Summary: Mrs B complained about the Council’s failure to provide alternative education for her son D who was not attending school. We found fault causing injustice. The Council has agreed to apologise to Mrs B and D and make a symbolic payment.

The complaint

1. Mrs B complained that Surrey County Council (the Council), in respect of her son, D failed to make suitable alternative provision for his education once it was aware in October 2023 that he was not attending school. This meant D missed out on essential education and Mrs B was caused significant distress and inconvenience.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. 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.
6. 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)

Back to top

What I have and have not investigated

7. We usually only investigate complaints made to us within 12 months of the events occurring. Mrs B complained to us in April 2025 about events going back to March 2023. I am not investigating back to that date as I consider Mrs B could have complained to us sooner. I am investigating the events since January 2024 when some alternative provision was considered, to the end of July 2024.
8. I cannot investigate the events from September 2024 as Mrs B appealed to the Tribunal about the content, provision and placement in D’s Education, Health and Care (EHC) Plan from this date.

Back to top

How I considered this complaint

9. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
10. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Special educational needs

12. 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. 

Alternative educational provision

13. 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.
14. 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)

What happened

Background

15. Mrs B’s son D had an EHC Plan but had not attended school since March 2023. In September 2023 the Council allocated a new caseworker to his case and discussed the problems with attendance at his school placement. The Council met with the school to discuss the 1:1 provision detailed in D’s EHC Plan. By the end of November 2023, the School was not providing 1:1 support and the Council gave 12 weeks’ notice to end D’s placement. Mrs B was unaware of this and believed D remained on the school roll until February 2024.

January – July 2024

16. The Council said at this point it took immediate action to make alternative educational provision. However, there is no evidence of this until 12 January 2024 when D attended a taster day at Placement Z. On 16 January Placement Z told the Council it could offer D a session once a week. The Council did not inform Mrs B of this response.
17. On 23 January Mrs B asked whether Placement Z had responded. On 31 January the Council’s funding panel (the Panel) deferred consideration of alternative provision for D and asked the caseworker to provide more information. On 7 February the caseworker clarified the request and asked if she should make a referral to a tuition provider.
18. On 19 February a manager approved Placement Z who then contacted Mrs B with a start date. She refused the offer saying it had taken too long to make and D had not enjoyed the taster day there. No further action was taken in respect of the referral to a tuition provider.
19. In the meantime, the Council issued a final EHC Plan naming a school in Section I for September 2024. The School had already said it could not meet D’s needs. Mrs B was very unhappy with this choice. Also, in January 2024 Mrs B had asked the Council to consider an Education Other Than at School (EOTAS) package.
20. In March 2024 the Council tried to source some speech and language therapy provision but without success. Another school declined to offer a placement to D.
21. On 10 April the Panel met to discuss Mrs B’s request for EOTAS. It refused Mrs B’s proposal and suggested tuition as an alternative.
22. On 3 May the Council approved a tutoring package of eight hours per week, and sessions started on 8 May. On 7 June the Council approved two hourly sessions of animal therapy and 10 hours of different tutor provision. The animal therapy started on 17 June and the tuition on 8 July.
23. Mrs B appealed the content of the EHC Plan and the named school in June 2024.

Formal complaint

24. In November 2024 Mrs B complained to the Council about the previous school placement and the lack of alternative provision. The Council responded in December 2024. It said alternative provision had been in place from January to July 2024. It upheld the complaint about poor communication and offered an apology.
25. Mrs B escalated her complaint to stage two of the Council’s complaints procedure. The Council responded on 17 January 2025. It said the content of the EHC Plan was for the Tribunal, what happened in the previous school was for the school’s complaints process, the Council provided alternative education once it was aware D was not attending school. In respect of the occupational therapy and SALT, it was waiting for Mrs B to say which provider she preferred, and it would then agree how to make up for any missed OT provision.
26. Mrs B complained to us in April 2025.

Findings

27. The Council said in its stage one and two complaint responses that it provided alternative education from January 2024. From the evidence provided this is incorrect: it did not put any alternative education in place until 7 May 2024, adding several more hours in June and July 2024. This was fault.
28. The Council was slow to act and there was some drift and delay in the Panel process. The Council did not respond to Placement Z’s offer (made on 16 January) until 19 February and did not inform Mrs B that an offer had been made, despite several requests from her. The combination of delay and poor communication meant the placement never started. This was fault.
29. Neither did the Council act on the caseworker’s suggestion to refer D to tuition provider in February 2024. There was no sense of urgency or a need to act given that D was not receiving any education at all. The Council took three months to consider Mrs B’s EOTAS request and then refused it in April 2024, suggesting tuition instead which the caseworker had already suggested in early February 2024. This was fault.
30. The Council did not provide any SALT or OT throughout this period. This was also fault.

Injustice

31. D received no education for four months, followed by eight hours for a month, increased to ten for a month and finally twelve for a few weeks in July before the end of term. There was no consideration if this was sufficient for D or equivalent to a full-time education.
32. Mrs B was caused distress and inconvenience throughout the period, exacerbated by the misleading complaint response which accepted no fault for the lack of education.

Back to top

Action

33. In recognition of the injustice caused to D and Mrs B I recommend the Council within one month of the date of my final decision:
34. apologises to Mrs B and D and pays Mrs B a total of £3,400, made up as follows:
• £2400 for no education or SEN provision for four months
• £1000 for partial education and no SEN provision for three months.
35. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.
36. I have not made any service improvement recommendations as the Council has implemented an action plan which is showing improvements.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman