Summary: Miss X complained the Council failed to arrange suitable education for her daughter, W, when she was unable to attend school. The Council was at fault. This caused Miss X upset and frustration and meant W missed out on education and special educational provision she was entitled to. To remedy their injustice, the Council will apologise, pay Miss X £3550 and review its practices to prevent the fault happening again.

The complaint

1. Miss X complained the Council failed to arrange suitable education for her daughter, W, when she was unable to attend school. Miss X said this caused W stress, upset and had a physical impact on her.

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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. 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.
4. 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)
5. 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

6. 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).
7. Miss X complained to the Ombudsman in November 2024 and said the issues with W’s education had been going on since September 2022. The period before November 2023 is late because they occurred more than 12 months before Miss X complained to the Ombudsman. I have seen no good reason why Miss X could not have complained to us sooner, so I have not investigated the whole period she complained about. I have chosen to begin my investigation in January 2023, because that is when the Council first became aware W was not in school.
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6). My investigation ends in September 2024, when the Council issued its final response to Miss X’s complaint. It is open to Miss X to complain to the Council again if there are matters which occurred after September 2024 that she remains unhappy about.

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How I considered this complaint

9. I have considered:
• All the information Miss X provided and discussed the complaint with her;
• The Council’s comments about the complaint and the supporting documents it provided; and
• The relevant law and guidance and the Ombudsman's guidance on remedies.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Alternative provision

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 section 19 or alternative provision.
12. 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)

Education, Health and Care Plans

13. 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 which include:

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

14. 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.
15. There is a right of appeal to the Tribunal about several decisions councils make in relation to EHC Plans. This includes a council’s

• Description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan; and
• Amendment to these elements of an EHC Plan.

Personal budgets

16. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Special educational provision

17. The council has a duty to “secure” 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)  

EHC Plan annual reviews

18. 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 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176). The council must send its decision within four weeks of the review meeting.
19. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). The council must then consider the response to its proposed amendments and issue a final amended EHC Plan. This must happen within 12 weeks of the annual review meeting.

What happened

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. In September 2022, W began going to a mainstream school. She had an EHC Plan which included special educational provision to be delivered by school staff. She had problems attending and began to miss classes. By November 2022, W stopped attending school altogether.
22. At the same time, the school began an annual review of W’s EHC Plan by holding a meeting. Following that meeting, the Council decided to amend W’s Plan.
23. In late January 2023, the Council attended a meeting with Miss X and the school where it discussed W’s attendance issues.
24. The Council issued W’s final amended EHC Plan at the end of January. It named W’s school in section I, which Miss X was not happy about. She did not appeal to the SEND Tribunal. Miss X said this was because she did not realise how wrong the provision in the Plan was and because the Council had assured her that if she allowed it to finalise the Plan, that would free up funding for W’s school to arrange alternative provision.
25. Around the same time, Miss X began paying for a tutor to work with W for four hours per week. By late May W’s school began paying for the tuition instead.
26. The school held an emergency annual review meeting in late March. The meeting heard Miss X and the school felt mainstream education was not right for W and that she needed alternative provision.
27. In late April 2023, Miss X asked the Council to approve Education Otherwise Than At School (EOTAS) for W. EOTAS is package of educational provision delivered outside of a school setting. Miss X sent the Council a copy of her preferred package. In late May the Council held a Decision Making Group (DMG) meeting to decide what school to name in W’s EHC Plan. The DMG refused EOTAS. It decided:
• It needed more information from CAMHS;
• It wanted more information on what support the school was providing W to help her return to class;
• It wanted to know why the school felt it could not meet W’s needs; and
• The Council should consult with special schools specialising in social, emotional and mental health needs to decide if W should transfer to one of them.
28. Following the meeting, the Council spoke to the Children and Adolescents Mental Health Service (CAMHS) and sought information from W’s school. In early June, the Council issued a consultation to two special schools (school B and school C). School C said it could not offer W a space soon after.
29. The Council issued its decision to amend W’s EHC Plan at the end of May 2023, along with W’s draft amended Plan. Miss X was unhappy with the provision in the Plan.
30. The Council told me it held alternative provision review panels in early August, mid-September and mid-October 2023. It has no record of the panels’ consideration.
31. In mid-September the Council told Miss X it was waiting to hear back from W’s school about what reasonable adjustments it was making to help W reintegrate into school. Miss X responded to say it had already tried adjustments and they had not worked.
32. The Council chased school B for a response to its consultation twice in September and in early October. School B confirmed it could not offer W a space.
33. The Council issued a consultation to another school, school D, in early October. The school said it could not accept W a few days later.
34. The DMG held another meeting in late October. It heard a Council officer had attended a meeting with Miss X and the school where it appeared the school was putting a plan in place to help W transition back into attending. However, when the officer asked questions about that plan, it became apparent W would not be able to transition back into class any time soon.
35. The DMG decided the officer should ask the school if W was doing any of the work it sent home. It also asked what the Council’s education welfare officer was doing with W.
36. Miss X asked the Council to consult with another school, school E. She also said she wanted amendments to W’s EHC Plan. The Council confirmed it would ask the DMG to consider naming school E. It said it would ask W’s school to hold an early annual review to consider amendments to W’s EHC Plan.
37. In early November, the Council contacted the school, which said it was not providing any work for W to do at home and the Council’s education welfare officer was not involved with W.
38. The DMG met again in early December. The meeting noted W’s anxiety had significantly increased since her EHC Plan had been written and there was an annual review meeting due a few days later to make sure the provision in the Plan met W’s needs. The DMG decided it needed to wait for the outcome of the annual review. The school held the annual review meeting in mid-December 2023.
39. In January 2024, W began receiving six hours of tuition per week. Around the same time, Miss X asked the Council to name EOTAS in W’s EHC Plan and provide her with a personal budget to commission the EOTAS package.
40. In early May, a DMG meeting considered W’s case to decide if she should stay on roll at her school or have EOTAS instead. The DMG decided it would not agree EOTAS and that W should stay on roll at her school. It said if Miss X wanted to pursue getting a personal budget for W, she should provide an updated list of the provision she wanted the budget for.
41. Miss X told the Council she wanted a personal budget so she could commission a range of provisions including tuition.
42. In mid-May the Council issued a draft amended EHC Plan for W.
43. A DMG held another meeting in late June 2024. It agreed a personal budget for W to pay for the tuition Miss X requested.
44. Subsequently, W said she wanted to attend a school in the 2024/2025 school year. W was able to attend a trial period at a school successfully and as of April 2025, was due to transition into it.

Previous Ombudsman investigation

45. The Council agreed, in August 2024, to remind staff of the timescales for EHC Plan annual reviews.

Findings

EHC Plan annual reviews and amendments

46. The school held an annual review meeting in late March 2023. To comply with the legal timescales, the Council should have issued its decision to amend W’s EHC Plan by late April, not mid-May. The delay was fault. It should then have issued the amended EHC Plan no later than mid-June, twelve weeks after the March meeting. The Council did not issue an amended EHC Plan, which was also fault.
47. The Council held another annual review meeting in mid-December 2023. It should have issued its decision to amend by early January 2024. Although the fact the Council issued a draft amended Plan in mid-May indicates it decided to amend W’s Plan, the Council did not issue a decision notice. This was fault. The Council should have issued W’s amended plan by early March 2024. It had not issued W’s amended EHC Plan by September 2024, the end of the period I have investigated. This was an unacceptable delay, particularly given the Council’s failure to complete W’s previous annual review and amendment properly.
48. It is not clear why some of the delays in how the Council progressed the March 2023 and December 2023 annual reviews and amendments occurred. However, some issues clearly contributed to the delay:

• The May 2023 DMG meeting decided the Council needed more information from W’s school. It requested that information but did not chase it up until September 2023. It ultimately failed to get that information at all;
• The Council delayed consulting with specialist schools after the May 2023 DMG meeting until June and failed to chase up the consultation to school C until September; and
• By the time the Council held another DMG meeting in late October, it still did not have enough information to come to a decision on what school to name in W’s EHC Plan, so it asked for updated information.

49. I cannot say, even on balance, what the Council would have changed the special educational provision in W’s EHC Plan to if it had reviewed and amended W’s EHC Plan properly. I also cannot say whether it would have named a school Miss X felt W could attend. This means I cannot conclude the faults in this section caused W a significant personal injustice. However, I am satisfied the faults caused Miss X significant avoidable frustration, uncertainty and upset. They also prevented her from appealing to the SEND Tribunal, to challenge the contents of W’s Plan, including the special educational provision in it and the school or type of school named it.
50. The Council agreed to take steps to improve how it does annual reviews in August 2024. I have therefore not made a recommendation to address the annual review issues in this complaint. I have recommended action to improve how the Council deals with amendments to EHC Plans.

Educational provision- what I cannot investigate

51. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
52. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
53. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
54. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. In those situations, the period we cannot investigate ends when the council issues a new appealable decision.
55. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
56. The Council issued an EHC Plan for W in late January 2023, which named W’s school. Miss X did not appeal that Plan to the Tribunal despite disagreeing with the school named. However, the reasons Miss X gave for not appealing, as set out in paragraph 24, do not persuade me it was unreasonable for her to have appealed. Even if Miss X was unaware of how wrong, in her view, the provision was for W, she was still aware the Plan named W’s school in section I. Whether the final EHC Plan ‘unlocked’ funding for W’s school to allow it to commission alternative provision for W would not have been affected by an appeal to the SEND Tribunal.
57. Miss X’s complaint that W did not have a suitable education while she was not attending school occurred as a consequence of the Council’s decision to name the school in her EHC Plan. Therefore I cannot investigate that part of Miss X’s complaint between late January 2023, when the Council issued the final Plan, and late May 2023, when the Council issued a new appealable decision, the decision to amend W’s EHC Plan. I can, however, investigate between late May 2023 and September 2024.

Educational provision

58. Councils have a duty to arrange alternative education for children, where the child would not receive a suitable education otherwise. The key question is whether the school the child is on roll at is “available and accessible” to them. Often, when a council becomes aware a child in its area is not attending school, it will work with the child’s school to try strategies and different approaches to help the child reintegrate back into school, and to help the school meet the child’s needs. These are in addition to adjustments the school might already have tried. When this is successful, there is no duty on the council because the school had become available and accessible to the child. In taking this approach we expect councils to consider what support is already available to the child and what other support is needed without delay. We also expect them to put any support necessary in place promptly.
59. Councils also owe a duty to secure the special educational provision in a child’s EHC Plan. Where the special educational provision is intended to be delivered wholly within a school setting, councils meet their duty by funding a school place for that child, providing the school remains available and accessible to them.
60. The Council has no record of what the alternative provision panels it held in August, September and October 2023 considered. It is also unclear why the panels stopped in October, when W remained out of education until the end of the period I have investigated; September 2024. This poor record keeping was fault and caused Miss X some uncertainty about what exactly the panels heard and decided.
61. The Council held DMG meetings to decide what educational placement W should attend, as part of the EHC Plan annual review and amendment process. This, in effect, involved consideration of whether W’s current school was “available and accessible” to her. If the school was available and accessible, then the Council would not normally agree a change of setting. Therefore, the DMG meetings show how the Council considered whether it needed to arrange alternative provision to educate W and provide the special educational provision in her EHC Plan.
62. There were issues with the DMG’s consideration of whether the school was available and accessible to W, which was fault. The issues were as follows:
• In the late May 2023 DMG meeting, the Council decided to seek more information about why W’s school felt it could not meet her needs and what it had done so far. The Council sought that response but then failed to chase it up and ultimately failed to obtain it. This meant that over a five-month period, between May and October 2023, the Council did not make any efforts to explore whether W’s school was available and accessible to her, with or without additional support from the Council.
• At the October 2023 DMG meeting, the Council heard from one of its officers that W would not be able to reintegrate back into school any time soon. This indicates that the school was no longer available and accessible to W, at least in the short term. There is no evidence to show how the DMG considered that information.
• Instead, it decided to seek more information from the school about homework and any involvement with a Council education welfare officer. Once the Council heard that the school was not sending work home and there was no involvement from an education welfare officer, it should have again considered whether the school was available and accessible to W. There is no evidence of that consideration.
• After December 2023, the Council took no action to consider whether W needed alternative provision until the May 2024 DMG meeting.
• The June 2024 DMG meeting agreed Miss X could have a personal budget to commission tutoring for W. A personal budget is the amount of money it takes to commission the special educational provision in a child’s EHC Plan. For a child, like W, whose provision was solely delivered in a school setting, the personal budget would be the money the Council paid to the school to fund her school place. The fact the Council agreed a personal budget for tuition indicates it was satisfied that the school was no longer available and accessible to W.
63. I am persuaded that, on balance of probabilities, had the Council not been at fault in how it decided whether to arrange alternative provision for W, it would have put some in place by early November 2023. At that point, there was sufficient information available to the Council to show that even if were to begin working with W’s school to help W reintegrate, it would have been unsuccessful, at least in the short-term. Miss X, and later W’s school were able to fund a small amount of weekly tuition. This reduced the impact of the fault on W, but nonetheless she went without a suitable education for just over two terms. The fault also meant W did not receive the full special educational provision in her EHC Plan over those two terms. I am satisfied that W would have been able to engage with a substantial package of alternative provision, given she was able to engage with the tuition consistently and over a long period of time.

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Action

64. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Miss X for the injustice she experienced because of the fault set out in the decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Miss X £400 in recognition of her injustice, including the impact of not being able to appeal to the SEND Tribunal.
3. Pay Miss X £3150 in recognition of the impact of the lost education and special educational provision on W. This amounts to £1400 per term, in line with the Ombudsman’s guidance on remedies and taking into account factors including W’s age, ability to engage with provision and the tuition she did receive.
65. Within two months of the date of my final decision the Council will review the systems it has in place to:
• Ensure it seeks and obtains the information requested by its Special Educational Needs Decision-Making Group so that the Council can complete amendments to a child’s EHC Plan in the statutory timescales.
• Ensure it properly considers how it can work with schools to help them reintegrate children back into education when they have stopped attending and will otherwise require alternative provision.
66. The Council will identify where it needs to make improvements to its systems so that the faults identified in this decision do not occur again. It will provide the Ombudsman with details of improvements it has identified and when it will complete those actions by.
67. The Council will provide us with evidence it has complied with the above actions.

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Decision

68. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman