Summary: Ms X complains the Council failed to provide her with an education since June 2022. Ms X also complains the Council failed to review her EHCP. We have concluded our investigation with a finding of fault. The Council failed to ensure Ms X received a suitable education and failed to deliver the provision in line with her Education, Health and Care (EHC) Plan between June 2023 and July 2024. We also found the Council failed to properly consider its Section 19 duty from June 2023, and failed to adhere to statutory timescales when carrying out an annual review. The Council has accepted our recommendations.

The complaint

1. Ms X complains that the Council has failed to provide her with an education since June 2022. Ms X says the Council failed to communicate in a timely manner, pursue school placements effectively, or provide alternative education such as tutoring while she awaited a placement. Ms X also complains that the Council failed to review her EHCP within the required timeframe. Ms X says that, as a result of the Council’s actions, she has been deprived of an education and has experienced significant distress. Ms X would like the Council to address her situation urgently, provide an apology, and offer suitable redress for the harm caused by the missed education.

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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. The First-tier Tribunal (Special Educational Needs and Disability (SEND)) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. 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.
5. 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(i), as amended)
6. 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

7. I considered evidence provided by Ms X and the Council, as well as relevant law, policy and guidance.
8. Ms X and the Council were offered an opportunity to comment on my draft decision and I considered any comments submitted before making a final decision.

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What I found

Special educational needs

9. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
10. 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 (S42)).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)

Alternative provision

General section 19 duty

11. 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 S19 or alternative education provision (AP).
12. 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)
13. 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))
14. 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’)

Available and accessible

15. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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)

Focus report

16. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
17. Where councils arrange for schools or other bodies to carry out the functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

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What happened

Background

18. During events in this complaint, Ms X was originally enrolled at School A. Ms X has an EHC Plan which was issued in October 2022. In Section I of Ms X’s EHC Plan, the setting is described as a ‘Mainstream- out of year group’.

Education

19. At the point Ms X’s EHC Plan was issued in October 2022, Ms X was still enrolled at School A and left the setting formally in June 2023. From the evidence available to me, it is understood that Ms X last physically attended School A in April 2022.
20. School A confirmed to that Council that Ms X had refused to attend, but home tutoring was put in place and an offer of online learning from May 2022. This included 1:1 tutoring, at 4 x 1 hour sessions per week, home visits at 1 x 1 hour session per week, and pastoral manager support therapeutic sessions, 4 x 30 min sessions per week. School A says that Ms X engaged in some tutor sessions, but this slowly declined.
21. The Council acknowledges that it had not secured a school placement by September 2023, and Ms X was formally considered as ‘not in education, employment or training’.
22. The Council consulted with a number of schools from October 2022. The evidence demonstrates the following consultations to mainstream settings took place, to little avail:

• Two in October 2022
• Five in November 2022
• Two in January 2023
• One in March 2023
• One in November 2023
• One in April 2024
• One in July 2024
• One In September 2024
• And a further one in for home tutoring in June 2024.

23. The Council accepts that it was unable to meet provision and the needs identified in Ms X’s plan as they were unable to secure a suitable provision from September 2023.
24. The Council confirmed it made an offer of tuition to Ms X in June 2024, for 1:1 tuition for 10 hours per week. The Council says this would have supported Ms X to access core subjects until a school/college placement could be secured in line with Ms X’s preference.

Annual Review

25. Ms X’s EHCP was issued in October 2022. The subsequent annual review was held in February 2024.

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Analysis

Education

April 2022 – July 2023

26. For the period prior to June 2023, I do not find fault in the Council’s actions. The evidence shows that education was available to Ms X through School A, including home tutoring and online learning. While Ms X did not fully engage, the provision remained accessible, and there were no formal assessments or professional recommendations at that time indicating she could not attend with reasonable adjustments.
27. However, once Ms X formally left School A in June 2023, the Council were aware that she was without education. From this point onwards, the Section 19 duty applied, requiring the Council to arrange suitable alternative education. There is no evidence that the Council took adequate steps to ensure Ms X received this provision between June and September 2023. Accordingly, I find the Council at fault for the half term between June 2023 – July 2023.

September 2023 – June 2024

28. From September 2023 to June 2024, when Ms X was no longer enrolled at School A, nor in any other form of education, there is no evidence that the Council provided any alternative provision, despite being aware that she was without education.
29. The Council acknowledges that it was unable to secure a suitable placement for Ms X and that there were delays in reallocating her case, which further contributed to the lack of provision. Although extensive consultations were made with mainstream schools and alternative placements from October 2022 to September 2024, these efforts did not result in securing a place for Ms X, and the Council failed to put in place interim provision for a significant period. As a result, Ms X was left without suitable education between September 2023 and June 2024, causing her educational disadvantage and distress.
30. Based on the evidence provided, I am also making a finding of fault in relation to the Council’s duties under Section 19 of the Education Act 1996 for the period from September 2023 to June 2024. While the Council initially took steps to consult with schools and provided some education through School A until June 2023, there is no evidence that it arranged alternative provision for Ms X after June 2023, despite being aware that she was out of education. Under Section 19, the Council had a duty to provide suitable education for Ms X when she was unable to attend school, yet it failed to do so for at least nine months, leaving her without access to education and causing her educational disadvantage and distress.

June 2024 - July 2024

31. The Council confirmed it made an offer of tuition to Ms X in June 2024, for 1:1 tuition for 10 hours per week.
32. The offer of 10 hours per week of 1:1 tuition in June 2024 was not sufficient to constitute full-time education. Significantly reduced hours should only be provided where there is clear evidence that a child cannot tolerate more, and I have not seen evidence to suggest this in Ms X’s case. Additionally, this offer did not match the provision set out in Ms X’s EHCP, which the Council had a legal duty to secure and deliver. The failure to provide adequate and suitable education meant Ms X continued to miss out on the support she required.

Annual Review

33. The Council was at fault for failing to hold Ms X’s annual review within the required timescales. The review should have taken place no later than October 2023, but instead, it was not held until February 2024, resulting in a delay of over four months.
34. Delays in annual reviews undermine their purpose—ensuring an Education, Health and Care Plan (EHCP) remains appropriate and meets the child’s needs. As a result, Ms X experienced avoidable uncertainty, distress, and a prolonged period without appropriate educational provision, which impacted her educational development and well-being.
35. In Ms X’s particular case, this also meant the Council failed to identify in a timely manner that Ms X was not receiving a suitable education, delaying efforts to secure an appropriate placement and consult with suitable college options.

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Agreed action

36. I have considered our published guidance on remedies when considering an appropriate remedy for injustice identified in this complaint.
37. In line with our published guidance, I have considered the impact of the loss of educational provision on Ms X and arrived at a remedy payment of £1,350 per term. This reflects the partial loss of education for half a term between June 2023 and July 2023, and the full loss of education for two full terms and half a term between September 2023 and June 2024. I have applied a £900 multiplier for the second half of the term after the Council's offer of tuition in June 2024, arriving at a total of £4,500.
38. To prevent similar occurrences and remedy injustice identified in this complaint, the Council will:
1. Pay Ms X a remedy amount of £4,500. This is to acknowledge loss of education and provision in line with her EHC Plan.
2. Provide an apology to Ms X for injustice identified in this complaint. The apology should be in line with our published guidance on remedies.
3. Review its process to ensure that reallocated cases are not impacted by delays in annual reviews. The Council should provide us with the outcome of its review.
4. The Council should review Ms X’s current circumstances to assess her educational needs and determine what additional support can be provided to help her catch up on missed education. The Council should engage directly with Ms X to understand any barriers she faces and ensure that appropriate, personalised support is put in place. The Council should provide us with the outcome of its review.
39. The Council will complete action points a-b within one month of the Ombudsman’s final decision, and action points c-d within two months of the Ombudsman’s final decision. The Council will provide us with evidence it has complied with the above actions.

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Final decision

40. We have concluded our investigation with a finding of fault. The Council failed to ensure Ms X received a suitable education and failed to deliver the provision in line with her Education, Health and Care (EHC) Plan between June 2023 and July 2024. We also found the Council failed to properly consider its Section 19 duty from June 2023 and failed to adhere to statutory timescales when carrying out an annual review. The Council has agreed to our recommendations.

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Investigator's decision on behalf of the Ombudsman