Summary: Miss X complained about the lack of alternative provision provided to her child who has been off school for two years. Miss X said this caused unnecessary distress and impacted her child’s education. We found the Council at fault which caused Miss X and her child injustice. The Council has agreed to make a payment and apologise to Miss X.

The complaint

1. Miss X complains the Council has failed to provide her child, Z, with alternative provision during the time they have been off school over the past two years. She says Z is entitled to a tutor and mentoring through their Education Health and Care (EHC) Plan. She also says the communication from the Council is and continues to be poor.
2. Miss X says that this has impacted her by causing unnecessary distress and has meant that she has had to take time off work. It has also impacted Z’s education.

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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. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. 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

8. Miss X complained to us in January 2025. Therefore, issues which occurred prior to January 2024 would be considered late. As I have said above, we cannot investigate late complaints unless there are good reasons for us to do so.
9. However, the Council says that it has not provided consistent provision to Z since March 2023, and it has offered to remedy this in its response to the complaint. I have therefore considered the failure to provide provision from March 2023 through to the summer of 2025.
10. If Miss X remains unhappy with the service provided by the Council regarding Z’s education post summer 2025, then this would be the basis of a new complaint at that point.
11. In respect to the communication aspect of the complaint, I have only investigated this from January 2024 onwards as this is 12 months before Miss X brought her complaint to us.

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How I considered this complaint

12. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

14. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
15. 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)  
16. 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) 
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. [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.
18. 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))
19. 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)

What happened

20. In May 2023, Z was excluded from school. The Council confirms it provided no provision until 5 June 2023. Following this, it provided 20 hours a week (excluding the summer holidays) until October 2023.
21. The Council reports following this it provided inconsistent provision to Z up to March 2024, when no provision was again provided up to July 2024.
22. The Council issued the latest EHC plan for Z in March 2024. This set out within section F, the extra full-time support that Z needed. However, this was written as if Z was still attending the school he had been excluded from.
23. Inconsistent provision was again provided to Z after the summer holidays of 2024 including no provision in October 2024. Following this, 10 hours of provision was provided to Z a week on average up to the summer of 2025.
24. In September 2024, Miss X made a complaint, and the Council provided a stage one response in October 2024. Miss X requested an escalation to the complaint in November 2024 and after a delay due to staff absence, the Council issued its stage 2 response in November 2024.
25. The Council say it has not reviewed the EHC plan since March 2024 but has named a new school, and a placement is anticipated for the new school year in September 2025.

Alternative provision

26. We expect councils to follow the statutory timescales set out in the law. We are likely to find fault where there are significant breaches in those timescales. Under section 19 of the Education Act 1996, the Council must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion. This provision 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.
27. The evidence shows since exclusion in May 2023 the provision provided by the Council to Z has been limited, inconsistent and at its peak provided for 20 hours a week. In addition, the Council has also provided no provision on multiple occasions. This is fault and has caused Miss X and Z unnecessary and avoidable uncertainty and distress.
28. In reviewing how to remedy this matter, I have considered that Z is not in a key year(s) of education (e.g. SATS or GCSEs). However, Z has an EHC plan in place and the inconsistent provision provided would have impacted Z greatly, especially as this occurred over a long period. I have therefore considered this impact in the award I have recommended.

Communication

29. Both Miss X and the Council have confirmed the communication provided to Miss X has been inconsistent. I consider this to be fault which has impacted Miss X. Both in terms of uncertainty in not knowing what was happening and in the distress which this in turn caused.
30. The Council say that in June 2025 it appointed a new alternative provision officer to help improve its communication. It is also providing additional training to SEND managers and co-ordinators to help improve performance and retention which has caused issues with its communication in the past.
31. In consideration of these issues, the Council has offered to remedy the injustice experienced by Miss X. I have reviewed this in line with our guidance on remedies, and consider the amount offered by the Council is fair and reasonable.
32. In the past year, we have made several recommendations against the Council to improve its service on SEND and alternative provision through previous cases we have considered. I have decided not to recommend extra improvements within this decision, as the Council should be allowed an opportunity to improve its service and it has committed to doing so.

EHC plan

33. The Council is required to carry out a review of the EHC plan at least once every 12 months, even if that decision is to maintain the existing plan. Any decision the Council makes about the review, is appealable to the First-tier Tribunal (Special Educational Needs and Disability) – Send Tribunal.
34. We can consider the delay in completing the review of the EHC plan. The failure to do so, has again impacted Miss X by causing her further uncertainty about the school placement to be named on the plan and delaying any appeal rights. Along with distress by believing the Council was not treating Z fairly or reviewing his changing needs.
35. The Council has offered an award in consideration of this, and I again consider this to be fair and reasonable and in line with our guidance on remedies.

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Action

36. Within four weeks of my final decision the Council has agreed to:
1. Provide a written apology to Miss X and Z for the unnecessary and avoidable distress caused by the failure to provide full and consistent alternative provision and communication.
2. Pay £600 for the delay in processing Z’s annual review of their EHC plan.
3. Pay £500 for the distress caused to Miss X due to the lack of communication provided.
4. Pay £10,500 for the injustice caused by the failure to secure consistent full-time provision since March 2023 – calculated at £1,500 for every term missed.
37. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council has agreed to apologise and make payment to Miss X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman