is still unhappy about any educational issues, she can either appeal or complain to the Council.

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How I considered this complaint

14. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
15. Miss X 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

Legal and administrative framework

Alternative provision

16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
18. 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)
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
20. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Delivery of special educational provision

21. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
22. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
23. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC Plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Annual Review

24. 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 discontinue 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) 
25. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Post-16 key stage transfer review

26. Where a child is within 12 months of a transfer between phases of education, the council must review and amend, where necessary, the child’s EHC Plan before 31 March in the calendar year of the child’s transfer from secondary school to a post-16 institution and where necessary amend the EHC Plan so that it names the post-16 or other institution or type of institution the child will attend following the transfer. (Special Educational Needs and Disability Regulations 2014, regulation 18 (1)(a))

What happened

Background

27. Y is 16 and is autistic. He has complex special educational and health needs, including separation anxiety and social phobia.
28. The Council issued Y’s first EHC Plan in 2017 and amended it in September 2022.
29. Y was placed in a special school for children with moderate learning difficulties in 2014 (the School) and it remained named in Section I of his EHC Plan.
30. At the beginning of 2023 Miss X contacted the Council about Y’s ongoing lack of education. Y was accessing a few hours a week of online provision arranged by the School (Provider 1) as well as weekly therapy at the School. Miss X was concerned about frequent cancellations of Y’s tutoring sessions.

March to December 2023

31. In the third week of March 2023 the School held an Annual Review meeting for Y. The notes said:
• Y was attending the School once a week for his therapy;
• because of his school non-attendance he did not access any support for his social and emotional development and independence;
• the School intended to provide him with individual support to increase his school attendance by October 2023;
32. In July the Council told Miss X it would amend Y’s EHC Plan.
33. At the beginning of August the School sent Miss X a proposed timetable for Y for September 2023. This included individual sessions from Provider 1 for two and a half hours twice a week and weekly therapy sessions.
34. At the end of September Miss X contacted the Council about her concerns regarding the amount of education Y had been accessing. He only managed to engage with an hour of online tuition once a week and continued with his therapy sessions. Miss X said it was the fourth year that Y was out of school.
35. In October 2023 Y was assessed by a Speech and Language therapist (SLT) and received a diagnosis of selective mutism.
36. Miss X told the Council about the outcome of the SLT assessment at the end of October. She also referred to the lack of amendments to Y’s EHC Plan following the Annual Review meeting in March 2023.
37. At the beginning of December 2023 the Council found out from the correspondence between Miss X and the School that the tuition from Provider 1 stopped suddenly due to the person delivering provision leaving. This had a negative impact on Y. It also coincided with the family bereavement.

January to August 2024

38. At the beginning of February 2024 the School reviewed Y’s EHC Plan. It was noted Y had been making progress with his school attendance before the person providing his tuition left, but all his progress was wasted due to the way this tuition stopped. The School proposed for a new adult to work with Y to ensure improvement in his school attendance. The Annual Review meeting notes mentioned that Y’s EHC Plan needed to be amended.
39. In March 2024 Miss X told the Council she was very concerned about the continuing lack of educational support for Y.
40. The School told the Council Y had been receiving tuition twice a week and would be given the School’s robot. It confirmed it would send the Annual Review documents. As a result of further correspondence and following the School’s meeting with Miss X, the School stated it would arrange alternative provision for Y.
41. Miss X came to us in the second week of June 2024. She said she had not come before as she had been constantly promised things which did not happen.
42. The Council responded to Miss X’s complaint at the beginning of July 2024. It said:
• in July 2023 the Council agreed to amend Y’s EHC Plan and carry out his SLT assessment;
• apologised for the delay in issuing a proposed amended EHC Plan for Y;
• the Council would be liaising with the School to ensure the increase of Y’s provision.
43. After sending its proposed EHC Plan amendments to Miss X in the second week of July 2024, the Council issued Y’s final EHC Plan in mid-August 2024. The new EHC Plan included provision for 12 hours a year of SLT.

September 2024 to June 2025

44. In October 2024 Y started receiving some tuition from the provider arranged by the Council (Provider 2). The Council commissioned eight hours of tutoring per week. This got disrupted by the onset of Y’s seizures.
45. At the beginning of November 2024 the Council carried out another review of Y’s EHC Plan due to him being in Year 11 and his key stage transfer approaching. He had not been able to build up school attendance due to his heightened anxiety. The School tried to get an outreach teacher to work with Y but this was not successful. The School failed to identify a suitable tuition provider.
46. In January 2025 the Council sought tutors to deliver provision for Y at home but could not find anybody who would be available.
47. The provision of tutoring for Y for up to eight hours a week started from May 2025.
48. In March 2025 the Council confirmed to us that they had responded to Miss X’s complaint.
49. Y’s final EHC Plan was issued at the beginning of September 2025. From September 2025 Y moved to the post-16 part of the School.

Analysis

Alternative provision

50. By March 2023 the Council knew Y could not attend his school and was receiving very little education. He had a few hours of tutoring a week and an hour of therapy at school.
51. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022,updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education. We expect councils to:
• consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll;
• consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• the chosen action into practice without delay to ensure the child is back in education as soon as possible;
• retain oversight and control to ensure your duties are properly fulfilled. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible.
52. The Council seemed to have relied on the School to make arrangements for Y’s education. As suggested above councils remain responsible for children’s education and should retain oversight. Until December 2023 the Council failed to decide whether it should have arranged alternative provision for Y when he was not attending school to ensure that he received suitable education. This is fault, which caused injustice to Miss X as she kept asking the Council to support Y and was frustrated by the Council’s failure to act.
53. Up to December 2023 we cannot say, even on the balance of probabilities, what the Council’s decision on alternative provision for Y would have been and whether Y would have been able to access more education. This is because the School commissioned Provider 1 for a few hours a week and Y was receiving therapy support from School 1. In autumn term 2023 Y formed a trusting relationship with Provider 1’s tutor and started making progress. The plan was to gradually increase educational provision for Y. In view of Y’s complex needs and later difficulties in finding suitable alternative providers for him, the impact of the Council’s failure to take decision on its Section 19 duty for Y on his education is uncertain. This uncertainty forms part of Miss X’s injustice.
54. After Y’s tutor from Provider 1 left unexpectedly in November 2023, Y did not receive any education till the end of the school year 2023/2024. It is likely that if the Council had followed the right process, it would have accepted its duty to arrange alternative provision for Y. The Council’s continuing failure to make a decision on its Section 19 duty meant Y lost two terms of education and Miss X was increasing frustrated by the Council’s failings. She also spent much time contacting the Council and trying to get support.
55. From September 2024 the Council accepted it should arrange alternative provision for Y. In October 2024 the Council commissioned eight hours of online tutoring a week, however Y could not engage with this provision. The Council tried to arrange home tuition for Y from January 2025 but was unsuccessful. The Council commissioned eight hours of home tuition a week for Y from May 2025.
56. The Council’s delays in arranging suitable tuition for Y were fault. They meant Y lost further two terms and a few weeks of education. This caused Miss X a significant distress.

Delivery of special educational provision

57. The Council failed to ensure that Y received all special educational provision included in Section F of his EHC Plan, which is fault. This failing was consequential to the Council’s failure to make decision on alternative provision and to ensure Y received suitable education. This is because all special educational provision in Y’s EHC Plan until mid-August 2024 were closely linked to the provision of education. In the amended EHC Plan issued in mid-August 2024 the Council added Y’s need for 12 hours of SLT a year. The Council failed to ensure Y received SLT in the school year 2024/2025.
58. When deciding what impact the Council’s failing with regard to its Section 19 duty had on Y, I have also considered the injustice caused to him by the non-delivery of his special educational provision.

Annual Review

59. There were significant delays with the Council’s actions after reviews of Y’s EHC Plan:
1. after the Annual Review meeting in March 2023 within four weeks the Council should have told Miss X that it intended to amend Y’s EHC Plan. This happened in July 2023, three months later. The Council failed to issue an amended EHC Plan for Y;
2. after an Annual Review meeting in early February 2024 the Council failed to send Miss X a letter with its decision to amend Y’s EHC Plan within four weeks. It happened in July 2024, four months later. The Council should have issued Y’s amended EHC Plan within 12 weeks from the Annual Review date. This was delayed by over three months;
3. after Y’s key stage transfer review in November 2024, the Council should have issued Y’s final EHC Plan by 31 March 2025. The Council delayed issuing Y’s final amended EHC Plan by five months.
60. The Council’s delays after reviewing Y’s EHC Plan were fault. This fault caused injustice to Y as his SLT support should have been added to Section F of his EHC Plan three months earlier. Besides the Council’s delays after the transfer review would have likely caused Y anxiety about the next stage of his education.
61. The Council’s fault caused also injustice to Miss X. She kept asking the Council to amend Y’s EHC Plan. She was distressed at the Council’s delays, which happened after each review of Y’s EHC Plan.

Service improvement

62. In a recent complaint, where we also found fault in the way the Council carried out reviews of the child’s EHC Plan, the Council told us it had introduced an Annual Review improvement plan. The plan includes ensuring that there is effective communication with schools regarding when Annual Reviews should be held and includes identification of Annual Reviews which have not taken place within the statutory timeframe, with a view of making improvements in this area. The Council has in place an Annual Review Coordination Oversight Group (COG), facilitated by one of its quadrant Assistant Directors. Data regarding Annual Reviews is shared on a monthly basis with the SEND Performance Board and there are requests by the board to share updated information regarding improvements against the plan.
63. In the last year we had a few complaints against the Council where we found fault in the way the Council carried out its Section 19 duty. The Council has agreed to:
• issue a staff briefing to all front-line staff who may come into contact with schools or parents to make them aware of the Council’s Section 19 responsibilities and understand they must make the relevant Council teams aware if a child of compulsory school age is not attending school full-time;
• remind staff of the importance of keeping Section 19 decisions under review where further information is required.
64. We recognise it will take some time for the Council to address its failings with reviews of the EHC Plans and Section 19 duty identified in this and our recent investigations. The Council has introduced new systems which aim to improve its services in these areas. We will be monitoring the effectiveness of the Council’s actions following our recommendations through our casework.

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Action

65. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Miss X and Y for the injustice caused to them by the faults identified. 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;
• arrange a meeting with Miss X to check how Y has engaged with the Council’s post-16 educational offer for him and whether he has been receiving all special educational provision included in his EHC Plan. The Council will send us notes from this meeting;
• pay Miss X £6,150 to recognise Y’s loss of education from January 2024 up to May 2025. The payment consists of £2,400 for two terms in 2024 and £3,750 for two terms and a few weeks in the school year 2024/2025;
• pay Miss X £1,000 to recognise her distress caused by the Council’s failings.

The Council will pay Miss X £7,150 in total.

The Council will provide the evidence that this has happened.

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Decision

66. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman