Summary: Mrs X complained the Council failed to provide her son, Y, with suitable education and support during the 2023/24 academic year. We found the Council was at fault for not arranging alternative provision when Y stopped attending school in January 2024, and for delays in issuing the outcome of his annual review and responding to correspondence. This meant Y missed education for around a term and a half at a critical stage, and Mrs X experienced avoidable frustration and uncertainty. The Council has agreed to our recommendations.

The complaint

1. Mrs X complains the Council failed to provide their son, Y, with a suitable full-time education during the 2023/24 academic year. Mrs X says the Council did not recognise or respond to Y’s changing needs after moving to a new school in September 2023, failed to act following an emergency EHCP review in January 2024, and did not communicate appropriately. Mrs X says the lack of educational provision has caused Y to disengage from learning, impacted his mental health and wellbeing, and significantly affected family life. Mrs X would like the Council to be held accountable and to provide a clear plan for how it will re-engage Y in education and meet his needs going forward, and to ensure staff fully understand the impact of their decisions on young people and their families.

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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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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council were offered an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health, and Care (EHC) Plans

8. 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.
9. 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)  

Alternative provision of education

10. 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.
11. 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)
12. 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))
13. 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)
14. 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
15. 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;
• consider (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.
16. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
17. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence.
18. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Delivery of special educational provision

19. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
20. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
21. It is inappropriate for the council to seek to delegate to the school the responsibility for ensuring that the requirements of a child’s EHC Plan are delivered. The statutory responsibility for securing the special educational provision specified in the EHC Plan rests with the council, not the school. It is for the council to prove that it is doing all it can to meet its legal duty to secure for a child the special educational provision to which he is entitled. (R (on the application of HXN) v Redbridge London Borough Council [2024] EWHC 443 (Admin))

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What happened

Background

22. Y has special educational needs and an Education, Health and Care (EHC) plan. His needs include autism, ADHD traits and anxiety.
23. In the summer of 2023, the Council issued a final EHCP for Y. This named a mainstream secondary school (School A) as his placement from the start of the following academic year.

Events thereafter

24. At the beginning of the autumn term 2023, Y started at School A. By late November 2023, Mrs X had contacted the Council to say Y was struggling to cope in the school environment and was not attending regularly.
25. At the beginning of January 2024, an emergency annual review was held at School A. The meeting was attended by the family, the Council and the school. The school explained it had concerns about Y’s behaviour and attendance, and that it had requested additional professional advice. Y’s parents suggested amendments to the plan, including one-to-one support.
26. Later in January 2024 Y stopped attending School A. His overall attendance for the year between September and April was recorded at under 20%.
27. In mid-February 2024 School A sent the annual review paperwork to the Council. The Council logged this later that month and in April confirmed it would amend Y’s plan. A final amended plan was issued in May 2024.
28. Between January and April 2024, Mrs X contacted the Council on several occasions about Y’s lack of education and to ask about the outcome of the review.
29. In mid-March 2024, Mrs X made a formal complaint to the Council. She said Y had not received suitable education since leaving School A, that she had not been told the outcome of the January review, and that communication from the allocated case officer was poor. In April she sent further correspondence saying the amended plan she had received did not reflect Y’s needs, that she had not been told whether the Council’s panel had considered the case, and that the lack of support was affecting Y’s wellbeing.
30. The Council sent its Stage 1 response in early October 2024. It upheld Mrs X’s complaint about the delay in issuing the annual review decision and about communication, and it apologised. It did not uphold her complaint about the decision not to commission a new educational psychology assessment, saying the advice available from June 2023 remained sufficient. The Council said suitable provision continued to be available to Y at School A.
31. Mrs X then asked for her complaint to be escalated. In her Stage 2 request she said the delay in receiving a response was excessive and that Y had been without suitable education for almost a year. The Council acknowledged the delay, apologised, and offered a financial remedy for time and trouble.
32. Y did not return to school for the remainder of the 2023/24 academic year.
33. In September 2024, Y was placed on roll at a College B. He began attending in October on a reduced timetable.

Enquiries to the Council

34. As part of my investigation, I made enquiries to the Council. The Council told me Y’s attendance at School A between September 2023 and April 2024 was 19.7%. It said the school remained open to him and continued to provide the full curriculum and the provision set out in his EHC plan, alongside a range of adjustments such as individualised support, pastoral input, timetable changes and mentoring. The Council said Y’s absences were unauthorised and, as it had not received medical evidence to show he was unable to attend, it did not consider its duty to arrange alternative provision under section 19 of the Education Act 1996 was engaged.
35. The Council confirmed an emergency annual review took place in January 2024. It received the paperwork from the school in February, and in April it issued a decision to amend Y’s plan. A final amended plan was issued in May 2024. The Council accepts this decision was not issued within four weeks of the meeting and has apologised. It said it considered whether a new educational psychology assessment was required but decided the advice from June 2023 remained current and sufficient.
36. The Council acknowledged there were delays in responding to correspondence from Mrs X, including an email in March 2024 about Y’s educational options, and it apologised for the frustration this caused. It also said that after June 2024 Y was no longer of compulsory school age, but it continued to review his EHC plan and sought to arrange new provision. From the autumn Y attended College B part-time, although his attendance remained low. In early 2025 the Council commissioned an occupational therapy assessment and agreed to fund targeted tuition in core subjects.
37. The Council said it considers it met its duty to secure the provision in Y’s EHC plan. It accepted there were delays in communication and in issuing the review decision, and it has offered a financial remedy of £200 for this.

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Analysis

Provision of education (Section 19 duty)

38. Section 19 of the Education Act 1996 requires Councils to arrange suitable education for children of compulsory school age who, because of exclusion, illness or otherwise, would not receive suitable education without such arrangements. The courts have confirmed this is a proactive duty. It arises once a Council knows (or ought reasonably to know) that a child is not receiving suitable education. It does not depend on parental cooperation or on whether absences are authorised. It also does not require medical evidence where the education offered is, in practice, inaccessible to the child.
39. The Council’s position was that suitable education remained “available” at School A and that Y’s absence was unauthorised. In doing so, it effectively concluded that the education was accessible to Y. We acknowledge this was a matter of professional judgement, and the Council was entitled to consider the evidence before it.
40. However, the test under Section 19 is not whether education remains theoretically available, but whether, in practice, the child can reasonably access it. By February 2024, Y’s attendance had collapsed despite the school’s adjustments and attempts to reintegrate him. On balance, this indicates the education was not effectively accessible to Y, and so the Council’s duty under Section 19 was engaged.
41. In Y’s case, he had stopped attending School A by late January 2024 and did not return that academic year. Despite the adjustments described by the Council, they were not effective in enabling him to access learning. Without alternative arrangements, Y therefore received little or no education for the remainder of compulsory school age. This demonstrates that the test under Section 19 was met, and the duty arose.
42. The off-site package developed in April 2024 came too late to prevent this gap. By that point Y had already missed around two months of education.
43. I therefore find the Council at fault for failing to act on its Section 19 duty from January 2024 and the end of June 2024. This failure meant Y missed several months of suitable education at the end of compulsory school age. It also contributed to the stress and uncertainty experienced by Mrs X during this period.

Securing special educational provision (Section 42 duty)

44. Section 42 of the Children and Families Act 2014 places an absolute duty on councils to secure the special educational provision set out in Section F of a child’s Education, Health and Care (EHC) plan. This is not a “best endeavours” duty; if the provision is not delivered, the council is at fault, even if delivery depends on another body. The duty remains in place as long as the EHC plan in force.
45. The Council says School A was able to deliver the provision specified in Y’s plan throughout 2023/24, and that support remained available whenever he attended. It points to adjustments including pastoral input, individualised support, curriculum differentiation, and timetable flexibility. The Council argues that Y’s absence reflected non-engagement by him and his parents, not a failure to secure provision.
46. However, the evidence shows Y stopped attending School A by late January 2024 and did not return that year. At that point, even if provision was technically “available” on site, it was not in practice being delivered. The Council’s duty under Section 42 is not discharged by simply ensuring provision exists in theory; it must be secured in fact.
47. Once Y was no longer accessing School A, the Council needed either to arrange for Section F provision to be delivered through alternative means or to consider amending the plan. It did neither until it issued an amended plan in May 2024, and there is no evidence that equivalent provision was put in place in the meantime.
48. I find the Council at fault for failing to secure the special educational provision set out in Y’s EHC plan from late January 2024 onwards. The duty under Section 42 continued for as long as the plan remained in force. During this period, the provision in Section F was not being delivered in practice. The Council says it cannot force a child to participate, and that provision remained available. While this is correct in principle, the duty under Section 42 is not met by simply offering or signposting provision that the Council knows is not being accessed. If provision is not being delivered, the Council must take proactive steps to secure it through alternative means or amend the plan. This fault contributed to Y’s educational disadvantage and added to the frustration and uncertainty experienced by Mrs X at an already difficult time.

Annual review and decision making

49. Regulation 20 of the Special Educational Needs and Disability Regulations 2014 and the SEND Code of Practice require councils to notify parents within four weeks of a review meeting whether they will maintain, amend, or cease a plan. This requirement applies equally to interim or emergency reviews. Delays in issuing this decision create uncertainty for families and can prevent timely access to support.
50. An emergency annual review was held at School A in January 2024. The school submitted the paperwork to the Council in mid-February. The Council did not issue its decision until April, when it said it would amend the plan. The final amended plan was issued in May.
51. The Council accepts the decision was not issued within four weeks of the January meeting and has apologised for this delay. It explained the school was late in submitting the paperwork, and there were also internal processing delays.
52. While the Council is correct that part of the delay was due to the school, it remains responsible for ensuring the statutory timescale is met. Families are entitled to a clear and prompt decision, and delay leaves them without certainty about their child’s support or the opportunity to appeal. In this case, Mrs X was left for several months without clarity on the outcome of the review, at a time when Y was already out of school and disengaged.
53. I find the Council at fault for failing to issue its decision within four weeks of the January 2024 review. This was a breach of the statutory requirement. The delay caused avoidable frustration and uncertainty to Mrs X and prolonged the period in which Y’s needs remained unresolved. It also delayed her right of appeal to the SEND Tribunal.

Educational Psychology assessment and reassessment

54. The Children and Families Act 2014 allows councils to carry out a reassessment of a child’s needs if it considers this necessary, or if a parent or school requests it and the council agrees. A reassessment may be required where a child’s needs have changed significantly, or where existing advice no longer reflects their current situation. Councils must ensure EHC plans remain accurate and up to date.
55. At the January 2024 review, the school suggested further assessment, including updated Educational Psychology (EP) input, given the change in Y’s setting and difficulties with attendance and behaviour.
56. The Council decided not to commission new EP advice, explaining that statutory advice had been obtained in June 2023 and was therefore still current. It said no significant new needs had been identified that would justify reassessment.
57. It is not the Ombudsman’s role to substitute our view for the Council’s professional judgement about whether updated advice was strictly necessary. We note that Mrs X may disagree with the Council’s decision, but once the amended plan was issued in May 2024, she had the right to appeal its contents to the SEND Tribunal, including the absence of updated EP advice.
58. I do not therefore find fault in the Council’s decision not to seek further EP advice. However, as set out in paragraph 37, the delay in issuing its review decision meant Mrs X could not exercise that right of appeal until several months after the January 2024 review.

Communication and complaint handling

59. Councils are expected to communicate clearly and promptly with families, particularly where children with EHC plans are out of school or their placement is breaking down. Failure to respond causes unnecessary stress and undermines confidence in the support system.
60. Mrs X raised concerns repeatedly between January and March 2024. In mid-March she emailed the Council about Y’s educational options but did not receive a timely reply. She also complained about poor communication from the allocated officer and their manager.
61. In its enquiry response, the Council accepted there were delays in responding, including to the March 2024 email, and apologised. It acknowledged this caused frustration and uncertainty for Mrs X.
62. The Council also delayed in issuing its Stage 1 complaint response. Although Mrs X complained formally in March 2024, the Council did not send its written response until October 2024. This was well outside its published complaints timescales and far longer than the 12 weeks the Ombudsman considers reasonable for complex cases.
63. At Stage 2, the Council recognised this delay and offered a financial remedy for time and trouble. While this was appropriate, the failure to provide a timely response at Stage 1 meant Mrs X was left without resolution for several months.
64. I find the Council at fault for its delays in responding to Mrs X’s correspondence and in handling her complaint. This fault caused additional stress and uncertainty during an already difficult period.

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Agreed action

65. Our published guidance on remedies says that where fault has resulted in loss of educational provision, we will usually recommend a payment of between £900 and £2,400 per school term. The figure should reflect the severity of the child’s needs, the amount and suitability of any provision received, and whether the period was a significant stage in the child’s education. In this case, Y was without suitable education from late January until the end of June 2024, approximately one and a half terms, at the end of compulsory school age when he should have been preparing for GCSEs.
66. Taking account of the lack of any effective alternative provision during this time, the seriousness of the impact described, and that this was a critical period in Y’s education, a remedy at the mid to upper end of the range is appropriate. I therefore recommend £2,700 for Y’s missed education. In addition, consistent with our guidance, a further payment of £250 is appropriate to recognise the distress and time and trouble caused to Mrs X by the Council’s communication delays and complaint handling.
67. To remedy the injustice identified in this case, the Council will take the following action, in line with the Ombudsman’s published Guidance on Remedies:
1. Send Mrs X a written apology for the identified faults, namely the failure to arrange alternative education under Section 19 between late January and June 2024, the delay in issuing the annual review decision, and poor communication.
2. Pay Mrs X £2,700 to reflect Y’s loss of education between late January and June 2024. This period covered the final months of compulsory school age and a key stage where Y should have been preparing for GCSEs.
3. Review its procedures for identifying children with EHC plans who are not attending school, to ensure Section 19 duties are considered proactively and without reliance on medical evidence alone. This review should include a clear process for triangulating attendance concerns between schools, SEND services, and attendance officers.
4. Remind staff of the statutory requirement to issue a decision within four weeks of annual review meetings, including emergency reviews.
68. The Council will complete action points a and b within one month of the Ombudsman’s final decision and action points c and d within three months of the Ombudsman’s final decision. The Council will provide evidence to the Ombudsman that it has complied with these actions.

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Final decision

69. We found the Council was at fault for not arranging alternative provision when Y stopped attending school in January 2024, and for delays in issuing the outcome of his annual review and responding to correspondence. This meant Y missed education for around a term and a half at a critical stage, and Mrs X experienced avoidable frustration and uncertainty. The Council has agreed to our recommendations.

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Investigator's decision on behalf of the Ombudsman