Summary: Ms X complains the Council failed to provide educational provision to her child, as outlined in his Education, Health and Care (EHC) Plan. The Council is at fault for failing to arrange a suitable education when the school said it was unable to meet the child’s needs and the Council has failed to follow statutory timeframes when finalising the child’s EHC Plan following a reassessment of needs. The Council has also failed to provide Ms X a backdated personal budget. The Council has agreed to provide a suitable remedy for the injustice caused.

The complaint

1. Ms X complains the Council failed to arrange the educational provision as outlined in her child, Y’s, education, health and care plan and it failed to communicate with her effectively. Ms X says there was a period where there was no suitable education arranged for Y and the Council has failed to fully remedy the injustice caused.

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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. 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)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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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What I have and have not investigated

7. I have not investigated matters that occurred before September 2023. This is in accordance with the legislation as referenced above at paragraph 3.
8. I have not investigated the actions of the school as they are not within the Ombudsman’s jurisdiction as referenced in paragraph 4 above.

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How I considered this complaint

9. I considered Ms X’s complaint and the information she provided.
10. I considered the information I received from the Council in response to my enquiries.
11. Ms X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

Education, health and care plans

12. 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 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 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)  
14. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
15. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
16. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
17. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Alternative provision

18. 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.
19. 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)
20. 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)
21. 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
22. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Council’s complaint handling procedure

24. The Council has a two-stage process when responding to complaints. The Council’s policy states it will respond to Stage 1 complaints within 20 working days. It also states that Stage 2 complaints will be responded to within 28 days of receipt of the request.

What happened

25. What follows is not a description of every event that happened. It is a brief summary of some of the events.
26. Ms X has a child, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. Y was attending a specialist school named in his EHC Plan. An incident occurred at the school where Y became significantly distressed. Ms X says this had a detrimental impact on Y and she was unhappy with the way the school managed the situation. I understand Ms X has complained to the school.
27. An annual review meeting was held on 15 November 2023 and it was attended by Ms X, the school and the Council. The school said in the meeting that it was of the view that Y had emotional and behavioural needs the school was unable to meet. The school raised concerns about Y’s attendance and engagement. It said it would work with Ms X to devise a plan to help Y overcome the obstacles he was facing and if no improvement was made then Y would come off roll at the school.
28. On 24 January 2024 the school told the Council that they were looking to end Y’s placement and it requested an emergency review meeting.
29. A progress review meeting was held on 31 January 2024. Ms X and the school were in attendance. The Council did not attend. On the same day, the school notified the Council it could no longer meet Y’s needs and his placement would end on 13 March 2024.
30. On 16 February 2024, Ms X stopped sending Y to school. She notified the Council Y was no longer attending.
31. On 18 June 2024, Ms X arranged and paid for a tutor to provide Y with an education.
32. On 18 July 2024, Ms X requested a reassessment of Y’s needs.
33. On 12 August 2024, the Council responded to Ms X’s complaint and it acknowledged there were delays in arranging alternative provision for Y and issuing the final EHC Plan. The Council said it would ensure the final EHC Plan is issued by 13 August 2024, a personal budget would be agreed and as a remedial measure, it will pay the personal budget retrospectively from 13 March 2024.
34. On 20 August 2024, the Council advised Ms X statutory timescales would not be met because there was a delay in an Education Psychologist (EP) being allocated to Y’s case. The EP report was received by the Council on 16 September 2024.
35. The Council issued a draft EHC Plan on 19 September 2024. A final EHC Plan was issued in February 2025.

Council’s complaint handling

36. Ms X complained to the Council on 29 April 2024. On 13 June 2024 she chased the Council for a response. The Council sent its Stage 1 response to Ms X’s complaint on 12 July 2024. It apologised for the delay in responding and said it was due to unprecedented demands within the service and staff changes.
37. The Council received Ms X’s Stage 2 complaint on 15 July 2024. The Council sent its Stage 2 response to Ms X on 12 August 2024. It apologised for the delay in responding.

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Analysis

Y’s education from September 2023

38. Ms X complains the school did not provide Y with the provision in his EHC Plan for 2 years. I am unable to investigate matters prior to September 2023 due to limitations on the Ombudsman’s jurisdiction.
39. In response to my enquiries, the Council told me it was of the view the provision contained in Y’s EHC Plan was being delivered by the school and it was not evident in the annual review held in November 2023 that the provision was not being secured. However, the notes from the annual review raises concerns about Y’s needs changing, the need for a plan to identify and overcome obstacles to Y’s engagement and if the plan does not work then the placement at the school will end and a bespoke education package will be implemented. It was proposed the package of education would be funded by a personal budget. This demonstrates the Council was aware from 15 November 2023 that there were concerns with Y’s attendance and engagement but there is insufficient evidence from the annual review for me to make a finding that the provision in Y’s Plan was not being delivered before 31 January 2024.
40. The Council says it did not owe Y a duty to arrange alternative provision or the provision in his EHC Plan because Y was still on roll at the school until 13 March 2024 and the provision was available at the school. However, on 31 January 2024, the school advised the Council it could no longer meet Y’s needs and on 16 February 2024, Ms X stopped sending Y to the school and informed the Council of this. This should have prompted the Council to consider if the school was available and accessible to Y. I have not seen any evidence the Council did this. This is fault. Statutory guidance says the Council has a duty to arrange a suitable education for a child, whether or not they are on the roll of a school. The council also has a duty to make sure the child receives the special educational provision set out in section F of an EHC Plan.
41. The Council upheld Ms X’s complaint about the delay in arranging alternative provision when Y’s placement ended. It agreed to provide her with a personal budget and backdate it to 13 March 2024, the date Y’s placement ended. Ms X has not received this backdated payment from the Council.
42. Y stopped attending school on 16 February 2024 and received no education from this point. Although Y was on roll at the school, it was unable to meet his needs. The Council was aware Y had stopped attending on 16 February 2024 and was not receiving an education and it is evident that from 31 January 2024, the place at the school was no longer suitable for Y because it was unable to meet his needs.
43. Between 31 January 2024, when the school said it could no longer meet Y’s needs, and 13 March 2024, the date the Council said it would backdate the personal budget to, there is a gap in remedy for the loss of educational provision for Y, of approximately five weeks. The Council has made a payment of £300, as recommended by the Ombudsman, to remedy this loss of provision. The amount took into account the education Y received from 31 January 2024 to 16 February 2024.
44. In the Council’s Stage 2 complaint response, on 12 August 2024, it acknowledged there were delays in arranging alternative provision and as a remedial measure it would pay the personal budget retrospectively from 13 March 2024.
45. The Council advised me in February 2025 that it had backdated the budget. However, evidence provided by Ms X has shown the Council is yet to fulfil this promise. The Council’s delay in not providing Ms X with the backdated personal budget as promised is fault. It has caused frustration and uncertainty over a significant period of time. This injustice warrants a remedy.
46. Ms X has shown a personal budget was not approved until February 2025 and therefore there is personal budget to backdate. I acknowledge this is the case and a symbolic payment to address the loss of education is warranted.
47. Ms X requested a reassessment of Y’s needs on 18 July 2024. Taking into account the summer holidays, I consider the Council should have issued Y’s final EHC Plan by the end of December 2024. I understand there was some initial delay due to the lack of EPs but the Council received the EP advice in September 2024. I do not consider the shortage of EPs is the cause of the delay after this point. The Council issued the final Plan at the end of February 2025. This is a delay of two months.
48. 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 is fault.
49. The delay in issuing the final EHC Plan caused Ms X frustration and uncertainty. It also delayed her right to appeal to the SEND Tribunal. In response to the Ombudsman's recommendation, the Council has made a symbolic payment of £200, £100 for each month of delay, to recognise the frustration and distress Ms X experienced.

Council’s communication and complaint handling

50. The Council has accepted there were delays in responding to Ms X’s complaint. It has now provided her with a full response to her complaint and apologised for the delay. The Council also offered a single point of contact rather than two caseworkers for Ms X’s two children who have EHC Plans. The Council’s response to the matters regarding communication and complaint handling is satisfactory and there is nothing further I can add.

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Agreed action

51. To remedy the outstanding injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing for failing to provide Ms X with a backdated personal budget payment as promised;
• Pay Ms X a symbolic payment of £3920 to acknowledge the loss of education; and
• Pay Ms X £500 as a symbolic payment to acknowledge the delay in providing the backdated personal budget as promised, the frustration it caused and the uncertainty over a prolonged period.
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

The Council is at fault. It has agreed to remedy the injustice caused. This complaint is now closed.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman