Summary: We found fault on Mrs Y’s complaint against the Council about it failing to ensure her daughter, who has an Education, Health and Care plan, received provision and suitable full-time education when she was not at school. There were periods when provision was not in place. The Council agreed to send a written apology for the injustice the failures caused, pay £900 for lost provision, and review why delays and failures happened so they cannot be repeated.

The complaint

1. Mrs Y complains about the Council failing to ensure her daughter, who has an Education, Health and Care (EHC) plan and is not attending school, received:
1. suitable full-time education; and
2. provision set out in her plan.
2. As a result, her daughter lost provision and education for several years which cost the complainant financially as she paid privately for her to receive some. It has also caused a great deal of stress for the family as a whole.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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. 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)
7. 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.
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

9. We cannot investigate late complaints unless we decide there are good reasons. As Mrs Y complained to us in April 2025, we investigated her complaint from April 2024. I have seen no good reason why I should investigate before this date.
10. Any complaint she had about the adequacy of the provision set out in her EHC plan is not within our jurisdiction. This is because she had the right to challenge this at a tribunal. 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. 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)

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How I considered this complaint

11. I considered evidence provided by Mrs Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of the draft decision to Mrs Y and the Council. I considered the Council’s response.

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What I found

Education, Health and Care plans

12. 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. 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. 
13. 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 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)  
14. 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 show appropriate oversight in gathering information to fulfil their legal duty. As 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. 

15. There is a right of appeal to the tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement, or that no school or other placement is specified in their EHC plan;
• amendment to these elements of an EHC plan;
• decision not to amend an EHC plan following a review or reassessment; and
• decision to cease to maintain an EHC plan.

16. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to, or is not a consequence of, a matter that was, or could have been, part of an appeal to the tribunal.  

Alternative provision

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. 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)
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude, and to any special educational needs he or she may have. (Education Act 1996, section 19(6))
20. The courts have considered the circumstances where the section 19 duty applies. Case law states 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)

Funding

21. Element 3 funding, or ‘top-up’ funding, is the funding required over and above the core funding a school receives to enable a pupil with high needs to participate in education and learning. It contributes to the costs of special educational provision for children with high needs where support identified is more than the £6,000 the school had to contribute towards the cost of a child with an EHC plan.

What happened

22. Mrs Y complained about the Council’s failures to meet statutory duties towards her daughter, Z, who has an EHC plan. Z was not receiving suitable educational provision which she said was a breach of the Council’s duties under section 19 and section 42.
23. I set out key events below:

2024:

24. There was an annual review of Z’s EHC plan in April. The Council apologised for the delay getting provision for Z which had been agreed at panel which it was chasing up. Provider 1 was contacted to put in a three hour block of learning which could be increased when Z engaged.
25. In May, Mrs Y chased the Council three times as she had not heard anything from provider 1. She explained Z could not access education apart from the two hours she was funding herself.
26. The case review panel (the panel) held the same month did not agree to fund provider 1 or 2 and advised the school to use existing resources and the Brighton and Hove Inclusion Support Services (Inclusion Support). The Council said it did not tell the school to use provider 3 as claimed by Mrs Y but recommended more cost effective options. Initially, Z received four hours a week with provider 3 and two x 50 minute sessions with provider 2.
27. In June, the Council was alerted by Mrs Y to lack of provision and a reduced time table. The school also told the Council the alternative provision (NEST) at school was not working for Z. NEST provides care, nurturing, and a supportive environment for children with SEN. It was set up to support five SEN children but mainly for Z’s needs to allow her to access school.
28. The school explained it could not fund provider 1 as the funding was being used for internal provision. The Council responded saying as Z was not accessing NEST, it should review how the Element 3 top-up funding was being used by the school as this provision did not appear to be working.
29. It asked the school to look at other ways of using the funding, such as using a member of staff to provide learning at home.
30. The Council also told Mrs Y the panel refused the request for provider 1 the previous month. It told her what the panel had decided and about the award of Element 3 funding of £6,900 which the school could use to seek specialist support.
31. The final amended EHC plan was issued in June. The Council apologised for the ‘unduly long delay in our correspondence’ to reply to the annotations Mrs Y’s advocate made to EHC plan on 30 January.
32. In July, Mrs Y raised further concerns about provision (funding and not enough hours). School term finished on 24 July. The Council said the total missed days of education could not exceed 3 weeks and 2 days from when Mrs Y raised her concerns.
33. In September, the panel met again and decided to add provider 2 after receipt of further evidence. While provider 1 had been agreed, this provision was designed as a short term intervention for children with additional needs who were struggling to attend school. It was designed to support children to get back to school and re-engage with formal education. Mrs Y needed to be clear provider 1 was agreed for the short term only and there needed to be a co-ordinated plan of engaging Z back into formal learning with an agreed timescale. There needed to be continued use of the Inclusion Service for support with re-engagement.
34. In October, the Council issued a further final amended EHC plan. This continued to name her current school. Mrs Y claimed the panel meeting had agreed Z needed additional educational provision as the current provision was inadequate. The Council said the panel discussed increasing the tuition from provider 1 to ten hours a week and to fund provider 2 for two hours a week. Mrs Y said this did not happen.
35. In December, the school told the Council it had spent the existing top-up funding so a request for further additional funding was needed.

2025:

36. In January, a £9,000 top-up was agreed with a recommendation that an alternative to provider 1 be used. Provider 3 was used briefly until provider 4 was agreed.
37. In February, the school was to receive extra funding for additional provision such as using provider 1. Mrs Y also sent a formal complaint to the Council. She claimed: Z had been without suitable educational provision for more than six weeks due to administrative failures; due to the Council’s delays, funding needed was late which meant she lost her allocated tutor; the Council failed to ensure she received alternative provision; it breached its section 19 duties; it breached its duty under section 42 of the Children and Families Act 2014.
38. The Council received reports of inconsistency of tuition from provider 3 due to tutor illness.
39. In its stage 1 response to her complaint at the start of March, the Council said it was sorry to hear Z had received no educational provision since 25 February. It suggested she contact the school about it. It would also ask an officer to contact the school too so it could arrange provision quickly. It was aware the school had a NEST provision which could be considered and might be suitable on a part time basis.
40. Mrs Y asked for funding for provider 4 in July to start in September. Z received four hours from provider 2 along with her two x 50 minute sessions each week.
41. The panel decided in August to ask the school about it using its funding for provider 4 and end providers 2 and 3. The school was to review the alternative provision and bring the case back to the panel with additional information.
42. In September, there were two panel meetings. At the later one, the panel agreed Z would receive: three sessions a week at provider 4; continued sessions with provider 2; £15,350 top-up funding to the school to support the package. The Council asked the school for updates on provision.
43. The panel also recommended the school start the Attend Form process, as well as make a referral to the Social Communication Resource and the school mental health service/educational psychologist. The Attend Framework is an early intervention program developed by the Council to address low school attendance for pupils between the ages of 5 to 16. It is a collaborative approach with the school, family, and pupil, which aims to identify all contributing factors for the absence and to develop a support plan.
44. In October, the further final amended plan was issued. The panel also agreed provider 3 for two hours a week and a tutor for a 50 minute session from provider 2.
45. Mrs Y complained the Council:

• instructed the school to use provider 1 because of costs.

The Council told her this was incorrect. It explained schools are expected to deliver the provision set out in the EHC plan and a council must provide the funding to allow them to do so. The Council would only direct the school to provide a specific provision if it was necessary to meet the child’s needs and the school was not willing to do so.

• misrepresented the £9,000 funding approval as this was not, as implied, new allocated funding. The Council had only allocated £2,000 with the remainder from the school existing SEN budget.

The Council explained the £9,000 was not in addition to the previous funding, which meant the increase was £2,100. The school also had £6,000 from Element 2 funding which meant £15,000 in total. It considered there was a misunderstanding.

• Z was without education since 25 February 2025 which affected her confidence and development.

The Council told her the school had approached her to ensure she had a place there. It was awarded £9,000 to fund alternative provision outside of school to meet provision set out in her EHC plan.

46. In response to our enquiries, the Council explained:

• Provision by the school is monitored by the school and professionals through annual reviews;
• It considered Z’s case at case reviews in May, August, and September 2024 where it reviewed evidence and adjusted funding;
• There was liaison with the school and professionals;
• Adjustments were made to provision based on updated evidence;
• There were some delays putting provision in place because it took time to amend her EHC plan after an annual review as it did not receive the paperwork on the correct documentation within the required timeframe. There were also several requests from the family for additional funding which needed presentations at case review panels for agreement;
• While Z missed some education, the school’s alternative provision (NEST) was available to her; and
• Section 19 was considered through case reviews, adjusting funding, and engagement with alternative provision providers.

My findings

47. I found the following:
1. The Council accepted there was some delay getting provision for Z under her EHC plan in April 2024. I am satisfied this was fault and caused Mrs Y and Z some injustice. There was some lost provision and frustration.
2. In May, Mrs Y had to chase the Council about the lack of provision. On balance, I am satisfied this showed there was some missing provision which again caused her and Z injustice.
3. The evidence shows there was a panel review the same month which advised the school to use existing resources, Inclusion Support, but did not agree to fund provider 1 or 2.
4. In June, the Council was alerted to the lack of provision and reduced timetable. The evidence showed the Council responded and considered this information. It said the school should review the Element 3 funding as Z was not accessing NEST and look at other ways of using this funding. I am satisfied the Council acted when alerted to the lack of provision and reduced timetable.
5. The same month, the Council issued the final amended EHC plan.
6. In July, Mrs Y raised further concerns and the school term ended a few weeks later. The Council accepted there may have been just over three weeks of missed provision at this point. On the information I have, I consider this amounts to fault which caused Mrs Y and Z an injustice. There was some lost provision and further frustration and anxiety for Mrs Y.
7. I found no fault on what happened from this point to January 2025. This was because: there was a panel meeting in September which considered Z’s situation and adjusted providers, for example; the following month, the Council issued a further final amended EHC plan and the panel discussed increasing tuition from provider 1 with support from provider 2 as well; in December, the school told the Council it had spent the top-up funding and so asked for more money. There was no evidence of either Mrs Y or the school telling the Council about any further problems from October before this point; in January 2025, the Council agreed top-up funding with a review of the providers.
8. In February, Mrs Y complained and said Z had been without suitable education provision for more than six weeks. When it replied, the Council apologised for Z not receiving education from the end of February. It suggested she contact the school and an officer would also contact the school about it. On balance, I am satisfied that there was some missed provision. I consider there was some lost provision during February. I am satisfied this caused Mrs Y and Z injustice. This was because Z lost provision and again, there was some frustration and anxiety for Mrs Y.
9. There were further case reviews in September and October. I am satisfied the evidence showed the Council was reviewing the situation and looking at the level of funding needed.
10. The Council accepted there were some delays with putting provision in place and explained this was mainly down to external reasons, such as not being sent the required paperwork on time, as well as the funding requests received.

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Action

48. I considered our guidance on remedies.
49. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for the injustice caused by the failure to: promptly ensure provision under her EHC plan was made in early 2024; ensure provision was made for several weeks in July 2024; ensure there was suitable provision for six weeks in February 2025.
2. Pay £900 (£900 x 1 term) to Mrs Y for Z’s lost provision and injustice caused. This was calculated as: initial delay setting up provision April 2024 (0.25 x term); missed provision July 2024 (0.25 x term); missed provision February 2025 (0.5 x term).
3. Review why there was a delay in setting up provision in early 2024 and act to ensure this failure cannot be repeated on future cases.
4. Review why there was a failure to ensure provision was made in July 2024 and act to ensure this failure cannot be repeated on future cases.
5. Review why there was a failure to ensure provision was made in February 2025 and act to ensure this failure cannot be repeated on future cases.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I found fault on Mrs Y’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman