Summary: Mrs X complained the Council failed to ensure her child D received suitable alternative education when they were out of school. The Council was not at fault in how it considered its duty to provide alternative education to D. However, it accepted it delayed in reviewing D’s Education, Health, and Care Plan, and responding to Mrs X’s complaint, which caused her distress, time, and trouble. The Council apologised and offered a financial remedy. Following our investigation, it agreed to go further to remedy the injustice caused, by paying an increased financial remedy. It will also report to its relevant oversight committee about how it will address its complaints backlog.

The complaint

1. Mrs X complains the Council failed to ensure her child D received suitable alternative education when they were out of school from December 2023 to September 2024. She also says the Council took too long to respond when she raised concerns and complaints about this.
2. Mrs X also complains the Council did not properly update D’s Education, Health, and Care (EHC) Plan and ensure it met their needs in previous years, from 2021 to 2024.
3. Because of this Mrs X says she experienced frustration and D missed suitable education. Mrs X wants the Council to apologise and pay a financial remedy. She also wants it to change its processes and procedures to ensure it meet its statutory duties to children with special needs and who are out of school.

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The Ombudsman’s role and powers

4. 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)
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. 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)
7. 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)
8. 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)

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How I considered this complaint

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

Legislation and guidance

Education, Health, and Care (EHC) Plans

12. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
13. 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. 
• Section I: The name and/or type of educational placement 
14. 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)  

EHC Plan 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. 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) 
16. 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.

Alternative education while out of school

17. 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. We refer to this as section 19 or alternative education provision.
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. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
20. The Courts have found that it is a judgement 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])

EHC Plan appeal rights

21. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the Tribunal in this decision statement.
22. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the SEN provision specified, or the school or placement specified in the EHC Plan; and
• amendment to these elements of an EHC Plan.

23. We cannot direct changes to the sections of an EHC Plan about a young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
24. 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)
25. This means 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.
26. 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.
27. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.

What happened

28. In September 2023, D started year 9 at their special school placement, School A. The Council had issued their latest EHC Plan in March 2023.
29. In early-December 2023, Mrs X asked the Council to review D’s EHC Plan. She expressed concerns about D’s mental and physical health and asked that D be provided alternative education at home instead of attending School A. D stopped attending school altogether in mid-December 2023, and Mrs X made the Council aware of this.
30. In April 2024, D was still out of school. Mrs X had continued to contact the Council seeking an EHC Plan review and alternative education. As a result, an EHC Plan review meeting was held in April.
31. Following the April review meeting, the Council issued a final amended EHC Plan for D in June 2024. This still named School A in Section I. Mrs X appealed to the SEND Tribunal because she disagreed this remained a suitable school placement for D. She also disagreed with sections of the Plan about D’s needs and provision.
32. In July 2024, Mrs X complained to the Council because D was still out of school with no education in place.
33. In September 2024, the Council had not yet responded to Mrs X’s complaint. However, it had agreed a new educational placement for D, Placement B. This was Mrs X’s preferred placement. D began year 10 at Placement B in September. The Council then issued an amended EHC Plan for D, naming Placement B, in November 2024.
34. Mrs X had brought her complaint to the Ombudsman in October 2024 because she still had no complaint response from the Council. After we chased this, the Council responded at Stage 1 of its complaints’ procedure in January 2025. The Council:
• accepted D had no education in place from December 2023 to mid-2024, and said it “struggled to find a suitable education provider or secure any alternative provision for [D]”;
• accepted its communication with Mrs X had been poor, saying, “communication with you throughout this period, from December 2023, was not at the level we expect as a service, and I apologise for this”; and
• apologised for the delay in responding to Mrs X’s complaint made in July 2024 and offered her £200 to recognise the time and trouble caused.
35. Mrs X escalated her complaint to Stage 2. The Council failed to respond in good time, so we began our investigation in April 2025. In June 2025, while our investigation was ongoing, the Council responded to Mrs X at Stage 2. The Council:
• explained after reviewing the complaint further it had decided it was not at fault in how it considered whether it should provide D with alternative education while out of school. It said it had properly considered and responded to Mrs X’s requests for alternative education, but decided suitable education was available and accessible to D at School A during year 9, so the section 19 duty did not apply;
• apologised for delays in reviewing D’s EHC Plan. It accepted it should have arranged this when Mrs X first sought it in December 2023. It said delays in reviewing the Plan had frustrated Mrs X’s right to appeal about the content of the Plan to the SEND Tribunal. However, it considered this had caused limited injustice because the Council had since agreed to amend the Plan to name Placement B, and D had been accessing this since September 2024. It also said the June 2024 EHC Plan had included an increase in funding to School A for D’s SEN provision, so the review delays had delayed this funding increase. However, it said this also caused limited injustice because the June funding increase was only approved for School A, which Mrs X disagreed was suitable, and which D did not return to. The Council said it therefore did not consider it should provide a financial remedy for the EHC Plan review delay due to the limited injustice caused. It said it would remind staff of the correct timescales for EHC Plan reviews; and
• apologised for significant delays in responding to the complaint at both Stage 1 and Stage 2.

What I have and have not investigated

36. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons it took them longer to complain. Mrs X first came to the Ombudsman in October 2024, so we would usually only look at what happened after October 2023. I have investigated events after December 2023, when Mrs X asked the Council to review D’s EHC Plan and made it aware D was out of school. I decided Mrs X could have complained to the Council sooner about any failure to update D’s EHC Plan and ensure it met their needs in previous school years. Mrs X also could have complained to the Ombudsman, or appealed to the SEND Tribunal, about those earlier events at the time. There are no good reasons why it took her longer to complain.
37. Mrs X appealed about the June 2024 EHC Plan to the SEND Tribunal, including about the suitability of the school named in the Plan. Therefore, as explained at paragraphs 25 and 26, I cannot consider education D missed after the Council issued that Plan on 24 June 2024, and the right of appeal arose.

My findings

Suitable education while out of school

38. The Ombudsman is not an appeal body. I cannot make a decision in the Council’s place about whether there was suitable education available which was “reasonably practicable” for D to access. We investigate the processes a council followed, to assess whether it made its decisions properly.
39. When we began our investigation, the Council had not yet issued its final position about Mrs X’s complaint. I considered the Council’s June 2025 Stage 2 complaint response, and found it properly and adequately explained the order of events, and how it considered its section 19 duty for D. I found no fault in how the Council considered this and decided the section 19 duty did not apply, or in how it communicated with Mrs X about it. I cannot question the Council’s decision simply because Mrs X disagrees with it.

EHC Plan review delays

40. The Council accepted it was at fault because it delayed in reviewing D’s EHC Plan. If the Council had acted on time, it would have issued the June 2024 EHC Plan three months earlier, by the end of March 2024.
41. I mostly agree with the Council’s position about the limited injustice this caused in the circumstances. This delay did not change anything in terms of the education and SEN provision D received. However, the Council should provide a financial remedy to recognise the frustration caused to Mrs X by the EHC Plan review delays.

Complaint handling

42. The Council accepted it was at fault because it took too long to respond to Mrs X’s complaint at both stages. This caused delays of around nine months, and avoidable time and trouble to Mrs X in raising her complaint with the Ombudsman so we could chase a response on her behalf.
43. In its Stage 1 response the Council offered Mrs X £200 to recognise the time and trouble caused by complaint handling delays. The Council should increase this financial remedy, to account for:
• the added delays at Stage 2; and
• the confusion caused to Mrs X because it wrongly accepted fault in relation to its Section 19 duties at Stage 1 without properly investigating the issues. This meant it then had to change its position about this at Stage 2.
44. We found fault with the Council in a previous case in August 2024, for delays in handling complaints about its SEN service. We found it had a backlog of complaints, and it agreed to update us on the steps it was taking to address this. The Council provided evidence of training it delivered to staff in August 2024 about complaint handling timescales. Mrs X complained in July 2024, and the Council significantly delayed in responding to her complaint, with a final response only issued in June 2025 after we began our investigation. This shows steps taken by the Council in response to our previous findings were unsuccessful in reducing its complaints backlog. I have therefore recommended further actions the Council should take to address this.

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Action

45. The Council already accepted the faults I identified and apologised to Mrs X for the impact of these faults. I do not see any value in directing it to make a further apology now. However, it should go further to remedy the injustice caused.
46. Within one month of our final decision the Council will pay Mrs X a total of £500, comprising of:
1. £100 to recognise the distress and frustration caused to Mrs X by the EHC Plan review delays; and
2. £400 to recognise the time and trouble caused by its faults in complaint handling (this is instead of the Council’s previous offer of £200).
47. Within three months of our final decision, the Council will produce a report about its SEN complaints backlog and the actions it will take to reduce this, by a specified date. It will ensure this report is scrutinised at its relevant oversight committee or board.
48. The Council will provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice, which the Council accepted in its response to the complaint. The Council agreed to my recommendations for further actions it should take to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman