Summary: Mrs X complained the Council failed to provide suitable education for her child since October 2024. Mrs X also complained the Council failed to secure the full educational provision set out in her child’s Education, Health and Care Plan. We found fault with the Council delaying for eight weeks in providing Alternative Provision of education for Mrs X’s child. We also found fault with the Council delaying for eight weeks outside the statutory timescales in producing Mrs X’s child’s Education, Health and Care Plan. When the Council produced the Education, Health and Care Plan it failed to ensure the full provision was delivered for Mrs X’s child. We also found fault with the Council’s delays in handling Mrs X’s complaints. The Council agreed to apologise to Mrs X and pays her a total of £1,950 for the impact its fault had on Mrs X and her child.

The complaint

1. Mrs X complained the Council failed to provide suitable education for her child since October 2024.
2. Mrs X also complained the Council failed to secure the full educational provision set out in her child’s Education, Health and Care Plan.

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The Ombudsman’s role and powers

3. 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).
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
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. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. 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)
7. 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

8. I have investigated Mrs X complaint about any failure to provide suitable education and both production and delivery of her child’s EHC Plan.
9. I have not investigated the situation surrounding Mrs X’s child’s suspension from school. This is a matter for the school and not one the Ombudsman can investigate.
10. The Ombudsman can only normally investigate complaints which the Council has had opportunity to respond to. The Council provided its Stage 2 complaint response on 12 March 2025 marking a normal end point of my investigation. However, given the evidence available and the agreement of the Council, I have ended my investigation from May 2025.
11. Any issues since May 2025, would be the subject of a new complaint with the Council first.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council had an opportunity to comment on my draft decision before I made my final decision.

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What I found

EHC Plans

14. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. 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. 
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).  

16. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
17. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Alternative provision of education

18. 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.
19. 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)
20. 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))
21. 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)
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
23. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable Alternative Provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

24. 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.
25. 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.
26. 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.

Council complaints policy

27. The Council operates a two stage complaints process.
28. The Council’s policy says at Stage 1 it will acknowledge a complaint within five working days and provide a full response within 10 working days of issuing the acknowledgement. The Council’s policy says where complaint issues are more complex it will aim to respond within 20 working days of the acknowledgement.
29. If a person is dissatisfied with the Stage 1 complaint response, they can request consideration of their complaint at Stage 2. The Council says if there are grounds for further investigation it will tell a person an expected complaint response timescale. Otherwise, the Council will direct a person to the Local Government and Social Care Ombudsman.

What happened

30. In this decision statement, I have not detailed every event or every piece of information because of the volume of information available. However, I have considered all pieces of information. The below chronology includes key events in this case and does not provide details of everything that happened.
31. Mrs X’s child, who I shall refer to as Y, reached compulsory school age in September 2023 and began to attend School 1.
32. In May 2024, School 1 temporarily suspended Y.
33. Mrs X made a formal complaint to the Council on 17 May 2024 about School 1 and the support in place.
34. The Council liaised with School 1 and decided suitable support was in place. The Council told Mrs X it had not received a formal request for an EHC Plan Needs Assessment.
35. On 30 May 2024, Mrs X submitted an EHC Plan Needs Assessment request to the Council and signed the parental consent form on 2 June 2024.
36. On 3 July 2024, the Council confirmed with Mrs X it would complete an EHC Plan Needs Assessment of Y.
37. The Council decided on 30 August 2024 it would be issuing an EHC Plan for Y. The Council issued the first Draft EHC Plan on 2 October 2024.
38. School 1 suspended Y on 11 October 2024 until 15 October 2024. Mrs X told the Council about this suspension on 14 October 2024 and told the Council the following day she did not want to send Y back to School 1. Y did not return to school on 16 October 2024.
39. On 21 October 2024, Mrs X made a formal request for Alternative Provision of education for Y. Mrs X also asked the Council to consult other schools to be named in Section I of Y’s EHC Plan. Mrs X specifically sought consideration of School 2. The Council put in an internal request for Alternative Provision to be considered the same day and sent a consultation letter to School 2.
40. On 5 November 2024, the Council told Mrs X it had not approved Section 19 at this time because it wanted to proceed down a pathway to try to reintegrate Y into school. Mrs X responded that she does not want Alternative Provision for Y and wants Y back in school. Mrs X told the Council she would be willing to work with School 1 if it formally rescinded Y’s suspension and provided 1:1 support for Y.
41. Mrs X and the Council liaised about School 1, School 2 and Alternative Provision of education before the Council issued a formal Stage 1 complaint response on 13 November 2024. The Council said:
• It apologised for the delay in issuing a complaint response.
• It has been in contact with School 1 since May 2024 about how to provide suitable support for Y.
• School 1 has provided its reasons for Y’s exclusion.
• It understood Y was not attending School 1 and it was working towards getting a move for Y to School 2 at Mrs X’s request.
• It is important suitable support is put in place for Y before a school placement is finalised.
42. On 16 November 2024, Mrs X confirmed with the Council she would like Alternative Provision of education for Y and does not want Y to attend School 1 again. The Council tried to discuss potential reintegration for Y into School 1 throughout November 2024 but Mrs X was consistent that she did not want Y to return to School 1.
43. Mrs X made a formal request for consideration of her complaint at Stage 2 on 24 November 2024.
44. The Council continued to liaise with School 2 about a placement for Y. School 2 was reluctant to accept Y on roll. Mrs X reiterated to the Council her wish for it to name School 2 in Y’s EHC Plan.
45. On 19 December 2024, the Council produced a Final EHC Plan for Y. The EHC Plan detailed in Section I that School 2 was Y’s school placement. The EHC Plan also detailed the Section F provision Y should receive, this included:
• Physical movement and sensory breaks throughout lessons.
• Staff to manage sensory processing difficulties and auditory processing difficulties in class.
• School staff to carry out sensory checklist and embed sensory plan as part of daily routine.
• School staff to monitor the sensory environment to reduce distraction.
• School to decide where Y is best placed in class but this should be near the front of class to reduce distraction.
• Get Occupational Therapy (OT) report for EHC Plan annual review.
• Full time adult support at all times to access mainstream Key Stage 1 classroom.
• Information presented visually and orally in the classroom.
• Precision teaching programme or something similar for developing fluency in reading.
• Reading fluency intervention (40 minutes per week).
• Support for reading and writing skills.
• Enhanced transition to next educational setting.
• Agreed calm safe space within the classroom.
• Daily session of 5-10 minutes to practice turn taking
• Evidence-based social communication intervention within school for at least 30-45 minutes per week (such as Lego therapy.)
• Twice weekly 20 minute sessions with trained facilitator/mentor for coaching and support with understanding social situations.
• 10-15 minutes learning each week in supervised situations to teach Y an awareness of danger.
46. The Council arranged to discuss with School 2 after the Christmas holiday about Y attending. The Council also noted it needed to arrange Alternative Provision of education for Y to help reintegrate them into school.
47. In January 2025, School 2 raised concerns about accepting Y. The Council suggested to Mrs X consideration of other schools. Mrs X rejected the other schools and reiterated the wish for Y to attend School 2.
48. On 13 January 2025, the Council approved Section F provision funding for Y at School 2.
49. On 21 January 2025, the Council shared a proposed package of Alternative Provision of education for Y with Mrs X. This package included:
• Three sessions with REACH for two hours each.
• One full day session at Willow Bank.
• 12 hours of support each week by a tutor at Willow Bank for 6 hours and 6 hours in school.
50. Mrs X responded positively to this Alternative Provision of education package.
51. The Council’s notes for the Alternative Provision of education package details that Y would initially only attend REACH and Willow Bank. The Council proposed for time at school building up from 1 hour each week over time to prevent Y from being overwhelmed.
52. Y started to attend Alternative Provision of education at Willow Bank and with REACH in the week starting 27 January 2025.
53. The Council discussed Y’s education with Mrs X from 28 January 2025 to 11 February 2025. During this time, Mrs X told the Council the Alternative Provision of education was going well but noted that Y had become tired at some points. The Council continued to work with School 2 to try to find solutions for provision of all Y’s Section F provision with a suitable safe space for Y as a point of difficulty.
54. On 11 February 2025, the Council held a Team Around the Child meeting for Y. During this meeting, Mrs X confirmed the Alternative Provision of education was going well but Y got tired during the longer day at Willow Bank. The Council confirmed it did not expect Y’s school to deliver all Y’s Section F EHC plan provision immediately and this should be gradually increased. A plan was put in place for Y to start attending sessions at school once School 2 had put Y on roll.
55. Mrs X contacted the Council on 11 February 2025 to ask it to consult a different school as it did not seem like School 2 wanted Y.
56. The Council arranged a meeting for 5 March 2025 to review Y’s Alternative Provision of education and progress to transitioning Y to School 2.
57. On 2 March 2025, Mrs X expressed concerns that Y was entitled to full-time education but was only getting the equivalent of 2 days each week. Mrs X said she wanted full-time Alternative Provision of education including Equine Therapy and Occupational Therapy. Mrs X told the Council she had arranged Occupational Therapy through the NHS from 5 March 2025 for one afternoon each week.
58. During the 5 March 2025 Team Around the Child meeting, Mrs X confirmed Y was doing well at REACH and Willow Bank. Mrs X expressed concerns Y was still not attending school for sessions. The Council agreed with Mrs X’s request to change Y’s tutor for a mentor. The Council confirmed the plan was still for Y to attend school sessions once School 2 placed Y on roll.
59. On 12 March 2025, the Council issued a Stage 2 complaint response to Mrs X. The Council said:
• It apologised for the delay in issuing the Stage 2 complaint response.
• It apologised for failing to keep Mrs X suitability updated about the conversations between Council departments and the work ongoing with School 2.
• It had started to provide Alternative Provision of education for Y with the view to reviewing this at Easter to support a transition into School 2.
• It had named School 2 in Y’s EHC Plan at Mrs X’s request and was working on ensuring School 2 could adequately meet Y’s needs.
• It hoped School 2 would place Y on roll soon.
60. On 31 March 2025, the Council confirmed Y’s Alternative Provision of education would continue from 22 April 2025 to the end of the academic year. The Council proposed to increase Y’s provision to two days at Willow Bank.
61. By May 2025, Mrs X advised the Council had put in place suitable provision for Y.

Analysis

Alternative Provision of education

62. It is not the role of the Ombudsman to investigate the actions of a school. Y was enrolled at School 1 and it was responsible for Y’s education. The Council would not consider its duty to provide education for a child until they stop attending school.
63. Y stopped attending School on 11 October 2024 as part of a temporary suspension. While Y stopped attending on this date, School 1 only suspended Y until 15 October 2024. This meant School 1 had a set timescale for this suspension with a plan for Y to return. The Council’s duty to provide education would not apply in this situation.
64. Mrs X told the Council on 15 October 2024 that she did not want to send Y back to School 1. However, Mrs X did not formally confirm Y had not returned to School 1 until 21 October 2024. This was the date Mrs X formally requested Alternative Provision of education for Y and became the date the Council was aware Y was not accessing suitable education.
65. The notes provided by the Council show it accepted on 21 October 2024 that Y was not accessing education at School 1 and it had a duty to provide Alternative Provision of education for Y. This is because the Council consulted with School 2 and made a request for Alternative Provision of education for Y. The Council acted quickly in response to Mrs X contact to try to put suitable education in place for Y and I do not find fault.
66. Since the Council accepted it should provide Alternative Provision of education for Y, and Y’s absence was non-medical, the Council should have provided education for Y from their sixth school-day of absence. Given Mrs X told the Council on 21 October 2024, this made the sixth day the 5 November 2024 because of the half-term.
67. The Council did not make Alternative Provision of education available to Y on 5 November 2024. The Council instead reversed its decision and decided it should not provide this for Y with a plan instead to reintegrate Y into school. Mrs X also told the Council on 5 November 2024 she did not want Alternative Provision of education for Y and instead wanted Y back in school. This caused a stop to any action to find suitable Alternative Provision while the Council tried to work towards a solution with Mrs X and School 1. I cannot find the Council at fault for taking this approach in the circumstances of this complaint.
68. Following Mrs X’s contact on 16 November 2024 to advise she did want Alternative Provision of education for Y, this re-engaged the Council’s Section 19 duty. The Council failed to reconsider its position or act sooner to provide Alternative Provision for Y. The Council was at fault for failing to provide any education from 18 November 2024. This was the first school day following 16 November 2024.
69. When a council provides Alternative Provision of education for a child it should aim to provide a full-time equivalent. However, this would not mean full-time school hours if a child was receiving 1:1 tuition as this is a more condensed form of learning compared to in schools. Additionally, a council does not have to provide full-time hours if this is not in the best interests of a child and any Alternative Provision of education should be based on a child’s individual circumstances.
70. From 27 January 2025, the Council started to provide Alternative Provision of education for Y. The Council acted in line with its Section 19 duty by providing the Alternative Provision of education through REACH and Willow Bank. At this stage, the Council considered Y’s individual circumstances, consulted with Mrs X, drew up a plan for education for Y and put this into place. The Council justified this package of education by detailing that it needed to start slowly to prevent Y from being overwhelmed. I cannot find fault with the Council’s decision over the amount of Alternative Provision of education it provided from 27 January 2025.
71. The Council has shown that it kept Y’s Alternative Provision of education under review from 27 January 2025 to the end of the spring term. The Council also proposed to increase this education from 22 April 2025. The Council has acted in line with its Section 19 responsibilities and I do not find fault.
72. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
73. The Council failed to take suitable steps to make suitable educational provision available for Y from 18 November 2024 until 27 January 2025. This amounts to eight weeks.
74. I have considered Y’s individual circumstances and our guidance on remedies. This considers the lack of formal educational provision Y received caused by delays from the Council. I consider the Council should pay Mrs X £1,100 for the eight weeks of Y’s missed education. Mrs X may use this to source any catch-up provision she considers suitable for Y.

EHC Plan production

75. Following Mrs X’s request for an EHC Plan needs assessment for Y on 2 June 2024, the Council had six weeks, until 14 July 2024, to decide whether to assess Y for an EHC Plan. The Council made its decision to assess Y on 3 July 2024. The Council has acted in the timescales and I do not find fault.
76. The Council’s deadline for issuing a Final EHC Plan for Y, following assessment, was 20 October 2024. The Council issued a Draft EHC Plan for Y on 2 October 2024 but then failed to issue a Final EHC Plan until 19 December 2024. The Council delayed by eight weeks outside the statutory timescales; this was fault.
77. This fault will have caused Mrs X frustration and inconvenience and delayed Y opportunity to receive any EHC Plan provision. However, the frustration and inconvenience to Mrs X is slightly mitigated by Mrs X contributing towards this delay by asking the Council to consult School 2 on 21 October 2024. Had Mrs X sought consultation of a new school sooner, this would likely have prevented as significant delay outside the statutory timescales. While Mrs X may not have known the need to consult a different school sooner, this has caused a direct impact on the Council’s ability to produce a suitable Final EHC Plan.
78. Given the circumstances involved, I consider the Council should apologise to Mrs X for failing to meet the statutory timescales. The Council should also provide Mrs X a payment of £100 for any inconvenience and frustration caused to her and potential lost opportunity for Y.

EHC Plan provision

79. On production of Y’s Final EHC Plan on 19 December 2024, the Council had a legal duty to provide Y with the full provision detailed in the EHC Plan. This includes the full Section F provision and access to the placement in Section I.
80. From 19 December 2024 until the end point of my investigation, at the end of the spring term of 2024/2025, Y has not attended School 2. This is because School 2 has failed to place Y on roll and failed to facilitate any time for Y at the school supported by either Y’s tutor or mentor.
81. The Ombudsman cannot investigate the actions of School 2. However, the responsibility for delivery of Y’s EHC Plan ultimately lies with the Council. As such, the failure to ensure School 2 placed Y on roll and ensure Y had access to School 2 is fault by the Council.
82. The Council should ensure School 2 places Y on roll, if not already done, so Y can start to access provision in the school setting.
83. The failure to ensure Y could access School 2 has also had an impact on Y’s ability to receive suitable Section F EHC Plan provision. Much of the Section F provision detailed in Y’s EHC Plan is to be provided by school staff. While, the Council has advised School 2 it would expect a slow transition to school and would not expect all EHC Plan provision provided immediately, some EHC Plan provision should have been available to Y from 19 December 2024. This was fault.
84. Notably, Y has missed such provisions as Reading Fluency, Practice turn-taking, Social Communications interventions and awareness of danger provisions. However, Y has received Occupational Therapy, although through the NHS, and mentoring. The Alternative Provision at Willow Bank and REACH has also given Y access to social situations and support.
85. The Council should apologise to Mrs X for failing to ensure Y received suitable Section F provision detailed in Y’s EHC Plan and failing to provide access to Y’s Section I school placement. The Council should also provide a payment to Mrs X of £500 for Y’s missed provision.

Complaint handling

86. The Council’s policy on handling complaint says it will aim to acknowledge a complaint within 5 working days and respond at Stage 1 within a maximum of 20 working days of acknowledgment. This gives the Council a total of 25 working days to acknowledge and respond to a complaint.
87. Mrs X made her first complaint to the Council on 17 May 2024. The 25 working day timescale gave the Council until 21 June 2024 to provide the Stage 1 complaint response. The Council provides it Stage 1 complaint response on 13 November 2024; this was nearly five months outside the Council’s complaint timescales. This was fault.
88. Mrs X sought escalation of her complaint on 24 November 2024. There is no evidence the Council acknowledged this complaint or provided a timescale for response; this was fault. Given there was no agreed timescale for response, the Council has not failed to meet this. However, the Council took four months to provide its Stage 2 complaint response which is an unusually long time period for providing a complaint response. The Council also acknowledged in its Stage 2 complaint response it had delayed in providing this response.
89. The Council has already apologised to Mrs X in both the Stage 1 and Stage 2 complaint responses about the delays in its complaint handling. I consider the Council should also provide Mrs X with a payment of £250 for the distress and frustration the Council’s complaint handling delays have caused.

Service improvements

90. The Ombudsman is aware that Somerset Council is currently undergoing a significant transformation programme for its SEND services following development of a SEND action plan. The Ombudsman is overseeing Somerset Council’s wider SEND strategic plan which includes the issues identified in this complaint. For this reason, I am not making any service improvements.

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Action

91. Within one month of the Ombudsman’s final decision the Council should:
• Pay Mrs X £1,100 for Y’s missed education for eight weeks.
• Apologise to Mrs X for failing to meet the statutory timescales in producing Y’s Final EHC Plan. Provide Mrs X with a payment of £100 for any inconvenience and frustration caused to her and potential lost opportunity for Y.
• Ensure School 2, as named in Y’s EHC Plan of 19 December 2024, places Y on roll, if not already done.
• Apologise to Mrs X for failing to ensure Y received suitable Section F provision detailed in Y’s EHC Plan and failing to provide access to Y’s Section I school placement. Provide a payment to Mrs X of £500 for the impact on Y caused by this missed provision.
• Provide Mrs X with a payment of £250 for the distress and frustration the Council’s complaint handling delays have caused.
92. The Council should provide us with evidence it has complied with the above actions.

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Decision

93. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman