Summary: Miss X complained that the Council failed to provide an education to her daughter when she was unable to access school and failed to ensure she received the provision set out in her Education, Health and Care plan. She said this impacted on her daughter’s mental wellbeing. We have found the Council was at fault. The Council has agreed to take steps to remedy the injustice.

The complaint

1. Miss X complains the Council did not provide an education to her daughter, Y when she was unable to access school. She says she provided evidence that she could not access the online work as she needed teacher input and workbooks. She also complains that the support set out in Y’s Education, Health and Care (EHC) plan was not delivered.

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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. 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. 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

5. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
6. Miss 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, guidance and policy

7. A child with special educational needs may have an education, health and care (EHC) plan. This document describes the arrangements which should be made to meet the child’s needs.
8. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. (Children and Families Act 2014, Section 42).
9. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
10. If a child has an EHC plan the Council also has an ongoing duty to arrange the support guaranteed by the plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
11. Councils have a duty under section 19 of the Education Act 1996 to arrange suitable education for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made.
12. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision. Statutory guidance ‘Arranging Education for Children Who Cannot Attend School Because of Health Needs’ says councils should ensure suitable education is arranged as soon as it is clear a child will be absent from school for 15 days or more, whether consecutive or cumulative.
13. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
14. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
15. The law says that the education provided by the council must be full-time unless the council determines that full-time education would not be in the best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
16. 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))

Council’s Complaint Procedure

17. The Council’s published procedure says that they will aim to respond to Stage 1 complaints within 10 working days but if the complaint is more complex to review, this can be extended to 20 working days.
18. At Stage 2 of its complaint procedure, the Council says it aims to respond within 20 working days but if a complaint is more complex it can be extended to 40 working days.

What happened

19. In September 2024, Y started attending the school which was named in her EHC plan, after previously being out of education.
20. Y stopped attending after the first week due to anxiety and bullying. Miss X told the school and the Council that Y could not return. The Council told Miss X that as she was in a notice of amendment period, it would send a consultation to another school.
21. At the end of October, the Council received an email from Y’s school, advising that Y was not attending school. The school invited the Council to attend the annual review as Miss X had requested a change of placement for September 2025.
22. An annual review was carried out in the middle of November at the request of Miss X. The Council informed the school to look at alternative provision if Y was still not attending school. It was agreed that certain alternative provisions would not be suitable due to Y’s needs. The school advised that a mainstream setting was appropriate.
23. At the end of November, the Council wrote to Miss X advising that it intended to amend Y’s EHC plan.
24. In early December Miss X contacted the Council to say the school had provided information about books to purchase for home learning. She wanted to know whether this could be funded by school as they were receiving funding to maintain Y’s EHC plan. Miss X also said she had managed to find alternative provision for 90 minutes per week and asked what else could be provided.
25. In mid-December, the Council formally notified Miss X through a notice of amendment, that the EHC plan would be amended.
26. In January 2025, Miss X asked the Council about a change of placement, advising that Y had not been attending school since the start of the academic year. Miss X queried the education the school was providing and that it only amounted to 90 minutes per week.
27. The Council contacted the school and said it had a responsibility to provide Y with an education whilst the Council explored a change of placement It told the school that 90 minutes per week was not adequate education and that while Y was not accessing education, the school should look to provide tutoring or source an alternative provision placement using the funding allocated from Y’s EHC plan. The Council offered to discuss this further with the school if it required.
28. In the same month, the Council sent consultations to three further schools at
    Miss X’s request.
29. In early February, Miss X made a complaint to the Council, saying that it had not secured alternative provision for Y and that the placement had broken down in the first week of September 2024.
30. In the same month, the Council contacted Miss X to update her on the consultation responses. It said that Y’s school would remain named on the EHC plan as the school had said it could meet Y’s needs.
31. In mid-February, the Council contacted the school to reiterate it was the school’s responsibility to provide an education to Y, and it could contact the Education Participation Advisory Service for advice.
32. The school told the Council that it did not receive evidence from a medical professional supporting Y being absent from school and the school did not submit any referrals to the education team to support with Y’s long-term attendance.
33. In early April, the Council issued an amended EHC plan naming a new placement.
34. In early June, the Council responded to Miss X’s complaint. The Council said they had not been told that the school could not support Y’s health needs and that the school had told it that they were providing work for Y to access remotely. It also said that it had communicated with the school on three occasions to request that appropriate education was in place for Y.
35. The Council said it did not have oversight of the work being set by the school. It advised Miss X to follow the school’s complaints procedure if she needed further explanation on that aspect. It acknowledged and apologised for a late response to her query about purchasing books. It said that while the school did receive funding for Y, in some circumstances secondary schools recommend resources for parents to purchase, to support their child’s education.
36. In the middle of June, Miss X escalated her complaint because the Council did not handle the complaint within its own timescales and it had not done what it was supposed to do. Miss X also said that she believed it was the Council’s responsibility to ensure the support in the EHC plan was delivered and that she had told the Council on multiple occasions that Y’s needs were not being met. She also confirmed she sent medical evidence for non-attendance to the school in June 2024 and had not been asked for any further evidence.
37. In October, the Council responded to Miss X’s Stage 2 complaint, and she then contacted the Ombudsman. The Council maintained it was the school’s responsibility to provide Y’s education. The Council did say that from March 2025, five hours per week online tutoring had been provided by the school.

My findings

38. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the right special educational needs support for every pupil with an EHC plan.
39. We do, however, consider that 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 right 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 plan review process.
• Quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
40. As part of my enquiries, I asked the Council to explain what consideration it gave to its duties under section 19. The Council told me that Y’s school had arranged education and that it had challenged the amount of alternative provision being offered. This response does not demonstrate that the Council considered whether it had its own duty to arrange suitable alternative education for Y. This was fault.
41. The Council was aware from September 2024 onwards that Y was not attending school and remained out of education. While it challenged the school about the provision being made, the duty under section 19 rested with the Council, not the school. There is insufficient evidence that the Council properly considered whether it should arrange suitable alternative education for Y during this period. This was fault.
42. I also asked the Council whether it considered Y to be receiving suitable full-time education during the period she was out of school. The Council told me that a mainstream placement could meet Y’s needs and that it worked to secure an alternative school placement. However, this does not demonstrate that it considered whether the education Y was actually receiving at the time was suitable and full-time. This was fault.
43. I have also considered Miss X’s complaint that the Council had not delivered the provision in section F of Y’s EHC plan. Much of the provision was intended to be delivered within a school setting and, once Y stopped attending school, delivery of that provision became closely linked to whether suitable education was being arranged. In the circumstances, I consider the injustice arising from any missed section F provision is reflected in my finding that Y was without suitable education for a prolonged period.
44. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025). Although this guidance was published after the events in this complaint, it reflects the approach we expect councils to take when considering their responsibilities towards children who are out of education.
45. From September 2024 until the new placement was named in April 2025, the evidence indicates that Y was not receiving suitable full-time education. The Council failed to properly consider and discharge its section 19 duties during this period. This was fault.
46. Miss X made her initial complaint to the Council in February 2025 and this was not responded to until June 2025 – a delay of three months. Her Stage 2 complaint was made in June 2025 and not responded to until October 2025 – a delay of two months. These delays were significantly outside the timescales set out in the Council’s published complaints procedure and were fault. I understand the Council has already made a payment in respect of the Stage 1 delay, which is reflected in my recommendation below.

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Action

47. Within four weeks the Council has agreed to:
• Write to Miss X, apologising for the Council’s failure to ensure Y received suitable education whilst she was out of school. We publish guidance which sets out what we expect an effective apology to look like. The Council will consider this guidance when writing to Miss X.
• Make a symbolic payment of £1,800 to Miss X, on Y’s behalf to reflect Y’s loss of educational provision between September 2024 and April 2025.
• Make a further symbolic payment of £100 to recognise the delay in dealing with Miss X’s complaint, which caused her stress and inconvenience.
48. The Council will provide us with evidence it has complied with the above actions.

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Decision

49. The Council was at fault. This caused injustice to Miss X and Y, which the Council will now take action to address.

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Investigator's decision on behalf of the Ombudsman