Summary: Mrs X complained about delays by the Council in providing her child, Y, with a suitable education when they could not attend school. We found the Council at fault for failing to provide Y with a suitable education and for not meeting legal deadlines in the Education, Health and Care Plan review process. The Council has agreed to apologise and make a payment to Mrs X to recognise her distress. It has also agreed to make improvements to its service to prevent the same faults happening to others.

The complaint

1. Mrs X complained the Council did not provide her child, Y, with a suitable education after they could no longer attend school. She said she asked it to consider an Education Otherwise Than At School (EOTAS) package, but the Council repeatedly failed to formally respond to her request for this, which left her without a right of appeal. She also complained the Council’s communication with her about these issues was poor.
2. Mrs X said the Council’s actions left Y without a suitable education and meant she had to spend her own money to provide Y with education, which has caused stress and financial hardship for her.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)
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. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. (section 26A or 34C, Local Government Act 1974)
8. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
9. 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.
10. 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(1), as amended)
11. 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

12. Mrs X complained Y did not receive a suitable education from October 2023 until November 2024. Mrs X complained to us about this in November 2024. At this point, she had not formally complained to the Council and so we asked the Council to consider her complaint through its complaints process before we would investigate it. The Council sent its final response to Mrs X in April 2025.
13. I have investigated Mrs X’s complaint from October 2023 until November 2024. This is because I am satisfied Mrs X likely did not become aware there was a delay by the Council until November 2023, and she first complained to us in November 2024. Therefore, she first complained to us within 12 months of becoming aware of the issue and so the complaint is in time. I have not investigated any events after November 2024, which was when Mrs X complained to us.
14. Mrs X complained about the content of Y’s final Education, Health and Care (EHC) Plans issued in November 2024. As explained in paragraph six, we do not investigate complaints when it would be reasonable for someone to appeal to a tribunal about the same matter. Mrs X could reasonably have appealed to the Special Educational Needs and Disability Tribunal (the Tribunal) about the content of Y’s EHC Plans. This tribunal considers appeals against council decisions regarding special educational needs. Therefore, I have not investigated this part of Mrs X’s complaint.
15. My investigation has considered how any fault by the Council caused a personal injustice to Mrs X.
16. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. We focus on general themes and issues, rather than providing a response to every individual issue raised in a complaint.

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How I considered this complaint

17. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
18. Mrs X and the Council had an opportunity to comment on my draft decisions. I considered comments before making a final decision.

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What I found

Law and guidance

Alternative education provision

19. 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.
20. This applies to all children of compulsory school age living in the council’s area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
21. If a child has been permanently excluded from school, the council must arrange alternative education from the sixth school day following the exclusion. (Statutory guidance ‘Alternative Provision’ January 2013)
22. 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

EHC plans and reviews

23. A child or young person with Special Educational Needs (SEN) 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.
24. 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, even if they are not attending a school. (Children and Families Act 2014, section 42)
25. 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 cease to maintain 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 paragraph 9.176) 
26. 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). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Education other than at school

27. If school or college is not appropriate for the child or young person with an EHC Plan (for either all or part of their education), the council can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school, college or early years setting. This is known as ‘education otherwise than at school’ (EOTAS). There is a right of appeal about any decision to name (or not name) EOTAS. 
28. Before deciding to provide EOTAS, a council must consider factors such as:

• the child’s background and medical history,
• the child’s particular educational needs,
• what a school could provide,
• the comparative costs between schools and EOTAS, and
• the child’s and their family’s wishes. (TM v Hounslow [2009] EWCA Civ 859)

What happened

Y’s education

29. In October 2023 Y was permanently excluded from school. Mrs X began providing Y with tuition at home and paid for equipment, online learning platforms and tuition. The Council became aware of Y’s exclusion in October 2023.
30. In January 2024 the Council contacted Mrs X to discuss what education it needed to put in place for Y as they were not attending school. Mrs X explained she didn’t think Y would manage to return to school and asked the Council to provide Y with EOTAS.
31. In March 2024 the Council held a review of Y’s EHC Plan. In the review meeting, the Council offered to put tutoring in place for Y while it tried to find another school for them. Mrs X declined this offer because she didn’t feel it was suitable for Y. She asked for EOTAS for Y again. The Council explained Mrs X would need to complete specific forms and gather certain information to make a formal request for EOTAS.
32. Over the next few months, Mrs X continued to ask the Council to provide Y with EOTAS. The Council explained to Mrs X that it would consider a formal request for EOTAS with specific supporting information. It then told her it would start providing Y with a suitable education, because what Mrs X was currently providing wasn’t enough education for Y.
33. In June 2024 the Council started providing Y with around six hours a week of tutoring, on top of what Mrs X was already paying for.
34. Mrs X then made a written request for EOTAS, but the Council said there was still some information missing. It said she would need to create a timetable of education for Y which, based on evidence about Y’s needs, had to be at least 25 hours per week. Mrs X made the formal request for EOTAS in September 2024, with the supporting information the Council asked for.
35. In November 2024 the Council sent Mrs X Y’s final amended EHC Plan which named a school because the Council decided Y did not need EOTAS and could attend a school. Mrs X complained about the school named in Y’s EHC Plan. The Council then sent another final amended EHC Plan later in November 2024 which said Y would receive EOTAS.
36. Y’s EOTAS package started in November 2024.

Mrs X’s complaint

37. Mrs X complained to us about the Council’s actions. We asked the Council to consider her complaint before we would investigate.
38. The Council responded to Mrs X’s complaint and accepted it delayed providing Y with alternative education provision and deciding if it would provide Y with EOTAS. It also accepted its communication was poor.
39. The Council apologised to Mrs X and agreed to secure an EOTAS package for Y. It offered Mrs X a symbolic remedy for the distress caused by the loss of education for Y, its poor communication and delays in complaint handling.
40. Mrs X felt the Council’s financial remedy was not enough and complained to us.

Analysis

Annual review

41. The Council should have sent the final amended EHC Plan within 12 weeks of the annual review meeting. It did not send it until nine months after the review meeting. This was a delay of around five months, which was fault by the Council.
42. The delay in sending the final EHC Plan caused Mrs X uncertainty as she did not know the Council’s decision about Y’s EOTAS.
43. When a council sends a parent a final EHC Plan, this gives them a right to appeal the contents of the Plan to the Tribunal if they disagree with the Plan. Therefore, the delay in sending the final EHC Plan also delayed Mrs X’s right of appeal against the Council’s original decision to not provide Y with EOTAS. However, this injustice to Mrs X was limited because the Council sent a new final amended EHC Plan shortly after which included EOTAS and so Mrs X did not need to use her right of appeal.
44. As part of our investigation we asked the Council to provide minutes of the annual review meeting held in March 2024. The Council told us it did not have these.
45. Failure to keep accurate records was fault by the Council. As suggested in our guidance note Principles of Good Administrative Practice keeping proper and correct records ensures councils are open and accountable.
46. The Council’s fault caused injustice to Mrs X as we could not see evidence of what was discussed in the annual review meeting when investigating her complaint.

EOTAS request

47. The Council’s case notes show Mrs X asked the Council for EOTAS in February, March, and June 2024, before making a request in the Council’s preferred format in September 2024.
48. The Council explained to Mrs X to ask for EOTAS she had to send it a proposed timetable with 25 hours a week of education and special educational support for Y, and explain how this timetable would link to the outcomes in their EHC Plan. The timetable needed to show who would provide the education and what it would cost. The Council did not consider Mrs X’s request until she sent it all the information it asked her for.
49. The Council decided it would not provide Y with EOTAS in November 2024. However, it then changed its decision later in November 2024 and said it would provide Y with EOTAS.
50. Case law states when considering EOTAS, councils must ask whether it would be “inappropriate” for the child’s provision to be made in a school. To answer this question, councils must consider factors such as the child’s views, needs, what a school could provide and comparable costs between a school and other providers.
51. While the information the Council asked Mrs X to provide was relevant to the question at hand, the Council asked for more information than was necessary for it to make this decision. For example, it likely did not need to see a fully-costed 25-hour weekly timetable of alternative provision to decide if it was inappropriate for Y to receive education in a school. There is no law or guidance which says parents must provide all the information the Council sought from Mrs X to ask for EOTAS.
52. When councils ask for onerous levels of information from individuals, this practice can be viewed as a form of gatekeeping, potentially creating barriers for individuals seeking access to services. It may prevent individuals from asking the Council for EOTAS because they could find the process too difficult. Emails between Mrs X and the Council show she was confused by what information the Council needed from her.
53. It was fault for the Council to refuse to consider Mrs X’s request for EOTAS until she sent all the information it asked for. This was an overly rigid approach which required Mrs X to present information that would be difficult and time-consuming for a parent to gather. There was likely information available to the Council about Y’s needs, views and history from their EHC Plan annual review in March 2024 which it could have used to consider if Y needed EOTAS. Once the Council decided if Y needed EOTAS, it then could have discussed what a suitable package of education would be.
54. Additionally, Mrs X asked the Council for EOTAS in the EHC Plan annual review meeting in March 2024. As explained previously, there are legal deadlines for councils after an annual review meeting. If a parent or young person asks for EOTAS in the meeting, this does not affect a council’s duty to meet the legal timeframes for reviewing and amending the EHC Plan. In Y’s case, the Council should have sent an amended final EHC Plan by June 2024 but it did not do this until November 2024, which was fault.
55. This fault caused injustice for Mrs X because she experienced uncertainty until the Council sent an amended final EHC Pla. It also caused her frustration because she had to gather a lot of information to ask for EOTAS.

Alternative education provision

56. The Council became aware Y was no longer attending school in October 2023. The Council should have arranged alternative education to start six days after the school excluded Y, but it did not do this.
57. The Council failed to share information internally about Y’s exclusion and this was why the Council did not begin to consider its duty to arrange alternative provision for Y until February 2024. This delay was fault and the Council has already accepted this.
58. The Council asked Mrs X to confirm if it she wanted it to secure alternative education for Y, or if she would like to explore other options instead. As explained in our focus report Out of school, out of sight? a council must decide whether alternative education is necessary, not the school or parents. In its complaint response the Council told Mrs X that, although she declined its offer of exploring alternative education for Y, it accepted it was the duty of the Council to decide if Y needed alternative education, not Mrs X. Therefore, the Council has already accepted fault on this point.
59. This fault caused injustice to Mrs X because she then had to arrange and pay for tuition for Y, when it should have been paid for by the Council.
60. In June 2024 the Council decided it would provide Y with around six hours a week of tuition. It said the four hours a week of tuition Mrs X had already arranged was not enough.
61. We asked the Council how it then decided the alternative education it secured for Y was suitable for them. It told us it was satisfied that the tuition was sufficient by reviewing the provision against statutory guidance and Y’s EHC Plan outcomes. It said it ensured the hours of tuition met the minimum expectations for alternative provision.
62. However, around the same time the Council told Mrs X she needed to present a timetable with 25 hours a week of education for Y to request EOTAS. We asked the Council why it asked Mrs X for a 25-hour weekly timetable and it said it said Y’s EHC Plan showed they would need 25 hours a week of education for it to be sufficient.
63. Although there is no legal definition of what a full-time education is, there was inconsistency in the Council’s decision making in Y’s case. Law and guidance explains what councils should consider when deciding if education provision is suitable to meet a child’s needs. In Y’s case, the Council said this was 10 hours per week of tuition, but 25 hours per week of EOTAS. Although guidance says the hours of 1:1 tuition may be less than other forms of education, because the 1:1 tuition is more intense, the two figures are still very different from each other.
64. This large discrepancy shows that, on-balance, there was likely fault in the Council’s decision making about what a suitable education for Y was. This fault caused injustice to Mrs X because it caused her uncertainty about how much education Y needed.

Communication and complaint handling

65. The Council accepted there was fault in its communication and complaint handling and offered Mrs X an apology and £250 to remedy the injustice caused by these.
66. The Council’s apology and remedy are in line with our guidance on remedies and therefore I have not investigated these faults further, because it is unlikely we would achieve anything further.

Remedy

67. Our guidance on remedies explains that where we find a council’s fault caused a child to miss out on a suitable education, we may consider reimbursing the parent’s costs for education materials or tuition, if we decide those costs were reasonable and as a result of the Council’s fault.
68. When deciding if a parent’s cost were reasonable, we take different factors into consideration. For example, where the council offered to secure alternative provision, but the parent declined, we may say that the parent’s costs were not reasonable for this period as they could have accepted the council’s offer instead of paying for provision themselves.
69. I have considered Mrs X’s costs were reasonable during the following periods:

• between October 2023 and March 2024, because the Council did not offer to secure alternative provision for Y; and
• between June 2024 and July 2024, and then September 2024 and November 2024, because the Council paid for 6 hours a week of tuition for Y, despite also deciding Y would need 25 hours a week of education. Therefore, it’s likely the provision Y received during these times was not enough and so Mrs X’s top up costs were reasonable.

70. Between March 2024 and June 2024, Mrs X declined the Council’s offer of exploring alternative provision for Y and so her costs were not reasonable during that time. Additionally, it is not expected that children would need alternative provision during the summer holidays, when they would not normally be attending school, which is why I have not considered Mrs X’s costs for July and August 2024.
71. The Council also offered a symbolic payment to acknowledge the injustice caused to Mrs X and Y by Y not receiving a suitable education. Our guidance on remedies explains that symbolic payments for distress caused by loss of education provision are separate to payments to reimburse quantifiable costs of providing education. Therefore, I have considered Mrs X’s costs are separate to any symbolic payment the Council offered Y and so should also be remedied.
72. We asked Mrs X to provide evidence of her costs, such as receipts and invoices for tuition or online learning platform subscriptions. Mrs X was only able to provide evidence of some of her costs. The Council has agreed to reimburse these costs.

Service Improvements

73. Where we find fault by an organisation, we can recommend changes to improve how the organisation delivers its services to prevent the same issue happening to others.
74. In response to one of our previous investigations, the Council provided us with evidence it has made improvements to ensure it completes EHC Plan annual reviews on time. Therefore, I have not made any recommendations on this point, and we will continue to monitor the effectiveness of the Council’s actions through our casework.
75. The Council has agreed to make improvements to how it considers EOTAS requests, alternative education provision and its record keeping.

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Action

Personal remedy

76. Within one month of our final decision, the Council will:
1. apologise to Mrs X for the injustice caused to her by the failings identified during this investigation. This apology should be in accordance with our guidance for making an effective apology;
2. pay Mrs X £150.17 to reimburse her reasonable costs in providing learning materials for Y when the Council failed to provide them with suitable alternative education provision; and,
3. pay Mrs X the £250 it offered during its complaint process to acknowledge the injustice caused to her by its poor communication and complaints handling.

Service improvements

77. Within three months of our final decision, the Council will:
1. review the learning from this complaint and decide if it will review and amend its EOTAS policy to ensure it is:

• not asking parents and young people for excessive amounts of information before allowing them to request EOTAS; and
• able to complete EHC Plan annual reviews within legal time frames even if a parent or young person makes a request for EOTAS during the annual review process;
2. share our focus report Out of school, out of sight? with relevant staff who may deal with parents and schools to remind them of best practice when a child of compulsory school age is not attending school full-time;
3. review how it records its decision making when considering requests for section 19 alternative provision and identify any improvements it needs to make to that process to ensure it properly considers the requests. It will provide us with a copy of a timebound action place to make any improvements it has identified; and
4. issue a staff briefing to relevant staff to remind them they must keep a record of what was discussed in EHC Plan annual review meetings.

78. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman