Summary: We found fault by the Council on Miss Y’s complaint about it failing to ensure her daughter received provision set out in her Education, Health and Care plan when on a reduced timetable. It failed to consider whether it needed to provide suitable alternative education and did not meet the statutory timescales following her annual review. The Council agreed to send Miss Y an apology, pay £3,000 for the distress caused, remind officers about the triggering of the section 19 duty for children out of school with a plan, and ensure processes are in place to monitor and review children with plans on part-time timetables. It will review why delays happened, produce an action plan showing how it will meet statutory timescales, and remind officers of the need to communicate with parents whose children are in similar situations.

The complaint

1. Miss Y complains about the Council failing to ensure her daughter, Z, who has an Education, Health and Care (EHC) plan, received:
1. the provision it set out when she was on a reduced timetable from September 2023 and out of school from September 2024;
2. suitable and full-time education under alternative provision; and
3. her annual review within the required statutory timescale.
2. As a result, she missed a significant amount of education and provision, made little or no progress against her EHC plan outcomes, all of which affected her mentally. It also caused the family a great deal of stress, frustration, and effort, as well as costing her financially as she paid privately for some provision.

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The Ombudsman’s role and powers

3. 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)
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 a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said section 26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
8. 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

9. I have not investigated the following:

• The issues she appealed to the Tribunal, about the contents of sections B (identified special educational needs), F (special educational provision required by Z), and I (the name and type of the learning setting Z will access) of the EHC plan. This means her complaint about the Council failing to name her preferred school in the EHC plan is not within our jurisdiction. This was because she had, and has used, the right to appeal its decision to name another school.
• I cannot investigate any complaint she had about Z’s lost free school meals. This was because we do not have jurisdiction to investigate it. The duty to provide free school meals is not the responsibility of the council but the maintained school (Transfer of Functions Concerning School Lunches etc.) (England) (No.2) Order 1999 and Transfer of Functions Concerning School Lunches etc. (England) (Amendment) Order 2013). This means the school is not a body in our jurisdiction.

10. I decided the matters I am investigating are not connected to her appeal to the Tribunal. This was because her grounds for appealing include: section B of the EHC plan failing to include an accurate and updated description of Z’s special educational needs; section F failing to provide an appropriate level of provision for her.

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How I considered this complaint

11. I considered all the evidence provided by Mrs Y, the notes I made of our telephone conversation, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs Y and the Council. I considered their responses.

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What I found

Education, Health and Care Plan

12. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
13. 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)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC plan. We consider councils should be able to show appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

15. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC plan;
• amendment to these elements of an EHC plan;
• decision not to amend an EHC plan following a review or reassessment; and
• decision to cease to maintain an EHC plan.

16. The courts decided 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)
17. 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.
18. 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 we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC plan are finalised, so long as the council follows the statutory timescales to make those amendments.
19. 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;
• support in an EHC plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

Reviews of EHC plans

20. 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 take place. The process is only complete when the council issues a decision about the review.
21. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend, or discontinue the EHC plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
22. 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) EHC 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.
23. The council must then issue any final amended EHC plan within eight weeks of the amendment notice. This means a final EHC plan must be issued within 12 weeks of the review meeting. (R (L, M and P) v Devon County Council)

Alternative Provision

24. 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.
25. 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)
26. 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))
27. The education provided by the council must be full-time unless the council decides 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)
28. 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’)
29. The courts considered the circumstances where the section 19 duty applies. Case law states 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)

What happened

2023:

30. Miss Y was unhappy her daughter, Z, was on a reduced school timetable since starting Reception class in September. Z has Emotional Based School Avoidance (ESBA). This is not a medical diagnosis but describes children who experience challenges attending school due to negative feelings, such as anxiety.
31. Miss Y believed the aim of the reduced timetable was to build it back up, but this did not happen. The last time she was at school, Z was only there for 1-2 hours a week.
32. In November, Z’s final EHC plan was issued and set out the provision she needed. Annual reviews should be held every six months.

2024:

33. In January, there was evidence of temporary reduced timetable planning with the aim of Z receiving 18 hours a week at school. This ran into February and March (about 16 hours a week), April (6 hours week), and May (6 hours). This reduction was a strategy to help Z return to school.
34. In February, Miss Y contacted the Council about Z’s attendance. She claimed she told the Council about what was happening on at least 12 occasions between February to August 2024.
35. In May, there was an annual review. The school’s submissions explained Z was on a reduced timetable and there was a two week period when she did not attend at all. While Z was on a reduced timetable of six hours a week, Mrs Y struggled getting her to school. There were discussions about alternative provision with Miss Y but, this was limited because of funding. The school said it did not have the provisions or resources to consistently meet that need. More needed to be done to ensure she had the right setting.
36. Miss Y said it was now clear the school could not meet Z’s needs. Reintegration, and increasing her hours at school, were unworkable. The school agreed. She confirmed Z was on a part time timetable with 26.6% attendance recorded. She also highlighted Z could not access her current school environment and had made no educational progress. Miss Y wanted her in a specialist setting but until then, needed temporary alternative provision as she only received about 6 hours of school a week. More funding was needed to meet the agreed plan of alternative provision the school could give both in and out of the setting along with external providers.
37. She also submitted a GP letter confirming mainstream school was causing Z anxiety, affecting her mental health. She continued to try new strategies such as alternative provision within the school while the annual review process was ongoing. This included cooking, garden time, and pool time for example. These did not work. She needed alternative provision outside of school.
38. At the start of August, the Council told Miss Y a placement panel decided Z would remain in mainstream schooling, not the school Miss Y preferred.
39. In September, Z stopped attending school. The same month, Miss Y sent the Council a complaint about its failure to provide a draft EHC plan and alternative education provision following the annual review. She noted Z was on a reduced timetable of eight hours a week but, could not access it despite having an EHC plan. She complained Z should have received alternative provision after it was clear she had been away from school for 15 or more days in January.
40. Miss Y argued since January, no alternative provision was in place. She also pointed out the Council’s own policy for reduced timetables said she should have a minimum of 21 hours in school a week. In addition, government guidance said reduced or part time timetables should only be temporary with a proposed end date.
41. She also complained the Council failed to send her its decision notice and copy of the EHC plan with proposed amendments within four weeks of the meeting. This should have been sent by 19 June. It was sent on 12 September.
42. The final EHC plan was supposed to have been issued within eight weeks of the date of sending the proposed amendments which would have been by 14 August. It was sent on 9 October. The same month, she appealed to the Tribunal.
43. In October, the Council replied to her stage 1 complaint. It accepted there were lengthy delays meeting the statutory timeframes because of significant staffing challenges and capacity within its Statutory Assessment Team. Many of her emails were not responded to and those that were missed the five working day timeframe. It also accepted she was told the draft EHC plan would be sent to her by 5 September but, the officer failed to make the request to the relevant team and so this was not done.
44. The Council explained Z was on the roll of the school where she would remain. As it provided agreed funding to the school, along with a financial top up payment, it did not source or fund alternative provision as this was the responsibility of the school, should it consider it necessary. It noted Z was on a reduced timetable but, due to her avoiding school, access to the alternative provision set up by the school was inconsistent. It also noted she had a 1:1 learning coach when in school and provision included education activities as well as access to a forest school the following month. The school was told to contact the Council if it felt further funding was needed. It accepted serious failures meeting statutory duties and timeframes.
45. Miss Y made her stage 2 complaint. The stage 2 investigation report noted it was the school’s responsibility for putting in place suitable alternative education provision to meet Z’s needs because of the funding it received. The officer met the headteacher about the bespoke package put in place for Z. The Council did not uphold her complaint because of the package and the alternative provision made by the school. It advised her about how to apply for a personal budget.
46. In November, there was an emergency review which discussed alternative provision. Miss Y said this took place the month before and explained it was held because the Council continued to name the school, but the school said it could not meet Z’s needs. The Council suggested it to allow Z to start in Year 1 and to gather more evidence so it could go back to panel again
47. It was agreed Z would attend for four hours a week at a facility run by the forest school. The Council said this, along with the meeting with the headteacher under the complaint process, as well as the school sending provision maps, showed it objectively considered whether the education arranged by the school was suitable.
48. From November, Miss Y complained Z only received four hours a week at the forest school, which she said she had arranged herself. Miss Y asked for her complaint to go to stage 3.
49. At stage 3, the Council accepted:

• it failed to give a clear explanation or timeframe around the statutory process where a child does not, or is unable, to engage with a school-based package of alternative provision;
• it allowed the situation to continue for an extended period despite Miss Y raising concerns about Z suffering EBSA, the reasons for it, and her making recommendations and suggestions; and
• it did not react adequately with the necessary sense of urgency. This resulted in Z missing a significant amount of learning.

50. The Council apologised for these failings and upheld her complaint. It was now looking at presenting evidence to the placement panel about placing Z in a specialist school and properly looking at her situation.

2025:

51. In February, the Council issued a final amended EHC plan. This named her current school which Miss Y did not consider could meet her needs. Provision included; help with communication; interactive activities and therapy sessions; encouragement and support for her to interact with those around her, including peers; weekly 45 minute sessions with Speech and Language therapy (SALT) which amounted to almost 49 hours across the academic year; SALT outcomes implemented during the day in 10 minute bursts; termly input from SALT reviewed annually; SALT input once a term minimum; fortnightly direct occupational therapy input with each session being 45 minutes long; a feeding programme to help with her anxiety of 1 hour a week for 12 weeks.
52. In May, she was told there was an offer of 10 hours commissioned provision a week. This was for a tutor to come to the house, but she said this would cause problems as she and her husband both work. They adjusted their working hours to ensure this happened.
53. Provision increased to six hours a week from April 2025.

My findings

Complaint a): provision while on reduced timetable and Complaint b): failing to provide alternative provision

54. I found fault on these complaints for the following reasons:
1. Section 19 provision is intended to cover circumstances where it is not reasonably possible for a child to take advantage of existing suitable schooling.
2. The evidence showed Miss Y agreed to a reduced timetable over months in the hope this would increase so Z could return to school full-time. Evidence showed the reduced timetable, which was never supposed to be a permanent arrangement, became one as Z remained, and remains, on a reduced timetable since starting school in September 2023.
3. By May 2024, it was clear both from evidence from Miss Y and the school that the reduced timetable approach was not working. Miss Y was clear the school was unable to meet Z’s needs, which said more needed to be done so Z was in the right setting. Miss Y had also sent medical evidence from the GP about Z’s anxiety about going to school.
4. I am not satisfied the Council showed it monitored and reviewed Z’s position closely enough since she started school. It allowed the situation to drift. From January 2024, for example, Z’s weekly hours at school began to reduce each month, not increase. This showed the strategy of reducing her timetable was not working.
5. The monthly decline in attendance, her continuing reduced timetable, along with the evidence from Miss Y and the school, ought to have triggered its consideration of section 19 provision. This was because this evidence should have alerted it to a deteriorating situation and prompted it to consider whether it was appropriate to make section 19 provision. It failed to do so.
6. I have seen nothing to show the Council considered whether the education arranged by the school, at the school, was suitable in the circumstances. As Miss Y said Z could not attend school because of her anxiety, the Council should have considered whether she was unable to attend any school, not just the one she was on the roll for.
7. Nor was there evidence of the Council considering whether Z was ‘otherwise’ unable to attend school. There was nothing to show it turned its mind to whether the education offered was ‘reasonably available and accessible’ to Z. This was important as under the courts’ acid test, it needed to consider whether the educational provision offered was available and accessible to her.
8. The Council also failed to show whether it considered if it could make the provision set out in section F of her EHC plan away from the school.
9. I have seen nothing showing whether the Council explored if the provision set out in her EHC plan was being provided when alerted to the problem of attendance and part-time timetables.
10. I also took account of:

• The Council’s decision to uphold her complaint at stage 3 about it failing to make alternative provision. It accepted she was given no clear explanation or timeframe about the statutory process where a child does not, or could not, engage with a school-based package of alternative education provision. The Council also accepted: it allowed the situation to continue even though Mrs Y raised concerns about EBSA; it failed to act with the necessary sense of urgency which caused Z to miss a significant amount of learning.
• The school said Mrs Y’s ideas about alternative provision were limited because of funding. Her current EHC plan funding was used for the learning coach. I noted if Z could not get into the school, the value of the learning coach was limited.
• The school brought the problem with part-time timetables to the Council’s attention. It pointed out Z struggled to get into school.
11. I am satisfied the identified failures caused Z avoidable injustice. She lost the opportunity to have the Council consider alternative provision sooner than it did. She also has the uncertainty of not knowing whether the Council would have introduced alternative education sooner. I am satisfied, therefore, Z lost education provision as a result. They also caused distress to Miss Y in the form of frustration, for example.

Complaint c): failing to carry out annual review within the required statutory timescale

55. I found fault on this complaint for the following reasons:
1. The Council accepted there were delays with the annual review process. The meeting decided to amend the EHC plan. This meant it was legally required to send her a copy of the EHC plan with proposed amendments within four weeks of the meeting (19 June). This was not sent to her until 12 September, about 12 weeks later.
2. The final EHC plan needed to be issued within 12 weeks of the review meeting (14 August). This was sent on 9 October, about 8 weeks late.
3. The Council accepted the delay was due to staffing challenges and capacity with the team with an increase in backlogs of work resulting in lengthy delays.
4. The Council also accepted there was a failure to respond to some of her correspondence when she chased it about delays and progress. When correspondence was responded to, it was not within its timescales.
5. There was an emergency review held on 21 November. Again, the Council had until 19 December to send her a copy of the EHC plan with the proposed amendments. This was not sent to her until 29 January 2025, almost six weeks later. The final EHC plan needed to be issued within 12 weeks of the review meeting, which would have been 13 February. It was issued on 28 February, two weeks later.
6. The Council also accepted it delayed dealing with her complaint and further lack of communication following a transfer of the case between officers in December 2024. It again apologised for these failings.
7. I am satisfied these failings caused Miss Y an injustice which caused her distress. There were lost opportunities to have the final EHC plans issued which delayed her right to appeal, which she went on to use. They also caused her frustration and some inconvenience. Significantly, Z lost education provision.

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Action

56. I considered our guidance on remedies.
57. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send a written apology to Miss Y for the injustice caused by its failure to: consider whether its section 19 duty applied sooner than it did; monitor and review progress with part-time timetables; issue the final EHC plan promptly after the annual review and emergency review; communicate with her promptly.
2. Pay £3,000 (£2,000 a term x 1.5 terms: May-November 2024, when the forest school started) to Miss Y for the distress the identified fault caused. The payment takes account of what Z should have received in terms of education/provision, what she actually received, as well as the fact she could not cope with attending school full-time. It also took account of the fact it was the start of Reception, so was an important stage in her school life.
3. Remind relevant officers of the need to consider whether the section 19 duty is triggered for children who are not attending school full time, struggle with attendance, and have a final EHC plan issued, and to keep this under review.
4. Ensure it has processes in place to monitor and review the progress of children on part-time timetables who have final EHC plans.
5. Review why the delays with the annual review and emergency review process happened and act to ensure these failures cannot be repeated on future cases.
6. Produce an action plan showing how it will meet statutory timescales in the future for annual and emergency reviews.
7. Remind relevant officers of the need to communicate with parents who have concerns for their children who are experiencing problems attending school.
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. I found fault causing injustice on Miss Y’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman