Summary: Miss X complained about the Council’s failure to ensure suitable education for her son (A) when he was out of school. We found fault in the way the Council discharged its Section 19 duty towards A and in its complaint handling. The Council’s fault caused injustice to A as he missed education and to Miss X as she was distressed at the lack of support for A. The Council agreed to apologise and make payments to Miss X to recognise A’s loss of education and her distress. In recent complaints we have recommended relevant service improvements, which we will monitor.

The complaint

1. Miss X says the Council failed to provide her two children, who have Education Health and Care (EHC) Plans with full time education. This meant they missed much learning and their development was affected. The Council’s failings also impacted the whole family as Miss X had to stay at home to support her children and could not undergo a surgical operation. Her caring role affected her mental health and well-being.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), 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. 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) The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
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 existence of an alternative remedy (such as a right of appeal to the SEND Tribunal) will preclude the Ombudsman from investigating, as a result of Section 26(6)(a) of the Local Government Act 1974, notwithstanding that that remedy may be incomplete. (R v Commissioner for Local Administration ex parte Field [1999] EWHC 754 (Admin); R v Commissioner for Local Administration (ex parte H) [1999] ELR 314)
11. When considering complaints we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
12. 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)
13. 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

14. Miss X complained about the Council’s failure to provide suitable education for her two children. This decision considers Miss X’s complaint about her son, A. I have investigated Miss X’s complaint about her daughter’s education under the reference number 25002850.
15. I have decided to look at what happened from the end of April 2023 even though Miss X came to us in October 2024 and we would normally investigate only the last 12 months. This is because the Council significantly delayed considering Miss X’s complaint. She should not bear any negative consequences of the Council’s failings. Besides, due to having three children with special educational needs and her own specific needs, which affect her ability to deal with administrative tasks, it has been more difficult for Miss X to challenge the Council.

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How I considered this complaint

16. I considered the evidence provided by Miss X and the Council as well as the relevant law, policy and guidance.
17. 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

18. 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.
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. 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)
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 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

22. 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)
23. 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)
24. It is inappropriate for the council to seek to delegate to the school the responsibility for ensuring that the requirements of a child’s EHC Plan are delivered. The statutory responsibility for securing the special educational provision specified in the EHC Plan rests with the council, not the school. It is for the council to prove that it is doing all it can to meet its legal duty to secure for a child the special educational provision to which he is entitled. (R (on the application of HXN) v Redbridge London Borough Council [2024] EWHC 443 (Admin))

Education Otherwise than at School (EOTAS)

25. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school. (Children and Families Act 2014 section 61(1)).

Complaint procedure

26. The Council’s complaint policy sets up two-stage process for corporate complaints. Stage one is dealt with by the service team relevant to the case. The Council will respond within 15 working days. If the investigation takes longer, the Council will explain the reasons and let the complainant know when they can expect a full response.
27. At stage two a senior officer who has not had any previous involvement in the case will respond within 20 working days setting out:
• the decision on the complaint;
• any intended actions or remedy;
• what to do if the complainant remains unhappy.
28. The timescales for completing stage two may be extended for good reasons such as when a case is complex. The Council will contact the complainant to explain why this has happened and when they can expect a response.

What happened

Background

29. After Miss X’s previous complaint in June 2022 the Council agreed to offer A a placement in a mainstream school with targeted special educational needs and disabilities (SEND) provision (the School). A started attending on a part-time timetable but stopped after an incident which happened in the School in November 2022.

A's education from April 2023 to the end of March 2024

30. After the Annual Review meeting in the spring of 2023, the Council issued A’s final amended EHC Plan in mid-April 2023 with the School named in Section I. It was noted:
• although A was not attending the School he was willing to engage with it;
• the parents and the School were in regular contact to discuss next steps and respond flexibly to his needs;
• A’s parents wished him to be able to access more education;
• A needed a well-planned and well managed transition back into school, including a flexible timetable.
31. In June 2023 the School asked the Council for extra funding for A to arrange ten hours per week of out of school education delivered by a specific alternative provider who supports children to re-engage with education (Provider 1). Miss X asked for an Education Otherwise than at School (EOTAS) package for A. The Council refused this request saying it needed to discuss matters further with the School.
32. In the autumn term 2023 the School arranged for an advanced teaching assistant (ATA) to provide some education to A at home. From early November A received five hourly sessions but in January 2024 ATA stopped tuition after a safeguarding incident which took place at home between A and his sister (B).
33. At the beginning of February 2024 the Council held an Annual Review meeting for A’s EHC Plan. The School stated it could not meet A’s needs and he was not attending.

A’s education from the end of March 2024 up to December 2024

34. At the end of March 2024 the Council issued A’s final amended EHC Plan with School 1 named in Section I.
35. School 1 continued to communicate with the Council about exceptional funding for A’s alternative provision. Miss X wanted to pursue education from Provider 1.
36. The Council consulted with some special schools for A. At the end of August 2024 the Council told Miss X that in response to its consultation a specific special school had agreed to assess A. The assessment did not happen because of A’s anxiety.

Complaint

37. Miss X complained about the inadequate education for A and B at the end of February 2024. She said A had not been able to attend school since November 2022. School 1 applied for Provider 1 but the Council refused it after a long wait. A received a few sessions from the advanced teaching assistant but this provision stopped after the incident that happened at home.
38. Three months later the Council sent its response to Miss X. It apologised for the delay and partly upheld her complaint. It said that although both children were on School 1’s roll this might not be suitable to meet their needs.
39. Two weeks later Miss X asked for her complaint to be considered at stage two.
40. At the end of August 2024 the Council told Miss X a senior officer who would be investigating her complaint was away, but they should respond by the end of the following week. After further correspondence with the Council Miss X brought her complaint to us in mid-October 2024.
41. In the second part of January 2025 the Council sent its stage two response to Miss X. It stated A and B had been on School 1’s roll and this arrangement remained after the review of their EHC Plans in March and June respectively. The Council was aware the children did not attend School 1, but did not have any evidence it was due to their medical needs. The Council was exploring a special school for A but in the meantime offered Provider 1 to him. The Council offered B a place in another special school from September 2024. Although Miss X remained concerned about the proposed arrangements as both children needed her help to get to their educational settings, the Council was confident it could secure the arrangements to overcome these difficulties. The Council offered Miss X £250 for her time and trouble.

Analysis

Our jurisdiction when appeal rights are engaged

42. We would generally not investigate a complaint when the issues complained of are matters which could have been appealed to the SEND Tribunal. Besides, the courts have found we cannot investigate any matter closely linked to the matters that could have been appealed.
43. If a person disagrees with the placement named in an EHC Plan we would generally not remedy a loss of education after the date the right of appeal could have been engaged.

A's education from April 2023 to the end of March 2024

44. Although Miss X could have appealed A’s EHC Plan issued in April 2023, in the circumstances I do not consider it would be reasonable for her to do so. A was not attending the School at the time but he wanted to re-engage with this placement. The School and A’s parents were discussing transition arrangements and had regular contact. It seems that when asking for the EOTAS package Miss X wanted to secure some education for him, until he managed to re-engage with the School rather than long-term. In its response to Miss X’s complaint in May 2023 the Council suggested for the School to submit another exceptional funding request and complete a referral for Provider 1. The Council reiterated its plan to support A’s re-engagement with the School. In the autumn of 2023 the School was making arrangements for some education for A and there is no evidence the School’s suitability for A was queried until later in the year. In such circumstances we would not expect Miss X to have to appeal to secure suitable education for A. I could, therefore, investigate what happened from April 2023 to the end of March 2024.
45. 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:
1. consider the individual circumstances of each case and be aware 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;
2. consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions;
3. 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;
4. keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
5. 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;
6. put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
7. 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.
46. At the Annual Review of A’s EHC Plan in spring 2023 his school non-attendance was discussed. A was not receiving education as he had not attended the School since November 2022 and there is no evidence the Council considered whether it should arrange alternative provision for A. The Council only looked at this matter after the School asked for extra funding in June 2023.The Council refused the request for Provider 1 but arranged ATA to deliver tutoring sessions to A from November 2023. We would not criticise the Council for looking for a better value educational provision, but there was a significant delay in making these arrangements which meant A was not receiving education and special educational provision between April and November 2023.After the incident at home between A and his sister in January 2024 ATA stopped providing tutoring to A. The Council reviewed A’s EHC Plan in February 2024.
47. The Council’s delay in considering reasons for A’s non-attendance and whether A could access the School is fault. If the Council had made a decision following the Annual Review of A’s EHC Plan in March 2023, it is more likely than not that it would have decided A needed alternative provision. This is because in June 2023, in the same circumstances, the Council decided A should receive tutoring at home from ATA.
48. In its comments to my draft decision the Council stated A’s circumstances changed between March and June 2023. In March 2023, the Council said, A’s absence from the School had been considered short-term but by June 2023 it had become apparent A’s school non-attendance had been longer term as all the School’s re-engagement efforts had proven unsuccessful.
49. A stopped attending the School in November 2022 and the Annual Review of his EHC Plan took place in March 2023. The child’s absence from school for over a term cannot be seen as short term. After the incident in November 2022 the School continued its efforts to re-engage A and the Annual Review in spring 2023 should have triggered the Council’s consideration of its Section 19 duty.
50. Once the Council decided it owed A section 19 duty it delayed putting provision in place. Providing a weekly session of tutoring could not be considered as an equivalent of full-time education. There is no evidence the Council looked at whether A could access more tutoring. The Council seemed to have relied on the School to arrange alternative provision for A but, as pointed out in paragraph 45(g) the Council remains responsible and should retain oversight.
51. The Council’s failure to arrange suitable education for A when he could not access the School is fault.
52. The Council’s fault caused injustice to A and Miss X. A missed much education and academically was getting more and more behind his peers which must have undermined his confidence. Miss X was increasingly frustrated with the lack of any education for A up to November 2023 and very limited provision between November 2023 and the end of January 2024. Miss X was distressed the Council kept refusing to fund Provider 1 but was not offering any alternative.

A’s education from the end of March 2024 up to December 2024

53. At the next Annual Review meeting in February 2024 the School stated it could not meet A’s needs and was unsuitable for A. In A’s final amended EHC Plan issued in March 2024 the School was named in Section I.
54. If Miss X was not satisfied with A’s education it would have been reasonable for her to appeal the EHC Plan issued in March 2024. This is because A was on the School’s roll from September 2022 and, as suggested in the documents of the Annual Review carried out in 2023, the School made every effort to re-engage A. By spring 2024 the School accepted it could not meet A’s needs.
55. Because A’s school non-attendance was linked to his special educational needs, as explained in paragraphs 42 and 43 we would not look at the Council’s actions regarding its section 19 duty from the date when A’s final EHC Plan was issued in March 2024 as this is when the plan could have been appealed.

Complaint handling

56. The Council delayed its response to Miss X’s complaint by two months at stage one and by six months at stage two. The Council failed to regularly communicate with Miss X about her complaint and provide its reasons for the delay. The Council also sent misleading information to Miss X advising her at the end of August 2024 that she would receive her stage two complaint response within two weeks, which did not happen.
57. In its stage two response the Council included factually false information. It said it had offered Provider 1 for A as an interim provision which had not been the case.
58. The Council’s failings with its complaint handling are fault. They caused injustice to Miss X as she was increasingly frustrated with the delay and lack of resolution. She spent much time and trouble contacting the Council.

Service improvement

59. In recent complaints against the Council where we found similar failings we have recommended some service improvements. The Council agreed to:
• remind relevant officers and managers to make and store clear and accurate records of Education Act 1996 section 19 decision making in relation to arranging suitable education for pupils who are out of school;
• remind officers that they should consider if the Council has a duty under section 19 of the Education Act 1996 to provide alternative education provision when a child is not attending school for a period of time and strategies to reintegrate them have been unsuccessful;
• emphasise to staff that they must consider whether the Council should arrange alternative provision for a child, even when it is trying to find a new school place for that child. The duty is not automatically discharged by the Council providing standard or exceptional funding to schools for a child's education;
• review its alternative education policy to ensure the Council recognises its responsibility to retain overall responsibility for alternative education for pupils out of school;
• consider what steps it can take to reduce the backlog of complaint responses and report back to the Ombudsman with the steps the Council is taking to address this.
60. We recognise it will take some time for the Council to address its failings. Through our casework we will be monitoring the effectiveness of the Council’s actions following agreed recommendations.

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Action

61. 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 Y and Miss X 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;
• pay Miss X £4,350 to recognise the loss of A’s education between April 2023 and March 2024;
• pay Miss X £500 to recognise the distress caused to her by the Council’s failings;
• pay Miss X £250 for her time and trouble caused by the Council’s failings with complaint handling.

The Council will provide the evidence that this has happened.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman