Summary: Mrs H complained that the Council did not ensure her son was receiving alternative education after he was unable to attend school. And it delayed reviewing his Education, Health and Care Plan. We uphold the complaint because of both the Council not considering its alternative education duties and a delay in revising the Plan. The Council has agreed to our recommendations.

The complaint

1. Mrs H complains:

• her son (X) was out of his school. But the Council did not do anything to require the school to meet X’s needs, or make adjustments;
• the Council did not provide suitable alternative provision after X was unable to attend school;
• they made a request for education out of school (EOTAS). The Council agreed this, but did not put anything in place by the start of the autumn 2024 school term;
• there was a review of X’s Education, Health and Care (EHC) Plan in May 2024. The Council delayed issuing a draft and final plan;
• there were poor communications and each complaint deadline was missed.

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

8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s EHC Plan. So I have only investigated the actions of the school to the extent they impacted on its delivery of X’s EHC Plan.
9. Mrs H says that from early on after X’s move to the secondary school, the school had been indicating it was struggling to meet X’s needs. The later events give confirmation of that view. But I have used April 2024 (when X stopped attending the school site) as an appropriate time from which to look at the Council’s actions, as to then this was likely an issue for the school to manage, which is not something the Ombudsman can investigate.

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How I considered this complaint

10. I considered evidence provided by Mrs H and the Council as well as relevant law, policy and guidance.
11. Mrs H 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

Legal and administrative background

Education, Health and Care Plans

12. A child or young person with special educational needs may have an 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.
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. 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. 

15. 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 discontinue 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 of Practice (“the Code”) paragraph 9.176). The Council should then produce the final EHC Plan within eight weeks of that decision.

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. 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.
17. Children out of school should generally have provision which is equivalent to the education they would receive in school. The law does not define full-time education, but is commonly agreed to be equivalent to between 22 and 25 hours a week, depending on the age of the child. However, if a council is arranging one-to-one tuition, fewer hours might well be appropriate, given the increased intensity of learning. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
18. 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)
19. 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
20. 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.

What happened

21. The information below is a summary of relevant events, and does not include every everything that happened during this period.
22. The Council finalised X’s first EHC Plan on 14 February 2023. One of the provisions outlined in the Plan was for X to receive a broad-based curriculum.
23. X started a new school, at the start of secondary school age, in September 2023. Mrs H says in October they had a meeting at the school, where it advised it was likely it could not meet X’s needs. She says his timetable at the school reduced. And by February 2024 the school had made clear it could not meet X’s needs.
24. At the school’s request, X stopped attending the school in April. Mrs H says after this the school was sending some provision home, but it was nowhere near full-time. Mrs H complained to the Council that some parts of X’s EHC Plan were not being met.
25. The Council convened a meeting to review X’s EHC Plan, which took place on 10 May. The record of the meeting notes:
• X had a bespoke timetable. This involved activities off the school site (mainly physical activities) and some on-line mentoring support;
• the school’s view was it could not conceive of a way to bring X back into a class, given the nature of incidents when he had been in a class situation. A manager from the Council’s Special Educational Needs Assessment Team (SENAT) acknowledged the placement was “fragile” and at risk;
• the SENAT manager advised his view was everything was in place to provide X with the provision set out in Section F of his EHC Plan;
• Mrs H wanted X to stay in the classroom with support. The school’s headteacher explained why that was not possible;
• The SENAT manager advised it could consult with other possible educational settings;
• Mrs H asked about EOTAS. The Council’s manager said that was a possibility. But it was not the Council’s preferred approach, unless there was professional opinion that attending school would be harmful for a young person, or if the Council could not find an appropriate setting.
26. Later in May the Council responded to Mrs H’s complaint at the first stage of its complaints’ procedure. It noted the meeting earlier in the month, which it hoped would resolve the issues.
27. Mrs H asked to escalate the complaint. At first the Council advised its view was her concerns could be resolved outside the complaints procedure. But it later did accept the complaint and investigated it at the second stage of its complaints procedure.
28. The Council’s later complaint response says Mrs and Mr H had a follow up meeting in June with the SENANT’s manager. The Council says it does not have a record of that meeting. But its complaint response said, at the meeting:
• all agreed X should continue with the alternative education he was receiving; and
• Mrs and Mr H requested that the Council consider EOTAS, which Mrs H says the SENAT manager agreed to in principle.
29. In her complaint to the Council Mrs H says she heard nothing further from the SENAT after that meeting.
30. The Council says from September X was receiving support from a tutor for 7.5 hours a week. Mrs H notes this did not start at the beginning of term. X was also attending a farm and receiving some mentoring support. The Council was waiting for an education mentor to start (a further 7.5 hours).
31. At the end of September Mrs H had an initial meeting with the Council’s EOTAS team. The Council says, at the meeting, Mrs H asked it to approach another provider, which it did (X later started to attend that provision).
32. The Council responded to Mrs H’s complaint in November. This:
• apologised for some delay in communications from its SENAT;
• advised it had taken appropriate measures to ensure X continued to receive a suitable level of education in the run up to changing to an EOTAS programme;
• apologised for the delayed complaint response, which it said was partly due to a backlog. It offered Mr and Mrs H £100 payment for the delay.
33. In November, after the Council’s complaint response, Mrs H complained to the Ombudsman.

Events after Mrs H’s complaint to the Ombudsman

34. X’s mentor support did not begin until January 2025. The Council says, after that, X was receiving more than 19 hours of provision, the majority of which was 1-1.
35. The Council says it had review meetings with Mrs H about X’s provision in November 2024 and February and March 2025. The latter meeting noted it might be time for X to move on to other provision. Mrs H requested extra provision.
36. Mrs H says the Council did not issue a new EHC Plan until April 2025.
37. In response to my enquiries the Council advised:
• the reasons it could not meet the statutory deadlines for the EHC Plan review was because of experienced staff shortages;
• of ongoing challenges for it in meeting its statutory responsibilities; but
• it had reconfigured its service, which had led to an increase in the number of EHC Plans it had finalised.

Was there fault by the Council

X’s EHC Plan review

38. Generally, we expect councils to follow the timescales set out in the SEN Code which is statutory guidance (see paragraph 15). We measure a council’s performance against the SEN Code and we are likely to find fault where there are significant breaches of timescales.
39. The Council issued X’s first EHC Plan on 14 February 2023. The means, to comply with the Code’s requirement to issue a decision on a review of that Plan within 12 months, it should have held a review meeting by no later than 17 January 2024. It should have then issued a final revised EHC Plan by no later than 10 April 2024.
40. The Council did not hold a review meeting until 10 May 2024 and did not finalise the Plan until 1 April 2025. I understand there were complicating factors in the review of X’s EHC Plan. But, when compared to the Code’s timescales, there was delay of just under a year. That delay was fault.

Delivering the content of X’s EHC Plan (section 42 of the Education Act)

41. The question of what education was suitable for X was a question for the council to decide in the light of X’s EHC Plan. When X was no longer able to attend school, the council started a (delayed) review of his Plan. If Mrs H did not agree with the outcome of that assessment, she had a right of appeal to the Tribunal. But, due to the delayed process, Mrs H’s right of appeal was delayed.
42. The detailed record of the May meeting shows the Council did consider what was in place in terms of its duty to ensure that the school was providing X with the contents of his EHC Plan (under Section 42 of the Education Act). But the record does not address the question of whether X was receiving a broad-based curriculum (the provision the school had put in place was mainly physical activities). The Ombudsman cannot determine the extent to which the provision was meeting those needs. But I would have expected to see further consideration of this issue and to not do so was fault. This causes uncertainty for Mrs H about whether the Council might have arranged additional support had it considered this part of X’s EHC Plan.

Alternative provision (section 19 of the Education Act)

43. As well as the Education Act’s duties under section 42, it also places duties on local authorities under section 19. These are to provide alternative education to children in certain circumstances. This duty applies when a council finds that a child is unable to access school for an extended time, either because of permanent exclusion, illness, or for other reasons which make the school inaccessible to the child.
44. The school headteacher said in the May 2024 meeting that the school’s view was it was not appropriate for X to attend its premises, at least in the short term. The school had no plan in place for X’s reintegration and stated it found it unlikely that X could return to its classroom.
45. Despite this, it may be that the school and Council could have put some arrangement in place that would have helped X to attend in the future. And that was a step the Council was keen to explore. So I do not criticise the Council for wanting to maintain X on the school role to allow time for that to happen.
46. But in the short term there were no reintegration plans in place and it was not reasonably practicable for X to access the school. In those circumstances, the Council had duties under section 19 of the Act to ensure X was receiving alternative education, that this was suitable for his age and ability.
47. And, as the section 19 duty applied, the Council should have considered whether:
• the education X was receiving was full-time, or equivalent to full-time (perhaps less than full-time hours, due to the nature of some or all of the alternative provision) education; or
• full-time education was not, then, for reasons of illness or disability, appropriate for X.
48. The school was providing X with a package of education off-site. It appears that the provision met aspects of his EHC Plan, particularly with regard to physical activities. Mrs H’s contention is it was not enough and did not amount to full-time. The Council has not sent me any records it considered whether this was the case, or how it considered its section 19 duties. It is not in the May review records, presumably as that meeting was concerned solely with the contents of X’s EHC Plan. Nor is it any other document the Council sent. I find fault that the Council did not consider the issue. This causes uncertainty for Mrs H about whether the Council might have arranged additional support had it considered its duty.
49. By September, the Council had accepted EOTAS was an appropriate step for X. But:
• I accept Mrs H’s statement that the educational package did not begin at the start of term;
• a significant part of the provision did not begin until January 2025, a full term after it should have.
50. It was after the period this complaint considers that the full provision the Council had arranged started. So I will not make any finding about whether that amounted to full-time or equivalent.
51. The delayed right of appeal and the Council not considering its duties both cause uncertainty about whether things might have been different but for the faults.

Other issues

52. The Council has:
• accepted some issues with communications from its SENAT;
• offered Mrs H £100 for its delayed response to her complaint.
53. I would have expected the Council to keep a record of the June meeting (paragraph 28). To not have one was fault.

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Agreed action

54. I recommended that Council take the following actions within a month of my final decision.
• For the distress and uncertainty caused by the faults I have identified, I recommend that Council make Mrs H a payment of £1000.
• For the separate injustice to X of a loss of some of his education provision for a term from September 2024, I recommend that Council make a payment of £400.
• The Council’s proposed remedy of £100 for its delayed complaint response is suitable. If the Council has not already made this payment, it should now do so.
55. In response to another recent complaint, the Council has agreed to review its section 19 processes to ensure it meets its duties when a child is out of school. That work is ongoing, so I have not made an extra service improvement recommendations.
56. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

57. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman