Summary: Mrs X complained the Council failed to organise alternative provision for her daughter, Y, when Y could not attend school. She said the Council failed to ensure Y received the provision in the Education, Health and Care (EHC) Plan and failed to review the plan within the legal timescale. Mrs X said this distressed the family and Y missed education and plan provision. The Council was at fault. The Council did not ensure Y received education or EHC Plan provision for a term and a half. The Council did not review the plan within legal timescales. This frustrated Mrs X and Y missed education and EHC Plan provision. The Council agreed to apologise and make a financial payment.

The complaint

1. Mrs X complained the Council failed to organise alternative provision for her daughter, Y, when Y could not attend school. She said the Council failed to ensure Y received the provision in Y’s Education, Health and Care (EHC) Plan and failed to review the plan within the legal timescale. Mrs X said this distressed the family and Y missed education and plan provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

8. 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.
9. 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)
10. 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)
11. 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))
12. 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)
13. 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’)
14. 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. 
15. 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)  
16. 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. 

17. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
18. 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.
19. There is a right of appeal to the Tribunal against a council’s:

• 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;

20. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
21. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
22. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
23. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
24. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

What happened

25. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
26. Y has an EHC Plan. The plan named school B. Y started to find attending school difficult from September 2023.
27. School B put a learning plan in place for Y in February 2024. Mrs X told the Council Y was not attending school B.
28. School B called an emergency annual review in March 2024. The meeting noted the Council should amend the EHC Plan. Mrs X continued to chase the Council for alternative provision and to consult with schools since this meeting.
29. The Council issued the final EHC Plan in May 2024. The plan named school B.
30. The day after the Council issued the EHC Plan, it started to consult with education placements for Y.
31. School B ended Y’s placement in July 2024.
32. The Council started to provide some provision to support Y from September 2024. The Council gradually increased Y’s provision.
33. Mrs X complained to the Council in March 2025. She complained Y had not attended school since 2023 and the provision in place was not working.
34. The Council issued its complaint response in April 2025. The response said the Council believed Y was accessing the education she could. The Council confirmed it was chasing education provisions to respond to consultations. The Council accepted the delays frustrated Mrs X.
35. Mrs X asked the Council to escalate her complaint to stage two at the end of April 2025. She said she asked for alternative provision in February 2024. Mrs X said the Council missed deadlines and did not arrange alternative provision.
36. The Council issued its final complaint response in May 2025. The Council accepted it had not completed the annual review within timescales and delayed providing suitable alternative provision.
37. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to provide education and a financial remedy.
38. In response to my enquiries the Council accepted it did not act for three months after Mrs X told it Y was not receiving any education or plan provision. The Council also accepted it had not completed the annual review of Y’s EHC Plan within the statutory timescale. The Council offered to apologise, pay £3,600 for the term and a half Y missed education and plan provision and pay £500 for the delayed annual review process.

My findings

Education and EHC Plan provision

39. When the Council issued Y’s EHCP, it had a duty to secure the special educational provision in the plan (Section 42 Children and Families Act). Councils also 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”.
40. Mrs X told the Council Y was not receiving education or plan provision in February 2024. The Council confirmed it should have accepted the section 19 duty and provided EHC Plan provision from this date. The Council did not act until after it issued the EHC Plan in May 2024, a three-month delay. This is fault. Y missed education and plan provision.
41. When the Council issued Y’s EHC Plan in May 2024, this gave Mrs X an appeal right to the Tribunal. The law says the Ombudsman cannot consider a matter appealable to the Tribunal. I cannot consider any missed provision after this date as Mrs X could have appealed the placement named in the plan to the Tribunal. Mrs X reported the Council named the wrong school in the May 2024 EHC Plan. The Council has accepted the error, but the Ombudsman would still expect someone to appeal to the Tribunal if they disagree with the plan. It was reasonable for Mrs X to have used her appeal right.
42. In response to my enquiries the Council accepted it delayed providing alternative education and plan provision for three months, one and a half academic terms. The Council offered £2,400 per term, a total of £3,600. This is in line with the Ombudsman’s guidance on remedies. This is a suitable remedy in this case.

Annual review

43. Paragraph 17 confirmed the Council must review an EHC Plan every year. The Council accepted it delayed completing the 2025 annual review.
44. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. This frustrated Mrs X and frustrated her appeal right to the Tribunal.
45. In response to my enquiries the Council accepted this fault caused Mrs X an injustice and offered a £500 remedy. This is in line with the Ombudsman’s guidance on remedies. This is a suitable remedy in this case.

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Action

46. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for the missed education and plan provision and distress caused by the delayed annual review. 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.
• Pay Mrs X the £500 offered to recognise the distress caused by the delay in reviewing Y’s EHC Plan.
• Pay Mrs X the £3,600 offered for not providing Y with education and EHC Plan provision for one and a half academic terms. This money should be used for Y’s benefit.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman