Summary: Mrs X complained the Council did not provide the provision set out in her child’s Education Health and Care Plan. She also complained the Council did not provide alternative education when her child’s school attendance reduced. Mrs X says this impacted her child’s education and wellbeing. We find no fault with the Council’s decision-making regarding alternative education. We find fault with the Council’s delay providing provision in the Plan which caused injustice. The Council will apologise to Mrs X and Y to remedy the injustice.

The complaint

1. Mrs X complains about the Council’s handling of her child, Y’s, education. Specifically, she complains the Council:

1. Did not provide the provision set out in Y’s Education Health and Care Plan; and
2. Did not provide alternative provision.

2. Mrs X says this has impacted Y’s education. She also says this has impacted Y’s physical health and emotional wellbeing.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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(1), as amended)
6. 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.
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)

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What I have and have not investigated

9. Mrs X complains about matters which have happened since she received her final complaints response from the Council in April 2025. As I have explained above, we cannot normally investigate matters unless we are satisfied the Council has had the opportunity to investigate and reply. I consider it is reasonable for Mrs X to first make her complaint to the Council. For this reason, I will end the investigation in April 2025.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
12. 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 found

What should have happened

Provision (part a of the complaint)

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
14. 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)  
15. 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. 

Alternative Provision (part b of the complaint)

16. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
17. Statutory guidance says a child’s health needs should be managed by the home school so they can continue to be educated there with support, and without the need for intervention by the local authority. However, as soon as it is clear that the home school can no longer support the child’s needs and provide suitable education, the school should speak to the local authority about putting alternative education in place.
18. It also says where it is clear a child will be away from school for 15 days or more, either consecutively, or cumulatively, for health reasons, councils should liaise with medical professionals to ensure there is minimal delay in arranging appropriate provision where required.

What happened

19. Y has several health conditions with intermittent symptoms.
20. In mid-December 2024, the Council issued a finalised EHC Plan. This Plan stated the named school would support Y’s needs by providing extra provision, skills sessions and arranging one-to-one support for Y in a specific subject lesson. Y had the specific lesson five days per week. The school provided one-to-one support for Y in the specific lesson three days per week.
21. The school notified the Council that Y had cumulatively missed over 15 days of school since term began.
22. In mid-January, Mrs X contacted the Council and requested the Council consider its section 19 duty because Y could not access full time education at school due to symptoms of their health conditions. Mrs X told the Council it already had all the medical evidence because it had considered it during the EHC Plan process.
23. The Council suggested the school offered livestream lessons for Y to attend at home during absences. The school and Mrs X agreed when Y experiences some symptoms, they could not meaningfully engage with a livestream lesson and therefore it was not a suitable option.
24. In late January, Mrs X told the Council tiredness made Y’s symptoms worse. She said livestream lessons every morning may help Y manage their tiredness and they could attend school in the afternoon. She told the Council that Y did not want to drop any subjects and still wanted to attend school. The Council asked Mrs X to provide more medical information and to suggest alternative provision options she would consider suitable.
25. In early February, the school told Mrs X that it was unable to offer the daily one-to-one support in the subject lesson as outlined in the Plan. Mrs X sent this information to the Council. The same day, the Council contacted the school. The school told the Council it would fill the two-day gap in provision to ensure Y had access to one-to-one support in their lesson five days per week.
26. The Council met with the school to discuss Mrs X’s request for alternative provision for Y. The school told the Council it was supporting Y to catch up on education by supporting them in classes and additionally during free periods and providing copies of presentations for missed classes. The school told the Council it was arranging the additional one-to-one support for Y in the subject lesson to meet the provision set out in their Plan. The Council updated Mrs X and requested any further medical information and told her it would consider its section 19 duty again.
27. In mid-February, Mrs X provided the Council with another medical report which described Y’s health conditions and symptoms.
28. In late February, the Council held a multi-agency meeting attended by professionals from Y’s school and a health professional. They reviewed Y’s attendance and medical evidence including the new medical report provided by Mrs X. The school agreed to explore any barriers with Y attending school and speak to them about their opinion on their education. The Council decided Y’s reasons for sporadic nonattendance did not trigger its section 19 duty.

Analysis

EHC Plan provision (part a of the complaint)

29. It is the Council’s responsibility to ensure the provision set out in an EHC Plan is available for the child. The SEND Code of Practice says the provision should be in place from the date the final EHC Plan is issued. Therefore, Y should have been provided one-to-one support in the specific lesson from mid-December. Y’s school timetable included the specific lesson five days per week. Y was provided with one-to-one support in the lesson three days per week, which is not the provision set out in their Plan. To its credit, the Council addressed the missing provision with the school the same day it was made aware. The school told the Council it would arrange the additional two days one-to-one support to fulfil the provision set out in Y’s Plan. The duty to provide the provision in an EHC Plan is non-delegable and so the Council is at fault for the missing provision. I cannot calculate whether this fault caused Y to miss provision they would have otherwise accessed, even on a balance of probabilities. This is because their school attendance was sporadic and on average Y attended school three days per week and Mrs X says Y’s attendance further reduced from February 2025.
30. The Council satisfied itself the school provided Y with missed education during available time in Y’s school day when they attended school. Mrs X complains the school did not provide catch up skills sessions Y also missed out on due to nonattendance. I consider the Council demonstrated appropriate oversight and satisfied itself this provision was available to Y at the named school. I have addressed the Council’s consideration of Y’s attendance in the section below.

Alternative provision (part b of the complaint)

31. Statutory guidance says the Council should consider its Section 19 duty for children who have not attended school for 15 days because of their health needs. Once it was notified about Y’s school attendance by the school, the Council considered its duty and so acted in accordance with statutory guidance.
32. The Section 19 duty applies in cases where a child is unable to attend school. In this case, Y was attending school, with a degree of absence. The Council was satisfied Y was receiving support and interventions to improve their attendance. The Council considered all relevant information including information provided by Mrs X and medical professionals working with Y. It decided the evidence provided did not trigger its Section 19 duty. I consider the Council made its decision in line with statutory guidance and considered all relevant information. I find no fault with the Council’s decision-making and so I cannot question the outcome.

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Action

33. Within four weeks of our final decision, the Council has agreed to provide a written apology to Mrs X and Y for any injustice caused to Y by its delay providing the full one-to-one support detailed in the EHC Plan.
34. 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.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman