Summary: Mrs X complained the Council was involved in a decision by the school attended by her child Y to stop offering specific educational provision, did not provide Y with suitable alternative education when she could not attend school, failed to meet timescales in an education, health and care needs assessment process and had poor standards of communication. We find the Council at fault for the way it decided if it should offer alternative education, and for missing statutory timescales in the assessment process. This caused injustice to Mrs X and Y of distress, uncertainty and frustration. The Council agreed to apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Mrs X complains about the Council’s actions when her child Y became unable to attend school full time from 2023, and that it failed to meet the statutory timescales when she requested an education, health and care needs assessment in 2024. In particular she complains the Council:
1. Was involved in a decision by her daughter’s school to stop offering a reduced timetable and other provision, in January 2024.
2. Failed to provide suitable alternative provision of education for her daughter.
3. Failed to meet the statutory timescales when it issued an Education, Health and Care Plan.
4. Had poor standards of communication and provided insufficient information during the EHC process.
2. Mrs X says the Council’s failings resulted in a loss of education for Y and caused her and the family significant stress, anxiety and exhaustion. She says it also caused a financial loss because she had to fund educational provision for her daughter when the Council failed to.

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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. 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)
5. 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.
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 Tribunal in this decision statement.
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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)
10. 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

11. I have investigated matters from January 2024, when Mrs X believes the Council was involved in a decision taken by Y’s school, until January 2025 when the Council issued Y’s final amended EHC Plan.
12. The matters between January and March 2024 happened more than 12 months before Mrs X complained to us and are therefore late. Mrs X raised concerns with Y’s school and said she recalls being told the Council was aware of her concerns from January 2024. This is evidence she believed action was being taken on the complaint by the Council and had not allowed the matter to rest for more than a few months. I have decided this is a good reason to exercise my discretion to investigate the complaint from that date.
13. I have not investigated matters before January 2024 because I have seen no good reason why Mrs X did not complain about them sooner, and because they are about what happened in a school when it was not acting on behalf of the Council.
14. The Council issued Y’s final Education, Health and Care (EHC) Plan in November 2024. Mrs X had a right of appeal to the Tribunal from that date and we cannot usually investigate as explained in paragraph 7. In this case, the Council did not name the educational setting in the final EHC Plan, it stated “specialist setting”. The Council then secured a place for Y at a named setting, and issued a final amended EHC Plan in January 2025. I have decided it would be unreasonable for Mrs X to have appealed from November because she had an expectation a place at a specialist setting would be found. I have therefore decided to exercise my discretion to investigate until the final amended EHC Plan was issued in January 2025. I have not investigated after that point because I have decided it is reasonable to have expected Mrs X to appeal from then.

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How I considered this complaint

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

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What I found

Law and guidance

Alternative provision of education (known as the section 19 duty) where a child is unable to attend school due to health needs.

17. Councils must “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(1))
18. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
19. 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))
20. 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)
21. 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’)

Education, Health and Care Plans

22. 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. 
23. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.
   

What happened

24. This is a summary of key events. It is not a detailed chronology of everything that happened. I have provided more details about some of the events in the analysis section.
25. Y attended a mainstream school. In July 2023, Y stopped receiving full time education at her school. Mrs X said anxiety and special educational needs meant Y found it very difficult to attend school.
26. Mrs X raised concerns with the school. She also raised concerns with a Councillor in April 2024. Y subsequently stopped attending school at all.
27. In early April Mrs X asked the Council to carry out an EHC needs assessment for Y.
28. A few days later on 12 April Mrs X contacted the Council and requested it arrange alternative educational provision in line with its duty under Section 19. She said Y could not attend school at all because of anxiety. She said a reduced level of education would be in Y’s best interests.
29. The Council spoke to Mrs X about her request. They discussed options for Y to receive education from the Council’s Alternative Tuition Service (ATS). The Council explained it required medical evidence and for Y’s school to refer her to ATS. Mrs X told the Council she had tried to get medical evidence but Y could not attend GP appointments due to her anxiety.
30. Mrs X also told the Council she had purchased an online education platform for Y which she started around the same time.
31. In mid-April the Council wrote to Mrs X to confirm it had received her request to carry out an EHC needs assessment. It provided some information about the next steps.
32. The Council emailed Mrs X at the beginning of May and said it would contact Y’s school and ask it to make a referral for Y to access the Council’s ATS.
33. In mid-May, the Council notified Mrs X it had decided it would carry out an EHC needs assessment.
34. Mrs X and the Council spoke several times in June about the EHC needs assessment process and her concerns about Y not receiving education. The Council recorded that Mrs X wanted Y to remain with the online platform she had purchased but was also worried she needed social interaction with pupils her own age.
35. On 16 July Y’s school referred Y to the Council’s ATS. The Council started arrangements for a teacher to provide online tuition for Y from the start of the new term in September.
36. The Council met with Mrs X at the beginning of August about the EHC needs assessment.
37. At the beginning of September the ATS teacher emailed Mrs X. They asked to arrange a time for a telephone call to learn some information about Y and arrange lesson times.
38. Mrs X replied a couple of days later and said one-to-one teaching would be too intimidating for Y.
39. Mrs X also spoke to the Council shortly after emailing the teacher. The Council’s record of the call states Mrs X said Y wouldn’t be able to cope with the teacher involvement. They also discussed an online platform provided by the Council’s ATS where a computer sets and marks work. I shall call this platform Z. Mrs X said she was unsure if Y could use platform Z every day because she was already using the online learning platform she had purchased. The Council said Y may be able to use platform Z to top up what she already had access to. It said it would send the login details to Mrs X.
40. The Council then decided ATS would not offer any additional education. The reasons it recorded for its decision were that Mrs X had said: Y could not receive online tuition, she was happy with the online platform she had purchased, and she was unsure if Y would have the time or be physically able to also use platform Z.
41. The Council informed Y’s school of its decision by email. It said it would not formally remove the offer for a week to give the school an opportunity to speak to Y’s family if it wished.
42. Towards the end of September Mrs X emailed the Council. She reminded the Council it had said she could use platform Z, but had not provided any details to set it up. The Council replied that it had closed her referral to ATS because she had purchased the online platform and would not need anything else from the Council. It explained that if any provision from ATS was required, Mrs X would have to ask the school for another referral for Y.
43. The school contacted the Council a few days later at the end of September. The school said it had a meeting with Y’s parents the same day. It said it was aware the Council had removed the ATS offer, but was not sure why. The Council referred the school to the email it had sent earlier in September. It explained Mrs X had said she did not feel Y would use the online package provided by the Council and there was no need for its involvement.
44. Mrs X and the Council spoke several times in October. They spoke about the EHC needs assessment process and possible educational settings that Y might attend. Mrs X also raised further concerns about the educational provision. The Council recorded that Mrs X confirmed she was still paying for the online platform and that Y was engaging well with that provision.
45. In mid-October the Council issued Y’s draft EHC Plan. Mrs X expressed her preference for a specific named specialist setting for Y to attend. The Council consulted several settings including Mrs X’s preference.
46. In November the Council updated Mrs X on the consultations with the educational settings. It recommended Mrs X arrange a visit to her preferred setting.
47. At the end of November the Council decided to issue Y’s final EHC Plan as a “type only” setting. It stated Y would attend a specialist setting but did not name a specific setting. The Council advised Mrs X that she had the right of appeal to the Tribunal.
48. The Council communicated with Mrs X and her preferred setting in December and into January 2025. They discussed the availability of a place for Y and other arrangements. It issued a final amended EHC Plan in late January that named Mrs X’s preferred setting. It also explained Mrs X had the right to appeal to the Tribunal.
49. Also in January Mrs X formally complained to the Council. She complained Y had not been in full time education since July 2023, and the Council had not provided alternative provision.
50. The Council responded to Mrs X’s complaint in February. It said it had offered alternative provision via ATS. It said Mrs X had declined the online teacher because of Y’s anxiety. It said Mrs X had said Y might not be able to complete platform Z as well as the online platform she had purchased. The Council said it had made its best endeavours to secure education for Y and therefore would not offer compensation for the online platform she had purchased.
51. Y started attending the new educational setting on a part time basis.
52. Mrs X asked the Council to escalate her complaint to stage two of its complaint process. The Council considered her request and decided its stage one response was its final position.

Analysis

53. I address each part of Mrs X’s complaint in turn below.

a) Complaint the Council was involved in a decision for Y’s school to stop offering a reduced timetable and other provision in January 2024.

54. The Council employs Education Welfare Officers (EWOs) who work on matters regarding school attendance. Every school has an allocated EWO.
55. Mrs X said she recalled being told that Y’s school’s EWO had been involved in a decision taken by the school in January 2024 to stop offering a reduced timetable and other provision. Mrs X recalled the school then asked her to source further medical information to override the Council’s position. She said she did not have any emails to corroborate her recollection of events.
56. The Council said it has no record of Y’s school making the EWO or any other officer aware of Y’s reduced timetable. It said Mrs X’s contact in April 2024 was its first knowledge of concerns about Y’s educational provision. It also said it would not be an EWO’s decision to stop any young person from receiving the type of provision mentioned, nor tell a school not to offer a reduced timetable.
57. I note Mrs X raised concerns with a Councillor. I have seen no evidence those concerns were passed to a Council officer.
58. Based on the evidence I have seen I find, on the balance of probabilities, the Council was not aware of the school’s decisions or Mrs X’s concerns before April 2024. I therefore do not find the Council at fault for this part of Mrs X’s complaint.

b) Complaint the Council failed to provide suitable alternative provision.

59. I have seen no evidence that the Council was aware that Y was not attending school before Mrs X raised concerns in April 2024. I have also seen no evidence it was at fault for not being aware. I therefore do not find the Council at fault before that date.
60. I have considered the Council’s actions from 12 April 2024 when Mrs X first told it Y was not receiving full time education.
61. When the Council became of Y’s absence, I have seen no evidence it made a timely decision as to whether it owed a Section 19 duty to provide alternative provision. It effectively referred the matter back to Mrs X and Y’s school, and delayed making a decision until it received further medical evidence and a referral from the school.
62. I acknowledge the Council’s duty to arrange alternative provision did not automatically apply simply because Mrs X said Y was too unwell to attend school due to anxiety. This is because the Council may have had a rational ground to disregard that opinion, having considered it.
63. However, the statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
64. In this case, I have not seen evidence the Council considered liaising with Y’s GP or other medical professionals. This was fault.
65. Even if medical evidence had not been forthcoming, the Council should have decided whether it owed a Section 19 duty based on all available evidence. I find it should have done this to allow time to arrange alternative provision within 15 days of becoming aware of Y’s absence if it decided it owed a duty. This would have aligned with the guidance that councils should arrange alternative provision within 15 days of absence due to ill health. This means the Council should have decided whether it owed a Section 19 duty, and arranged alternative provision if required, by 3 May 2024. It did not do so. This was fault.
66. The Council decided it owed a Section 19 duty and started to make arrangements for alternative provision, on, or shortly after, 16 July when Y’s school submitted a referral on a specific form. This was about 11 weeks longer than it should have taken and was fault.
67. The Council’s initial offer was online tuition provided by a teacher. It did not record a decision about what type of education would be suitable for Y. It instead arranged for the teacher to initially speak to Mrs X and Y in early September 2024 at the beginning of the school term. The purpose of the contact was to gather more information to inform a decision about a suitable level of provision. I do not find the Council at fault for this approach. This is because I do not find, on the balance of probabilities, it could have gathered sufficient information to make a decision about the type of education that would be suitable for Y by a different approach.
68. Mrs X promptly told the Council that one-to -one teaching would be too intimidating for Y. The Council and Mrs X then discussed platform Z.
69. The Council records show it subsequently decided not to provide platform Z because it recorded that Mrs X had said she was happy with the platform she had purchased and would not use the one provided by the Council, and because Y’s school had told it Y would not need the Council’s online platform. It communicated its decision to Y’s school in early-September, but did not tell Mrs X until the end of September. I find this not an adequate level of communication and was fault.
70. I have seen no evidence Y’s school told the Council Mrs X had said Y would not need platform Z. The evidence indicates that the Council had told that to the school.
71. I have also seen no evidence Mrs X told the Council or Y’s school that she thought the purchased platform sufficient by itself, or that Y would definitely not use platform Z to top up the purchased platform. On the Council records I have seen, Mrs X maintained she wanted Y to access the provision of platform Z .
72. For these reasons I find, on the balance of probabilities, the Council recorded inaccurate information about the school’s and Mrs X’s views on platform Z. It then made its decision it would not arrange any alternative provision on the basis of that inaccurate information. This was fault.
73. I have decided there is insufficient evidence to find, even on the balance of probabilities, that it would have made a different decision but for the inaccurate information. This is because Mrs X expressed some concern that Y would not be able to work on platform Z every day and I have seen no evidence that the Council could have identified any other alternative education. For this reason I cannot find that Y missed education as a result of the Council’s faults.
74. Mrs X would like the Council to reimburse her the cost of the online platform she purchased. Mrs X made the decision to purchase the platform at around the same time the Council first became aware of the situation in early April. This was before any fault in the Council’s response. I have seen no evidence Mrs X asked the Council to pay for the platform when they spoke to discuss alternative provision she had requested. For these reasons I do not find the Council at fault for not paying for the online platform Mrs X purchased. I therefore cannot make recommendations on this point.
75. I find the Council’s faults caused injustice in the form of distress, uncertainty and frustration. I have considered our Guidance on remedies and recommend the Council apologise and make a symbolic payment of £200 to acknowledge the injustice.
76. I have considered whether to make service improvement recommendations. I have decided not to because we made recommendations about similar faults following a different recent investigation.

c) Complaint the Council failed to meet the statutory timescales when Mrs X requested an EHC Plan.

77. Mrs X first requested the Council carry out an EHC needs assessment for Y at the beginning of April 2024. The Council wrote to Mrs X in mid-April and confirmed receipt of her request. It wrote again in mid-May and told her it had decided to do the assessment. These steps were within the statutory timescales.
78. The Council should have issued the draft EHC Plan by mid-July. It did not do so until mid-October. It should have issued the final EHC Plan by mid-August. It did not do so until late November. The Council missed the statutory deadline for completing the process by just over three months. This was fault.
79. I have considered whether the EHC process delay caused Y to miss any special educational provision. The special educational provision in the EHC Plan is primarily delivered by teachers face to face. Had the delay not happened, it is likely the educational provision should have been secured for Y from late October 2024.
80. Mrs X told the Council Y could not receive that type of educational provision in September. There is also evidence that Y was on a part time timetable several months after starting at the placement in the summer of 2025. Based on this evidence I have decided I cannot decide, even on the balance of probabilities, that Y would have been able to receive the provision in the EHC Plan had it been finalised in late October. Therefore I do not find the Council’s delays caused missed special educational provision.
81. The Council has accepted fault for missing the statutory timescales in the EHC needs assessment process. It has offered to remedy the frustration and uncertainty caused with a symbolic payment of £300. I have considered our Guidance on Remedies and have decided I would not recommend a higher sum for the injustice.

d) Complaint the Council had poor standards of communication and provided insufficient information during the EHC process.

82. The Council wrote to Mrs X at each stage of the EHC needs assessment, and when it issued the draft and final EHC Plans. I find no fault with the level of information it provided during those stages.
83. I also note the Council has records of talking to Mrs X about the EHC assessment, and consultations for a specialist setting for Y, at various points throughout the process.
84. I have seen no evidence the Council had poor standards of communication or provided insufficient information about the EHC process throughout the period I have investigated. I therefore do not find it at fault for this part of Mrs X’s complaint.

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Action

85. Within four weeks of the date of the final decision the Council should:
1. Apologise to Y and Mrs X for the injustice caused by the delay and decision making regarding its Section 19 duties and for missing the statutory deadlines in the EHC needs assessment process. 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.
2. Make a total symbolic payment of £500 to acknowledge the injustice. This is made up of the recommended £200 for the injustice regarding the Section 19 duties, and £300 already offered for the injustice regarding the EHC needs assessment process.
86. The Council should provide us with evidence it has complied with the above actions.

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Decision

87. For the reasons explained in the analysis section I find the Council at fault that caused injustice to Mrs X and Y. I uphold parts b) and c) of Mrs X’s complaint. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman