Summary: Mrs C complained about the Council’s handling of her daughter’s (X) education when she was unable to attend her school placement, and it caused delays in the Education, Health and Care Plan process. The Council accepted it had caused delays in the statutory process and failed to act on an offer from her preferred school placement. We also found fault in its failure to provide some suitable and timely alternative provision, and delays in its complaints handling. The Council will apologise and make payment to acknowledge the injustice this caused Mrs C and X.

The complaint

1. The complainant, Mrs C, complaint about the Council’s handling of her daughter’s (X) education since Autumn 2023. She said it:
• failed to adhere to the statutory EHC Plan process when it agreed to amend X’s EHC Plan following an annual review in early 2024;
• caused delays and failed to find X a special school placement as agreed; and
• failed to ensure X received a suitable education when she was unable to attend her school.
2. Mrs C said, as a result, X experienced a loss of education which impacted her mental health. Mrs C also said she experienced distress an uncertainty.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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. 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.
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(1), as amended)

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How I considered this complaint

9. I considered evidence provided by Mrs C and the Council as well as relevant law, policy and guidance.
10. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found

Relevant law and policy

Education, Health and Care Plans

12. 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.
13. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan. 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.
14. 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).
15. The Council has a statutory duty under s.14 Education Act 1996 to provide sufficient school places for its area and under s.27 of The Act to keep provision for children with special educational needs under review and consider the extent to which local provision meets the needs of children with special educational needs and disabilities.
16. 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 council must complete the review within twelve months of the first EHC Plan and within twelve months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. 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)
17. 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.
18. An EHC Plan may need to be amended outside of an annual review if there are specific changes to a child’s circumstances. Where there are significant changes to a child’s needs a Council may consider it appropriate to carry out a reassessment. (The Code 9.186-9.193)
19. Parents have a right to request specific types of school are named in an EHC Plan (s.38(3) of the Act). This includes requests for special schools.
20. Councils must consult with schools before deciding to name a school, but the decision to name a school is for the Council and it can decide to list a school if it does not agree with a school’s views about being able to meet a child’s needs.

Alternative provision

21. 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.
22. This applies to all children of compulsory school age living in the local council area, including those enrolled at school. (Statutory guidance ‘Alternative Provision’ January 2013)
23. The education provided by the council must be full-time unless the council decides full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
24. 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
25. We recommended councils should:
• consider the individual circumstances of each case. They should be aware they 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;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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.
26. In addition, the courts have considered the circumstances where the section 19 duty applies. Caselaw has found a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child “reasonably practicable” for it to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (see R (on the application of DS) v Wolverhampton City Council 2017)
27. 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 they fulfil their duties.

The Council’s complaint procedure

28. The Council has a two-stage complaint’s process. It says it will:
• acknowledge complaints within three working days;
• respond to stage one complaints within 10 working days, or 20 working days for complex complaints;
• respond to stage two complaints within 20 working days; and
• keep complainants informed every two weeks, if a response takes longer.

What happened

29. Mrs C’s daughter (X) has health conditions which impacts her ability to receive an education.
30. In September 2023 X had an EHC Plan which set out her special educational needs and the support she should receive. The Plan listed a mainstream school which she should attend.
31. X struggled attending her school in Autumn 2023. It was subsequently agreed she should be based in the school’s enhanced resource unit with teacher support for a limited period of time. She was unable to attend classroom teaching but completed work set for her.
32. By late 2024 X’s mood and behaviour in school progressively worsened, which impacted other pupils. It was not possible to provide work for her to complete in the enhanced resource unit and she only accessed an online teaching resource.
33. In January 2024 an incident took place. Mrs C had to collect X, and she did not return to school.
34. An emergency annual review was held. This set out the steps the school had taken to support X, but it said it could no longer meet X’s complex needs. Mrs C shared her parental preference for a specialist school. The Council asked the school to make a referral to its Out of School Tuition and said X’s EHC Plan would be amended.
35. Four weeks later Mrs C complained to the Council. She said X had been unable to attend school and was not receiving an education and provision set out in her EHC Plan. The online provision which had been offered broke down quickly.
36. The Council increased its funding to X’s school for it to provide alternative provision. It also confirmed it would amend X’s EHC Plan.
37. A draft Plan was issued in April 2024 which listed the education provider to be a mainstream school. X started attending a therapeutic alternative provision placement up to 12.5 hours per week.
38. Mrs C commented on the Draft EHC Plan and asked for specialist school to be listed in the Plan. The Council’s panel considered her request and agreed a specialist school was needed for X.
39. The Council consulted with specialist schools, including Mrs C’s preferred school.
40. Eight weeks after Mrs C’s complaint, the Council provided its response. It did not uphold her complaint and explained:
• X had been out of formal lessons since October 2023, and a transition plan was in place until early 2024. This had been unsuccessful, so an emergency annual review was arranged;
• the emergency annual review had been held and attended by the school and the Council. It has suggested for a referral for Out Of School Tuition and for the EHC Plan to be amended;
• X had online learning, and it had provided the school with alternative provision options. The school had since sourced provision and the Council had agreed to fund this; and
• it had sent consultations to schools, including Mrs C’s preferred school.
41. In May 2024 the schools consulted said they could not meet X’s need. However, Mrs C’s preferred school said they would need to assess X, but there would be a delay in its ability to do so.
42. In July 2025 Mrs C had an advocate who complained on her behalf. She said the Council had failed to meet deadlines for the EHC Plan process and X was out of education due to Council failures. She also asked the Council to confirm X would be placed with Mrs C’s preferred school, so the school could arrange the assessment it required.
43. A month later, the Council responded to the complaint. It acknowledged delays in securing a suitable school placement for X. It explained it agreed X could be assessed by Mrs C’s preferred school, but it was challenging consultations with other schools which would take some time. It also said X had received alternative provision from her school through a placement, but this had broken down.
44. Mrs C’s advocate asked the Council to escalate the complaint. She said it had failed to accept Mrs C’s preferred schools offer to assess X, and it continued to consult with inappropriate schools. X’s needs were not being met and she remained without an education.
45. In September 2024 the Council sent consultations to school’s again to find a placement for X.
46. In November 2024 the Council shared its final complaint response. It accepted it had not acted on Mrs C’s preferred school’s offer to assess X. It explained it had contacted the school in October 2024, but by then the school told the Council it could no longer take further admissions. It again said X had received alternative provision from the placement her school had arranged.
47. Mrs C asked the Ombudsman to consider her complaint. She said the Council failed to provide X with the education she was entitled to, failed to find a suitable school placement, and caused delays in the EHC Plan process.
48. In response to our enquiries the Council shared:
• It accepted it had caused delays in the EHC Plan process for X, and delay in finding her a specialist school placement. Including not acting on Mrs C’s preferred school placement’s offer to assess X. It said it had continued to consult with schools in 2025.
• It had delegated the responsibility of providing X with alternative provision to her allocated school. The school was therefore responsible for monitoring X’s wellbeing, attendance, and progress. Including arranging annual reviews. It set out the provision which had been offered.
• X had worked the Child and Adolescent Mental Health Services in Summer 2024 and had hospitalisations;
• Since September 2024 it had offered X to attend the enhanced resource unit in her school, after school paper-based education, online provision, the school had made an Out Of School Tuition referral but Mrs C had not provided up to date medical information, and refused the alternative provision offers; and
• In January 2025 it issued X’s final amended EHC Plan. This listed her current school, but also said specialist placement was needed and to be confirmed.

Analysis and findings

Delays in the EHC Plan process

49. The Council has accepted it caused delays in the EHC Plan process for X following the emergency annual review in February 2024. This was fault.
50. The Council did not issue X’s final amended EHC Plan until January 2025. This was therefore a delay of over eight months. I found this caused Mrs C distress and uncertainty. It also delayed her right to appeal to the SEND Tribunal. The Council’s apology was not enough to remedy the injustice this caused Mrs C.

School placement

51. The Council also accepted it had failed to find X a suitable specialist school placement, and it failed to act on Mrs C’s preferred school’s offer to assess X. This was fault.
52. I cannot say whether X would have obtained a placement at Mrs C’s preferred school as this was subject to the school’s assessment process. I also note, even if the Council had not been at fault and caused delays, it would have taken around seven months for the assessment. However, I am satisfied the fault caused Mrs C some further unnecessary distress and uncertainty.
53. The Council issued X’s final amended EHC Plan in January 2025 which lists her current school, and a specialist placement is to be confirmed. Any disagreement about the school placement, or lack of a placement, now carries appeal rights to the SEND Tribunal, I cannot therefore consider this.

Alternative provision

54. In the Autumn term of 2023 X was attending her school placement but started struggling to attend. I have not found fault by the Council during this period. This is because it was appropriate for the school to try to support X through its enhanced resource unit and with some other support.
55. In January 2024 X stopped attending school completely and the emergency annual review was held. I understand the Council expected X’s school to arrange the review and provide alternative provision. However, the responsibility for the delivery of these remains the Council’s.
56. I acknowledge attempts were made for X to receive alternative provision and the Council provided additional funding to the school. Some provision offered did not work, but X did access the therapeutic alternative provision for a short period.
57. I found the Council at fault for failing to provide X with suitable alternative provision, and act quickly enough when she did not have any provision available to her. In reaching my view, I was conscious:
• It was quickly clear online provision was not appropriate, and therefore any further offers of such provision were not useful;
• X’s school placement was available to her. However, it had already been agreed this was unsuitable, could not meet her needs, and a special school was required;
• It took two months for the therapeutic alternative provision to start and only lasted a short period. No other provision was received during this time, although the Council had made suggestions to the school for other alternative provision placements and for Out Of School Tuition;
• X did not receive any other education provision between January 2024 to January 2025. I acknowledge Mrs C refused some offers of provision, but these were largely what had been attempted already; and
• the considerations for Out Of School Tuition should not have required new or up to date medical evidence, as it was clear the Council’s section 19 duty to provide X with alternative provision already existed.
58. I cannot say how much education X could have engaged with, and she may not have been able to engage with a full-time education. She also worked with the Child and Adolescent Mental Health Service and had hospitalisations, which may or may not have happened but for the Council’s fault. However, I found she had a loss of education, and the special educational needs provision set out in her EHC Plan.

Complaints handling

59. I have considered the Council’s handling of Mrs C’s complaints. I found the Council at fault for causing some delays in its complaints process. This is because its response to each of Mrs C’s complaints in Spring, Summer, and Autumn 2024 took longer than the timescales set out in the Council’s complaints policy.
60. While the delays were limited, I found this caused Mrs C some additional uncertainty.

Service Improvements

61. We have investigated other complaints against the Council in which we have made service improvement recommendations.
62. I have not made recommendations relating to the EHC Plan process delays or its complaints handling. This is because the Council has an action plan to address delays in its EHC Plan process, and it has carried out steps to respond to complaints within timescales set out in its complaints policy.

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Action

63. To remedy the injustice the Council caused to Mr C and X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs C to acknowledge the injustice its faults caused her and X;

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. pay Mrs C £4,000 to acknowledge the loss of education and special educational needs provision X experienced between early 2024 to January 2025; and
3. pay Mrs C a symbolic payment of £350 to acknowledge the distress and uncertainty she experienced as a result of the delayed EHC Plan process and complaints handling.

In total the Council should pay Mrs C £4,350.

64. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. review, or share the outcome of any recent review, of alternative provision placements available within the Council’s area for children with complex special educational needs. This is to ensure it can adhere to its duties under Section 19 of the Education Act 1996 without delay. If the Council finds it lack alternative provision placements it should set out an action plan with how it intends to address this.
65. The Council should provide us with evidence it has complied with the above actions.

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Decision

66. I have completed my investigation with a finding of fault which caused Mrs C and X and injustice. The Council will apologise, make payment to Mrs C to acknowledge the impact its faults caused, and carry out a service improvement recommendation.

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Investigator's decision on behalf of the Ombudsman