Summary: We upheld a complaint from Mrs E, finding the Council failed to adequately consider her child’s access to education during the 2023-24 academic year. We also found fault in it delaying issuing an Education, Health and Care Plan following a review. We considered the injustice caused by these faults included a loss of provision for the child and distress caused to Mrs E. The Council accepted these findings. It has agreed to apologise to Mrs E and make a symbolic payment to her.

The complaint

1. Mrs E complained the Council failed to provide her child F, who has special educational needs, with full-time education after they began school in September 2021. Also, that it failed to update F’s Education, Health and Care (EHC) Plan following a review held in February 2024.
2. Mrs E said as a result, F missed a significant portion of their education and became isolated from their peers. Mrs E said she could not go to work because she had to stay at home to meet F’s needs. She also could not access free school meals for F.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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)
9. 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

10. I partially investigated Mrs E’s complaint the Council failed to provide F with access to a full-time education from September 2021. In the section below headed ‘findings’ I explain why the passage of time prevented me investigating this part of the complaint in full. There was no limit on my investigating the other part of Mrs E’s complaint, which concerned what happened after an early review of F’s EHC Plan in February 2024.

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How I considered this complaint

11. I considered evidence provided by Mrs E and the Council as well as relevant law, policy and guidance.
12. I also gave Mrs E and the Council an opportunity to comment on a draft version of this decision statement and / or provide any evidence considered relevant to its content. I took account of their comments before issuing this final version.

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What I found

Relevant legal and policy considerations

The Council’s Section 19 duty

13. Under Section 19 of the Education Act 1996, 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.
14. The courts have considered when the section 19 duty applies. A council has 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)
15. 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))
16. The education provided by the council must be full-time unless the council decides 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)
17. The law does not define full-time education but children with health needs should have provision 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, because of its greater intensity. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
18. In 2022, we 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
19. 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.

20. Government guidance (Working together to improve school attendance) states all pupils of compulsory school age have an entitlement to a full-time education. In very exceptional circumstances there may need to be a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable forms part of a re-integration package. Schools and councils should not treat a part-time timetable as a long-term solution. 

Special educational needs

21. 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 the arrangements made to meet them. The EHC Plan contains different sections. We cannot direct changes to the sections about a child’s needs, education, or the name of their educational placement. Only the council or the SEND Tribunal can do this. 
22. 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).
23. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others provide all special educational provision set out in section F for every pupil with an EHC Plan. But we consider councils should show keep an oversight and gather information to fulfil their legal duty. So, as a minimum we expect them to: 

• check the special educational provision is in place when it issues a new or amended EHC Plan 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. 

24. The council must arrange for a review of the EHC Plan at least once a year to make sure it is up to date. A parent or school can ask for an early review. They might do this if they consider a child’s needs have changed since they received their Plan or if the Plan is no longer meeting the child’s needs.
25. Where the council agrees to bring forward an annual review it must follow the same timescales for completing the review as with a scheduled annual review. So, the council must issue a decision within four weeks of a review meeting saying if it intends to amend, maintain or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
26. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). This should also happen within four weeks of the date of the review meeting. Councils must then issue the final amended EHC Plan within a further eight weeks.

The key facts

27. F is a child with special educational needs. They began Reception year at a mainstream school in September 2021, on a part-time timetable.
28. Mrs E first asked the Council to assess F’s education, health and care needs in April 2022. It declined.
29. During Year 1 of their education, F showed increasingly dysregulated behaviours in school. They remained on a part-time timetable. They had multiple fixed term exclusions.
30. At the beginning of Year 2 (September 2023), F remained on a part-time timetable. The school reviewed this regularly and the hours fluctuated. But F could only attend school in the mornings and by December 2023 the Council recorded this was for one and a half hours a day. They attended an alternative provision setting two mornings a week, for six hours.
31. F’s school, supported by Mrs E, asked again for the Council to assess F’s education, health and care needs. This time the Council agreed.
32. With its request for an EHC needs assessment the school said that F worked better with one-to-one support. It believed F could attend school full-time with that in place. The school reported F engaged well with the alternative provision. While the Council assessed F’s needs, the school reported taking specialist advice from the Council’s Inclusion Team and a specialist provider.
33. In January 2024 the Council issued F with an EHC Plan. Mrs E wanted the Plan to name a specialist school. But the Council chose to name F’s mainstream school instead.
34. The Plan envisaged that F would receive 19 hours education a week in school, supported by a teaching assistant. They would continue to spend six hours a week at the alternative provision setting. A case note recorded by the Council around the time it issued the Plan, said that its Inclusion Team would support F with transitioning back to school.
35. At the end of January 2024, the Council recorded F not making progress towards returning to school. With F having only limited attendance the Council agreed to the school bringing forward a review of F’s EHC Plan, which took place in February 2024. The school then forwarded the outcome of the review to the Council. It says it did not receive this for around four weeks, in March 2024. But Mrs E showed me a text message the school sent to her which said it had submitted the review paperwork in February. The Council’s case notes did not record a date to confirm when it received the paperwork.
36. In March and April 2024, the Council continued to record that F became highly dysregulated in school and could sometimes only remain there for a few minutes. The Council agreed in April 2024 that following the early review it would amend F’s Plan. However, it did not send Mrs E details of any amendments.
37. F’s pattern of attendance at school continued. An Education Psychologist offered advice and in July 2024 the school called a ‘Team Around the Family’ meeting. This agreed that F needed a specialist school placement and the Council indicated agreement to this.
38. In July 2024 the Council issued a draft version of a revised EHC Plan for F. It began consulting a specialist school wanted by Mrs E.
39. Also, in July 2024 Mrs E complained about the delay in issuing F’s Plan following the emergency review. She also complained that F had not had access to a full-time education since starting school and about a lack of engagement and communication from Council officers. Further Mrs E complained that F’s lack of access to school meant they had no access to free school meals which disadvantaged her financially. This was as well as the costs she faced at a result of F’s needs which had resulted in extensive damage to her home.
40. The Council sent a reply before the end of the month. It said the Council could not investigate concerns about its decision to refuse a needs assessment for F in April 2022 because of the passage of time. But it apologised for delay in amending F’s Plan following the February 2024 review. It said the Council continued to consult prospective education settings and that it would keep Mrs E updated.
41. Mrs E escalated her complaint, saying the Council had failed to respond to her grievances. She highlighted that F had been on a part-time timetable since starting school and the lack of alternative provision they had received.
42. In its final reply, sent in August 2024, the Council recognised the concern that F “has not been receiving a suitable education”. It said pupils should usually not have part-time timetables for more than six weeks. The Council said that F’s caseworker would liaise further with their school to “ensure the provision in [their] EHCP is being followed […] until the EHCP review is completed”.
43. In response to a specific request from Mrs E that she receive some compensation for the service F had received, the Council said that it did not have any compensation policy.

Previous Ombudsman investigations

44. Over the past two years we have issued several decisions finding fault with the Council’s consideration of its duties under Section 19. These have asked the Council to ensure that it considers its duty when it learns a child is not receiving full-time education. We have consistently drawn its attention to the advice contained in our Focus Report (see paragraph 19).
45. In addition, in June 2024 we said the Council must have in place an action plan to deal with complaints about special educational needs provision. One part of that was that it must contain advice for officers on the remedies it would offer when it upheld a complaint.
46. The Council has liaised with our office and provided us with details of wider work it is undertaking to improve its SEND service. Its action plan includes work to review its practice on complaint management. It also includes work to revise policies including on its Section 19 duties.

My findings

The Ombudsman’s jurisdiction

47. The term jurisdiction refers to our legal powers to investigate a complaint. In this case I had to consider two potential obstacles to an investigation.
48. The first was the question of time. As I explained in paragraph 5 we usually cannot investigate complaints about events known to the complainant for more than 12 months at the point they contact us. This was relevant to Mrs E’s complaint, as she considered the Council should have provided F with an EHC Plan much sooner than it did. And that it should have done more to ensure their access to education.
49. I considered these grievances first took shape around April 2022 when Mrs E asked the Council to assess F’s needs. But Mrs E did not contact us to explain her dissatisfaction with the Council until September 2024. Therefore, I had to treat any dissatisfaction Mrs E had about the Council’s involvement in F’s case before September 2023 as a late complaint. I did not find any special reasons that allowed me to investigate that earlier period.
50. The other potential obstacle to my investigation was that Mrs E had twice had appeal rights to the SEND Tribunal (see paragraphs 6 and 7).
51. The first was in April 2022, when the Council refused to assess F’s education, health and care needs. So, even if I had exercised discretion to look at the Council’s actions from that time (or earlier), I could not look at that specific decision. This was because I knew of no special reasons which prevented Mrs E from appealing if she disagreed with its decision at the time.
52. Second, Mrs E had another chance to appeal in January 2024 when the Council issued F with an EHC Plan. In particular, Mrs E explained in her complaint she was unhappy the Council did not name a specialist school in F’s Plan. I did not investigate that specific decision, given Mrs E’s right to make an appeal to a Tribunal about the school named on F’s Plan. Other than the Council, only a Tribunal can direct which school a child should attend.
53. However, this did not prevent me investigating the events that followed issue of the Plan. Soon after this, the Council agreed to bring forward a review of F’s Plan. And after that Mrs E waited for the Council to clarify its intentions. Would it agree to amend the Plan? And if so, how?
54. In such circumstances I could understand why Mrs E did not make an appeal, especially once she knew the Council intended issuing an amended Plan.
55. My investigation therefore considered the time taken for the Council to act and its communications with Mrs E following the review. This was as well as the events between September 2023 and January 2024 described in the ‘key facts’ section above.
56. My investigation could not consider events in the current academic year (from September 2024) given this was when Mrs E contacted us. However, when considering any actions the Council might take to remedy the complaint, I could take account if there were any action is should have completed before September 2024 which remained outstanding.

The complaint that F did not have access to a full-time education

57. The Council knew in September 2023 that F had only limited attendance at school, supplemented by six hours a week at an alternative provision setting. Limited enquiries would have enabled the Council find out this was not a recent development. Since beginning school F had never attended full-time and only ever attended part-time. The school provided it clear statements saying it did not consider it could provide full-time education for F unless they had an EHC Plan providing for more intensive support. It told the Council that F only engaged successfully with education when at the alternative provision setting they attended for six hours a week.
58. Given that background, the Council should urgently have considered what duty it owed F under Section 19 of the Education Act. I consider its failure to do so was a fault.
59. At some point later in the Autumn term its Inclusion Service offered advice to F’s school. It also offered support in helping the school draw up a plan for F’s hoped for reintegration after they received an EHC Plan in January 2024. I considered in the period immediately after issue of the EHC Plan, the Council could justify not reconsidering F’s access to education. Because the purpose of the Plan was that F should now have had an education tailored to meet their needs at their school, with more support in place. The Council needed to give F time to access that.
60. However, it quickly became clear that F could not access the education provision set out in their EHC Plan. By March 2024, the Council knew F continued to have minimal attendance at school and attempts for them to re-integrate had shown no tangible results. It therefore needed to reconsider how F could access education provision. Which by now, the Council was under a duty to arrange under Section 42 of the Education Act.
61. Unfortunately, I found no evidence the Council did that. I recognised it did not ‘do nothing’. It agreed to review F’s EHC Plan, helped the school access further advice and attended a meeting in July 2024 where it agreed to search for a specialist school. But between there was no evidence it asked itself whether it could do more to ensure F received an education suitable to meet their needs. That inattention was a fault.
62. I considered the result of this fault was that F missed some education provision. The evidence showed that while F consistently struggled to access their mainstream school, they engaged well with alternative provision. I considered had the Council turned its mind towards the duties it owed F both in the Autumn term of 2023 and then from around March 2024 onward it would have noted that.
63. So, the Council could have explored increasing the alternative provision on offer to F. While F has significant needs there is a lack of evidence to show they cannot cope with full-time education, or at least provision much closer to full-time than they received during the events investigated.
64. I found F’s absence from education also had an impact on Miss E. Given F’s needs I could not say her life would not have experienced some disruption. But I considered she had to stay at home more than would otherwise have been the case which impacted on her ability to work. She also had the expense of providing meals for F, which otherwise would be the responsibility of the school. Those matters were a source of distress for Miss E and that was her injustice.
65. I also noted that it could not have helped Council officers dealing with F’s case that they did not have a satisfactory policy to address the needs of children in F’s position. The Council provided policies which explained how it will look to secure education for children excluded from education and those with a certified sickness absence from school. But it did not have any policy for children who “otherwise” cannot access education, including those with special educational needs.
66. That was a glaring omission, one we have highlighted in the regular decisions made in recent years, finding fault with the Council where it has failed children out of school. However, I recognised the events covered by this complaint pre-dated some of those complaints. I also noted the Council was reviewing its policy for children absent from school because of sickness. I consider this would provide it with an opportunity to have a more comprehensive policy addressing all circumstances when it may have a duty to provide a child with education who is out of school.

The complaint about the Council’s actions after the early review

67. The Council was at fault for how long it took to confirm its intention to amend F’s EHC Plan following the early review. It should have done that in four weeks but took around twice that time. I recognised some of this delay might be due to F’s school not sending the review paperwork promptly. Although the evidence I saw did not provide for a clear conclusion on this point.
68. And more significantly, the Council was at fault for not confirming its planned amendments once it had confirmed its intention to amend the Plan. It should have sent Mrs E proposed amendments within four weeks of the emergency review. It took five months. While any delay from the school may have prevented it meeting the four-week target, at least four months of the delay therefore rested solely with the Council.
69. The result of these delays was that Mrs E did not know the Council’s intended decision making around F’s Plan. I considered this uncertainty a form of distress, which was a further injustice to Mrs E.

Other matters

70. I also considered the Council at fault for its complaint handling. Its first stage reply to Mrs E, did not comment on large parts of her complaint. In particular, her concern about F’s limited access to education over a prolonged period of time and that they did not benefit from free school meals.
71. The stage two reply was more comprehensive. But the Council could not consider Mrs E’s request for consideration of ‘compensation’ because it had no policy to consider this. We do not consider it is for complaint procedures to provide compensation. In our guidance on remedies, we explain that “it is not our role to assess economic losses or award compensation”. However, where someone has suffered injustice, we try to put them back in the position they would have been had an error not occurred. Our focus is on restoring lost services and taking practical steps to put matters right. Where that is not possible, we will recommend remedies that recognise the impact of faults. That can include a symbolic payment.
72. We expect councils to adopt a similar approach. So, where someone asks for a financial consideration as part of their complaint, whether they use the word compensation or another term, the Council should not close its mind to this. In this case, the absence of any policy to recommend a symbolic payment meant officers could not consider this.
73. I considered that “fettering discretion”. This is where an organisation adopts a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. I therefore found fault in the Council fettering its discretion to consider a financial remedy for Mrs E’s complaint.
74. I welcomed the Council’s decision to revise this policy. But the impact of these faults still added some unnecessary frustration, time and trouble to Mrs E’s experience in complaining. This was a further injustice to her.

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Agreed Action

75. In paragraphs 62, 64, 69 and 74 I set out where I considered fault by the Council caused injustice to Mrs E and F. The Council has accepted these findings and to remedy that injustice it has agreed, that within 20 working days of this decision, it will:
1. apologise to Mrs E, accepting the findings of this investigation and taking account of the advice at paragraph 76 below;
2. make a symbolic payment to Mrs E of £4100; see paragraph 77 for the calculation of this amount.
76. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology agreed.
77. I calculated the symbolic payment agreed at paragraph 75b as follows:
• for F’s loss of provision during the Autumn term 2023 and Summer term 2024 I recommended a payment of £1250 for each term taking account of their age, access to some alternative provision and limited schooling;
• for F’s loss of provision during the Spring term 2024 I recommended a payment of £750, taking account that for some of this time the Council worked on supporting a reintegration for F to school;
• for Mrs E’s distress arising from F’s absence from school and resulting impact I recommended £500;
• for Mrs E’s distress arising from the Council’s failure to issue F’s updated EHC Plan between May and August 2024 I recommended £250;
• for Mrs E’s time and trouble caused by faults in the Council’s complaint handling, I recommended £100.
78. Part of our role is also to consider any wider learning for the Council and whether we should recommend any improvements to its services, such as reviewing an existing policy. On this occasion I decided against making any such recommendations. As I set above the Council explained its commitment to revisiting its current policy towards education for children out of school and its complaints procedure. It was not necessary therefore to recommend anything that would duplicate that work.
79. The Council agreed to provide us with evidence when it had complied with the above actions.

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Final Decision

80. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs E and F. The Council accepted this finding and agreed action that I considered would remedy that injustice. I therefore completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman