Summary: Ms D complained the Council has failed to provide her daughter J with suitable full-time education that met her special educational needs. We found delay in putting provision in place which caused J to miss out on some education. The Council has agreed to make a payment to Ms D to remedy the injustice that caused.

The complaint

1. Ms D complained the Council failed to provide her daughter J with suitable full-time education that meets her special educational needs from February 2023 to December 2024.
2. As a result, J has missed out on education and her mental health has been adversely affected. Ms D has also been caused distress, her ability to support J’s sibling who has significant health needs has been affected and she had to give up work.

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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. 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.
5. 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)
6. 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.
7. 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)
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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. Ms D came to the Ombudsman in January 2025. I am therefore investigating the period January 2024 to December 2024. This is because the law says 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)
11. The 12-month period runs from the day the person affected had notice of the actions complained about. So in this case, Ms D was aware that J was not attending school and not receiving full-time education from February 2023 but did not complain to us about this until January 2025. This makes what happened in 2023 late. We may exercise discretion to investigate late complaints but I have seen no grounds to do so. This is because I have seen no good reasons why the complaint was not made to the Council in 2023 and brought to us sooner.

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How I considered this complaint

12. I considered Ms D’s complaint, the Council’s response to my enquiries and the Special Educational Needs and Disability Code of Practice ("the Code").
13. Ms D 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

14. 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 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)
15. 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.
16. 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

17. 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. (Education Act 1996, section 19)
18. 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)
19. 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)
20. 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.
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
23. 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’)

What happened

24. Ms D’s daughter, J, has ADHD, and social and communication and sensory processing difficulties. She also has mental health difficulties and receives support from CAMHS. In February 2023, J stopped attending School X. Ms D’s solicitor asked the Council to put in place alternative provision and to review the EHC plan.
25. A final EHC plan was issued in May 2023 naming School X until July and an unspecified specialist setting from September 2023. Ms D appealed to the SEND Tribunal about J’s needs, the provision, and type of setting set out in the plan
26. No specialist school had been found by September 2023 so the Council agreed to provide J with education other than at school for the 2023/24 academic year. This was to consist of a mix of one-to-one tutoring, therapeutic activities involving animals, and alternative education. In October, Ms D’s solicitor told the Council that the tutoring was not yet in place and J was only receiving nine hours a week support.
27. The Council replied to the solicitor on 3 January 2024. It accepted that not all J’s provision was yet in place. The Council has sent evidence which shows that six hours per week tuition and seven hours of animal therapies were started on 21 February. A further four hours of alternative provision was started in March and a further six hours of tuition from 15 April. By late April therefore, J was receiving 25 hours of education and support per week.
28. Ms D complained to the Council through her solicitor on 12 April that there was insufficient provision. The Council replied on 28 August asking what other provision was requested. Ms D escalated the complaint in September 2024. She said the Council had failed to provide suitable education since September 2021 and there had been a delay issuing the final EHC plan.
29. The Council’s final complaint response on 17 October apologised that it had delayed agreeing the interim provision for the academic year 2024/25, although some of the previous year’s package had continued. It would review J’s provision and was looking for a school placement.
30. In November, the Council conceded the appeal and the Tribunal issued an order requiring a specialist setting to be named in the plan. Further tuition was put in place in December 2024. J started at the new specialist school in January 2025.

My findings

31. The Council agreed to provide education other than at school for J for the 2023/24 and 2024/25 academic years. It apologised in January 2024 that not all of the provision was in place; the full package was not provided until mid-April 2024.
32. The Council has also apologised that there was a delay in agreeing the provision for the 2024/25 academic year although some continued from the previous year. Additional tuition was provided in December 2024.
33. I find there was service failure as the Council did not put the full educational or special educational needs provision in place from September 2023 to April 2024 (two terms) or from September 2024 to December 2024 (one term). This is fault which caused an injustice to J as she missed out on education, but the injustice is mitigated as some provision was in place.
34. 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 moderate, 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.
35. 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 this case, my view is that a figure of £900 per term is appropriate. In reaching this view I have taken into account:
• The severity of the J’s SEN as set out in her EHC plan.
• That some provision was made.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period was a significant one educationally, such as a key phase transfer.
36. Ms D says she was unable to work. We do not normally recommend remedies that reimburse loss of earnings. This is because we cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. Such payments are therefore best resolved by the courts. However, I consider she has been caused distress by the delay in putting all the provision in place.

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Action

37. Within a month of my final decision, the Council has agreed to pay Ms D:
• £2,700 to remedy the loss of educational and special needs provision for three terms.
• £300 to remedy the distress caused to her.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman