Summary: The Council is at fault for failing to provide alternative provision for Ms X’s child, Y. The Council also failed to produce a final Education, Health and Care (EHC) Plan within the statutory timescales. The Council has already provided an appropriate remedy for the failure to provide alternative provision but it should apologise to Ms X and make a payment to recognise the uncertainty and frustration caused by the EHC Plan delays.

The complaint

1. Ms X complained:
• The Council failed to provide an education for her child, Y, between September and December 2024 causing them to miss education. Although the Council accepted this fault, Ms X considered the remedy offered by the Council insufficient for the injustice to Y.
• The alternative provision arranged for Y supported their access to education but did not provide education, therefore was not meeting their educational needs.
• There was a delay in finalising Y’s EHC Plan.

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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. 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)
4. 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.
5. 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.
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)
7. 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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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms 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

EHC Plans

10. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out their needs and what arrangements should be made to meet them.
11. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the young person; and
• Section I: The name and/or type of educational placement 

12. 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 young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).
14. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Alternative Provision

16. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. 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)
18. 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))
19. 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)
20. 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’)

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What happened

21. The following is a summary of the key events relevant to this complaint.
22. Ms X’s child, Y, has special educational needs. At the beginning of 2024 Y was on roll at a mainstream secondary school. They had an Individual Healthcare Plan and were waiting for an EHC needs assessment. Y had low attendance at school.
23. In April 2024 the Council arranged 2 hours a week provision for Y with Provider A. This was to support Y and to enable them to integrate into school, alongside a part-time timetable.
24. In May 2024 the Council issued a final EHC Plan for Y. Section F of the plan included provision to prioritise Y’s emotional well-being, sense of belonging and academic progress. In Section I the plan named Y’s mainstream secondary school.
25. In July 2024 Ms X requested mediation with the Council about the content of the EHC Plan.
26. In August 2024 the Council accepted the reintegration plan for Y to attend their secondary school was not working and decided it was appropriate to provide further alternative education from September 2024 whilst further planning took place.
27. In September 2024 Y continued their provision with Provider A. Additionally Y’s school arranged 3 hours per week provision with Provider B to support their social and emotional well-being. The Council also contacted Provider C, who could offer Y 15 hours per week tuition from October 2024.
28. In September 2024 Ms X and the Council attended mediation where Ms X requested amendments to Y’s EHC Plan. The Council agreed to make amendments and it issued a draft amended plan in October 2024. The Council was also working with Ms X to find a suitable place of education for Y to be named in their EHC Plan.
29. In October 2024, Ms X contacted the Council to advise she did not feel Provider C was suitable for Y and identified her preferred option, Provider D. The Council said it considered Provider C was suitable for Y but said it would explore alternative provision with Provider D.
30. In November 2024 Ms X complained to the Council using stage one of the corporate complaints process. She complained the Council had failed to provide alternative provision for Y from September 2024. The Council partially upheld her complaint. It said it considered Provider C was available to Y from October 2024, but Ms X decided not to proceed.
31. At the beginning of December 2024 Provider D began providing education for Y for 6 hours per week.
32. In January 2025 Ms X complained to the Council under stage two of the corporate complaints process. She said the Council accepted its duty to provide alternative provision for Y in March 2024 but had failed to keep the provision under review. The Ombudsman decided in a previous complaint that we would not consider provision put in place for Y between May 2024 and July 2024 as there was not enough evidence of fault by the Council.
33. Ms X also complained Provider C had not been available to provide education for Y in October 2024. The Council upheld Ms X’s complaint and agreed it was at fault for not providing sufficient alternative provision for Y between September 2024 and December 2024. The Council said that, by agreeing to consider Provider D, it delayed making provision readily available to Y.
34. Ms X also complained Provider A and Provider B supported access to education for Y but did not provide education. The Council did not uphold this complaint, saying the provision met some of the needs in Section F of Y’s EHC Plan.
35. The Council offered and paid a symbolic financial remedy to Ms X of £1200 for Y’s missed education between September and December 2024 and £200 to acknowledge her distress and frustration.
36. The Council issued a final amended EHC Plan naming ‘a special school’ as the type of school in section I in June 2025. When a school was identified for Y, In July 2025, the Council issued an updated final EHC Plan which named a particular special school as the provider of their education.

My findings

37. Between September 2024 and December 2024 Y received alternative provision from Provider A and Provider B, receiving an average of five hours provision each week. The Council recognised that additional provision was not readily available.
38. The provision from Provider A and Provider B did meet some of Y’s identified special educational needs as set out in their EHC Plan. Y was able to take part in activities, mentoring and support that was flexible, tailored to their needs and enabled them to remain engaged with education.
39. Although the Council arranged up to 15 hours per week provision with Provider C, Ms X did not feel it was suitable for Y.
40. There is evidence to show the Council was working to arrange increased education provision for Y. However, the Council accepted that, by agreeing to consider Provider D, it delayed making provision available to them.
41. The Council has accepted it was at fault for not providing Y with sufficient alternative provision between September 2024 and December 2024. This caused an injustice to Y as they missed out on education. The Council, through its complaints procedure, has made a payment to Ms X to acknowledge the impact of the missed provision. This is in line with our guidance and I am satisfied this was an appropriate remedy.
42. The Council issued a draft amended EHC Plan in October 2024. After this it should have issued final plan within around eight weeks. However, it did not issue this until June 2025. This delay was fault.
43. It is not possible to say, even on balance, what provision Y would have received if the Council had named a type of school sooner, and during this time Y received some alternative education provision. However, the delay caused uncertainty and frustration and delayed Ms X’s right of appeal to the first-tier tribunal.

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Action

44. Within one month of the final decision the Council has agreed to apologise to Ms X and pay her £500 to acknowledge the frustration and uncertainty caused by the delay to Y’s EHC plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
45. The Council will provide us with evidence it has complied with the above action.

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Decision

46. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman