Summary: The Council failed to consult sufficient school placements for Ms X’s child, Y, when they stopped attending school. The Council also failed to properly consider whether the alternative provision it offered Y was reasonably accessible to them and failed to ensure Y received key therapies in their Education, Health and Care Plan. The Council’s faults have caused Y and Ms X uncertainty and caused Y to avoidably miss out on special educational provision for eleven months. The Council has paid Ms X £3,250 to recognise the injustice caused by these faults. We have also recommended that the Council make service improvements.

The complaint

1. Ms X complained the Council:
1. failed to consult sufficient alternative education placements for her child, Y, despite saying it would at a panel in April 2024;
2. failed to ensure Y received the support in Section F of their EHC Plan – including speech and language therapy and occupational therapy; and
3. failed to ensure Y received suitable alternative provision when they stopped attending school.
2. Ms X said because of the Council’s faults, she has been caused distress and frustration and Y has missed out on education and support that they needed for a prolonged period. Ms X said the Council has continued not to put this provision in place which has caused the family further distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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)
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

Complaint timeframe

9. Ms X has complained of issues dating back to 2023. However any events before February 2024 have not been brought to us within twelve months of Ms X becoming aware of them. As there was no good reason for this, complaints about these matters are now late. My investigation begins in February 2024 and ends with the date of the Council’s final complaint response on 5 December 2024. Earlier events are only referred to for context.

Later events in 2025

10. Ms X has also complained that the Council has continued not to arrange provision for Y after my investigation period ends in December 2024 and says this fault has continued into 2025. Generally the Ombudsman would not investigate matters which have not been responded to first through a Council’s complaints process, for the reasons set out in the role and powers section of this document.
11. However in this case, the Council has told us it already accepts fault for this later period from January to July 2025 and has offered to pay Ms X £4,650 to recognise the injustice this has caused to her and Y. It is open to Ms X to accept this offer from the Council.
12. I have therefore decided not to investigate this later period in 2025, as due to the remedy already offered, there is no more worthwhile outcome that could be achieved by our investigation.

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How I considered this complaint

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans

15. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
16. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school.
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Transitions between phases of education

17. An EHC Plan must be reviewed and amended by 15 February in the year the child moves into another phase of education. This must be done for children moving between early years providers to school, infant year to junior school and primary school to secondary school. (SEND Code of Practice, 9.179)

Arranging provision

18. Councils are responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
19. 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)  
20. 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 demonstrate 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. 

SEND Tribunal

21. 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.
22. We cannot direct changes to the sections about education or name a different educational setting. Only the SEND Tribunal can do that.

EOTAS

23. Education Otherwise Than at School (EOTAS) is a type of schooling where provision is delivered outside of a formal setting.

Personal budget

24. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Alternative provision

25. 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.
26. 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)
27. 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)

What happened

Background

28. Ms X’s child, Y, has special educational needs and an EHC Plan which sets out the support they need to meet them.
29. Y attended a specialist school, School A, until that school could no longer meet Y’s needs. Y stopped attending School A in 2023 and received no education during that time, only weekly meetups with a member of school staff in the community.
30. An annual review was held in November 2023. At this annual review, School A and the Council agreed Y needed to move to a different school. School A said it would keep Y on roll while the transition was underway to a different setting.

Key events

31. By the time my investigation begins, in February 2024, Y was not receiving the provision and support from their last in force EHC Plan. This included:
• full-time education at a specialist school;
• occupational therapy;
• speech and language therapy; and
• additional classroom-based support.
32. The Council still had not found Y an alternative school placement. It consulted one school in 2023 and one in early 2024 and neither could meet Y’s needs.
33. The Council issued an EHC Plan for Y in February 2024. It named ‘specialist’ in Section I to show the Council was seeking a specialist school placement for Y. Ms X agreed Y needed a specialist school placement and so did not appeal the EHC Plan to the SEND Tribunal.
34. School A took Y off its school roll in late February 2024 and Y still did not have an alternative school placement.
35. Between late February and late March, the Council asked Ms X to consider some part-time tutoring for Y. However Ms X said the part-time tutoring the Council had offered did not meet the requirements of the Plan and Y would not be able to manage it.
36. Ms X told the Council in late March 24 that she would instead write up a proposal for EOTAS Y could access while the Council sought a specialist school place for Y. Ms X sent the proposal to the Council in mid-April 2024 but the Council declined the request.
37. The Council’s panel said while it was having trouble finding a suitable school place for Y, it still wanted to investigate appropriate settings for them, rather than begin an EOTAS package. The panel said in the meantime, it would fund the therapies Ms X had requested, including speech and language therapy and occupational therapy, through a personal budget. It also said its offer of part-time tuition could meet Y’s educational needs in the interim.
38. The Council did not set up the personal budget or arrange these therapies. Ms X continued to decline the part-time tutoring as she said it was not suitable. The Council stopped consulting schools for Y at this time.
39. When the Council panel made its decision that the part-time tuition it offered would meet Y’s needs, Ms X was no longer in time to appeal the most recent EHC Plan to the SEND Tribunal.
40. The Council arranged to meet with Ms X to discuss options for Y’s provision in late May but the SEND officer missed the meeting. A few days later the SEND officer asked Ms X to provide costings for the providers for the therapies.
41. Ms X provided the costings on 19 June 2024 to provide the costings but said she did not know why she had been asked to provide this information again when she already provided the costings in her EOTAS proposal in April.
42. No education or Section F provision was in place for Y by September 2024 when they were due to start secondary school.
43. The Council contacted Ms X on 17 October 2024 to say it had arranged an online learning package for Y which would begin the following week.
44. Ms X complained to the Council the next day. She said Y had received no education or section F provision since School A said it could no longer meet their needs in November 2023. Ms X repeated that the part-time learning it had commissioned was not suitable for Y. Ms X also asked what progress the Council had made with seeking alternative specialist schools for Y.
45. The Council responded and said Y was on roll at School A until February 2024, so from November 2023 until then, the school had been responsible for Y’s education. The Council upheld that Y had not received the provision in their EHC Plan since they left their previous school but said this was in part due to Ms X declining the online or face to face tuition the Council offered from February 2024 onwards.
46. The Council said regarding consulting for alternative specialist school placements, it had consulted two schools for Y between January and March 2024 and both said they could not meet Y’s needs. The Council said it then stopped consulting schools because Ms X had asked for an EOTAS package.
47. Ms X was unhappy with the Council’s complaint response and asked for this to be investigated at stage two of the complaints procedure. The Council responded in early December 2024. It said:
• It agreed Y had not been provided with full-time equivalent education that was in line with the requirements of their EHC Plan;
• However it said the online or face to face tuition it offered from February 2024 onwards would have been suitable education provision in the interim; and
• It agreed Y had not received key section F provision including the therapies it said it would fund.
48. The Council apologised and offered to pay Ms X £3,250 as a financial remedy for the provision Y missed in 2024. It came to this figure using the Ombudsman’s Guidance on Remedies. Ms X accepted the financial remedy.

My findings

Complaint 1a – failure to consult schools

49. The Council failed to maintain proper oversight of its plan for Y’s education in 2024. At times the Council was under the impression it was finding Y a school place rather than arranging an EOTAS package. At other times it understood it did not need to find Y a school place anymore and was instead funding provision through a personal budget. This confusion led to the Council failing to make sufficient efforts to do either and this was fault.
50. This fault has caused frustration and uncertainty to Y and Ms X about whether a school place may have been available to Y sooner. Y was due to transition to secondary school in 2024 and so this uncertainty is a significant injustice to them.

Complaint 1b – failure to arrange Section F provision

51. The Council failed to arrange Y’s Section F provision, including occupational therapy and speech and language therapy between February and December 2024. The Council said while Y was on roll at School A for the month of February it was their responsibility. However this duty was non-delegable and the Council remained responsible. The Council was at fault. Because of this fault, Y missed out on key special needs provision that was important for Y’s education and development for eleven term-time months.

Complaint 1c – failure to arrange suitable alternative provision

52. The Council attempted to arrange part-time tuition for Y from late February 2024. However Ms X declined this as she said Y could not manage with the education in that format. The Council continued offering only this type of education provision between late February 2024 and December 2024 when my investigation ends.
53. The Council considered whether this alternative provision was available to Y and it was. However there is no record to show how the Council considered whether this education was accessible to Y, which is the test as set out in R (on the application of DS) v Wolverhampton City Council 2017. The Council failed to consider and record its thinking around how this provision was accessible for Y. This was further fault by the Council and has caused Y further frustration and uncertainty.

Financial remedies offered

54. The Council has accepted fault and paid Ms X a financial remedy of £3,250. This remedy is in line with our Guidance on Remedies and reflects Y’s missed provision in 2024, as well as the uncertainty and frustration caused to Ms X and Y. We have also recommended the Council take action to improve its services.

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Action

55. Within three months of the date of the final decision, the Council has agreed to:
1. Share this decision with its education team and highlight it as a learning case;
2. Send the Ombudsman an action plan to demonstrate how the Council intends to prevent recurrence of these faults affecting other children and young people in future.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. I find fault causing injustice and the Council has agreed to take action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman