Summary: Mrs X complained that the Council failed to make alternative education provision for her child and delayed in issuing an Education, Health and Care Plan for her. The Council was at fault as it did not consider if it had a duty to provide alternative education provision when Y struggled to attend school from September 2023, delayed in issuing Y’s final Education, Health and Care Plan and delayed in securing the speech and language therapy provision in the Plan. These faults caused distress and uncertainty to Mrs X and disadvantaged Y. The Council has agreed to remedy this injustice by apologising to Mrs X and making a symbolic payment of £1100 to acknowledge the distress caused to her and the disadvantage caused to Y.

The complaint

1. Mrs X complains that the Council:

1. Wrongly refused her requests for an Education, Health and Care Needs Assessment between 2021 and 2024 for her child, Y.
2. Delayed in issuing an Education, Health and Care Plan.
3. Issued an inadequate Education, Health and Care Plan which failed to name a school.
4. Failed to make alternative education provision for Y when she was unable to engage with education from September 2023 to July 2024.
5. Failed to deliver the speech and language therapy provision set out in section F of Y’s Education, Health and Care Plan.

2. Mrs X considers that as a result Y did not receive support with her special educational needs and any education for a long period of time which caused significant distress and disadvantage to her. It also had a significant impact on Y’s mental health. The faults also caused significant distress to Mrs X at a time when she was dealing with a serious family illness. The faults also meant Y did not receive respite from the distress of the family illness.

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The Ombudsman’s role and powers

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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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)
7. 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.
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 have investigated complaints b), d) and e). I do not have discretion to investigate complaints a) and c) as Mrs X appealed to the SEND Tribunal.
11. The courts have established that if someone has appealed to the SEND 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.
12. 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. I therefore cannot consider the time taken by the Council to find a school for Y as it is consequence of the Council's decision not to name a school in the Education, Health and Care (EHC) Plan. But I have investigated complaint e) as it is not connected to Mrs X’s appeal.
13. I have investigated events from September 2023 to February 2025.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. Mrs X 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

Law and guidance

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 (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. 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)
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. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for 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 is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
20. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
21. A child or young person with special educational needs may have 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. 
22. In the event a council does not oppose an appeal and it decides it is necessary for special education provision to be made for the child, it must send the finalised Plan to the child’s parent within 14 weeks of the date it notified the SEND Tribunal of its decision to concede the appeal. (Regulation 45, The Special Educational Needs and Disability Regulations 2014)
23. 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)  

What happened

24. The following is a summary of the key events relevant to my consideration of the complaint. It does not include everything that happened.
25. Mrs X’s child, Y, has special educational needs and attended a primary school. Y experienced difficulties in attending school on a full time basis for some years.
26. Mrs X said that from September 2023 Y could only attend school for approximately an hour per day and she did not receive any education. Mrs X said she contacted a school attendance officer for advice. Y completely stopped attending school from mid February 2024.
27. Mrs X made a complaint to the Council in May 2024. She said the Council had failed to make any alternative education provision for Y despite her low attendance over the last year. Mrs X said the school had also not provided any school work for Y even when she stopped attending school.
28. The Council responded to Mrs X’s complaint at stage one of its two stage complaints process. It said that the school had worked extensively Mrs X and Y to support her needs but had exhausted every avenue within their remit. The school had made referrals for support to Early Help, SENDIASS and other organisations. It noted Y had not been able to attend school for approximately 12 months but it considered the school and Council had followed the correct procedures to support Mrs X and Y.
29. Mrs X escalated her complaint to stage two. In response, the Council acknowledged that it was at faut as it should have considered its section 19 duty when Y completely stopped attending school in February 2024. Had it done so, it would have made alternative education provision for Y between February and July 2024. The Council apologised for the fault and offered a payment of £2250 to acknowledge Y’s loss of education for one and half terms. It also offered a payment of £300 to Mrs X to acknowledge the time and trouble caused to her in making the complaint and for the Council’s delay in responding to the stage two complaint. Mrs X has said she has not received these payments.
30. The Council provided home tuition for Y from mid September 2024. Y started at a specialist school in February 2025.
31. Mrs X remained unhappy with the Council’s response to her complaint as she considered the Council should have made alternative education provision from September 2023 when Y was only attending school for approximately one hour per day as she was not receiving any education. Mrs X said she told an attendance officer, whom she contacted for advice, that Y was not attending.
32. In response to my enquiries, the Council said the attendance officer gave advice to Mrs X about Y’s poor attendance and the school had referred Y to the Early Help service. There was no indication that Y was completely out of education or could not attend school without the appropriate support. The Council also noted Y’s reduced timetable ceased after a term.

Education, Health and Care Plan

33. In December 2023 Mrs X applied for an EHC needs assessment for Y. The Council refused Mrs X’s request. Mrs X appealed against this decision to the Tribunal. In March 2024 the Council conceded the appeal and agreed to carry out the needs assessment.
34. In mid June 2024 the Council notified Mrs X that it would issue a EHC Plan for Y. The Council issued the draft EHC Plan in early July 2024. It then issued a further draft in early August 2024 and the final EHC Plan in mid September 2024. The Council did not name a specific school on the EHC Plan so Mrs X appealed to the Tribunal.
35. Section F of Y’s EHC Plan states that she should receive one hour of direct speech and language therapy every week. Mrs X said the Council has not made this provision. As a result, Y’s speech has regressed.
36. In response to my enquiries the Council said:

• It failed to deliver the speech and language therapy provision set out in Y’s EHC Plan.
• It took 11 weeks longer than it should have done to issue Y’s final EHC Plan. This was due to issuing a further draft plan and delays caused by officers looking for a specialist placement.
• It took an average of 20-30 weeks to issue final EHC Plans in 2024. The Council acknowledged it has delayed in completing the needs assessment process and finalising EHC Plans. This was due to a high turnover of staff.
• It has taken significant steps to address the delays including restructuring the Special Educational Needs Assessment and Review Service (SENAR) to improve case management, prioritising the recruitment of permanent staff and enhancing training with a permanent Quality and Improvement Team.

Analysis

Alternative Education provision

37. In response to Mrs X’s complaint, the Council acknowledged that it should have considered whether it had a Section 19 duty to Y when she stopped attending school in mid February 2024. It concluded it should have provided alternative education provision between February and July 2024. This was fault.
38. On balance, the Council was also at fault for not considering its section 19 duty from September 2023 when Mrs X raised Y was only attending school for a short period each day. The Council said there was no indication that Y was completely out of education or could not attend without the appropriate support. But there is no evidence to show the Council checked what support Y was receiving or whether the education provided was suitable or accessible to her. So, the Council failed to properly consider if it had a section 19 duty to provide alternative education provision to Y. This was fault.
39. There is also no evidence to show the Council reviewed Y’s reduced timetable and discussed with the school why she could not attend full time. This was fault. The Council said Y’s reduced timetable was not prolonged and ceased after a term. But Y’s reduced timetable ceased in February 2024 as she was unable to attend school at all.
40. I am mindful that attendance officers did not have responsibility for considering if the Council had a section 19 duty. But the officer was aware Y was not accessing full time education on a full time basis. So, they should have considered whether Y’s circumstances warranted communication with the relevant team to determine if the Council’s section 19 duty was triggered. The failure to do so was fault.
41. We have recently made recommendations to the Council to review its communication process between departments to ensure relevant officers are informed when a child is not attending school to enable the Council to consider its section 19 duty and to remind officers of the section 19 duty. It is therefore not necessary to recommend further service improvements in this area.
42. I cannot know, even on balance, if the Council would have made alternative education provision for Y between September 2023 and February 2024 if it had considered its section 19 duty and reviewed Y’s part time timetable. But the fault causes uncertainty to Mrs X as she cannot know if the Council would have provided alternative education provision to Y. The Council should remedy this injustice by making a symbolic payment of £300 to Mrs X to acknowledge the uncertainty caused.
43. The Council offered a payment of £2250 to Mrs X to acknowledge that Y lost education provision for one and half terms between February and July 2024. This payment is an appropriate and proportionate remedy and it is in accordance with our Guidance on remedies. Mrs X said she had not received this payment so the Council should ensure the payment is made to her without delay.

Education, Health and Care Plan

44. The Council conceded Mrs X’s appeal so it should have issued the final EHC Plan within 14 weeks of notifying the Tribunal of its decision. It did not issue the final EHC Plan until 18 September 2024 which was a delay of 12 weeks. This was fault. The delay caused distress to Mrs X and also delayed her right of appeal. The Council should make a symbolic payment of £300 to Mrs X to acknowledge the distress caused.
45. The Council has acknowledged there are systemic delays in completing the EHC needs assessment and producing the final Plans. I welcome the action it is taking but I recommend a service improvement to ensure progress is sustained.
46. The Council has acknowledged it failed to deliver the speech and language therapy per week which was specified in section F of Y’s EHC Plan. The Council therefore failed to meet its duty to secure the special educational need provision. This was fault. I understand Y started to receive speech and language therapy when she started her school placement in mid February 2025. I therefore consider the Council’s delay in securing the speech and language therapy to be five months.
47. Mrs X said the lack of speech and language therapy caused Y’s speech to regress. I therefore consider the failure to secure the speech and language therapy has significantly disadvantaged Y. The Council should remedy this injustice by making a symbolic payment of £500 to Mrs X to acknowledge the disadvantage caused to Y.
48. The Council’s complaints procedure provides it should respond to stage two complaints within 20 working days. The Council took two months to respond which was fault. This will have caused frustration to Mrs X. The Council has adequately remedied the injustice to Mrs X as it apologised for the delay and made a payment of £300 to her which included the frustration caused by its delay. It is therefore not necessary to recommend a further remedy for the delay.

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Action

49. The Council will:
1. Send a written apology to Mrs X for the distress and uncertainty caused to her and the disadvantage caused to Y by the Council’s failure to consider its section 19 duty between September 2023 and mid February 2024, delay in issuing Y’s final Education, Health and Care Plan and its delay in securing the speech and language therapy provision in Y’s Education, Health and Care Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Make a symbolic payment of £300 to Mrs X to acknowledge the uncertainty caused by its failure to consider its section 19 duty between September 2023 and mid February 2024.
3. Make a symbolic payment of £300 to Mrs X for the distress caused by the Council’s delay in issuing Y’s final Education, Health and Care Plan.
4. Make a symbolic payment of £500 to Mrs X to acknowledge the significant disadvantage caused to Y by the Council’s delay in securing the speech and language therapy provision in Y’s Education, Health and Care Plan.
5. Draw up an action plan, with timescales, setting out the action the Council will take to ensure it carries out the Education, Health and Care Plan process in accordance with the statutory timescales. This is to ensure the Council issues final Education, Health and Care Plans within the statutory timescales.
6. By training or other means, remind officers of the Council’s duty to secure the special educational needs provision set out in an Education, Health and Care Plan from the date the final Plan is issued. This is to ensure the delays in delivering provision that occurred in Y’s case do not recur.
7. Provide evidence to show the Council has made the payment of £2250 and £300 to Mrs X to acknowledge Y’s lost education provision for one and half terms between February and July 2024 and the distress to Mrs X.
50. The Council should take the action at a) to d) and g) within one month and the action at e) and f) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Decision

I have completed my investigation and uphold Mrs X’s complaint. I have found fault causing injustice and the Council has agreed to the recommendations to remedy Mrs X and Y’s injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman