Summary: Mrs X complained the Council failed to provide suitable education or Education, Health and Care Plan provision for her child. Mrs X also complained about delays in reviewing her child’s Education, Health and Care Plan. We found fault with the Council failing to provide suitable education for Mrs X’s child and delaying review of the Education, Health and Care Plan. We also found fault with the Council failing to provide the provision in the Education, Health and Care Plan from January 2024 to the end of the academic year. The Council agreed to apologise to Mrs X and pay her an extra £1,150 to the £2,000 already paid for missed education. The Council also agreed to pay Mrs X £250 for the frustration and lost opportunity caused by its delays in reviewing the Education, Health and Care Plan. And, the Council agreed to pay Mrs X £500 for the impact on her child’s education and wellbeing caused by the loss of the Education, Health and Care Plan provision for nearly two full terms.

The complaint

1. Mrs X complained the Council failed to provide suitable education or Education Health and Care (EHC) Plan provision for her child.
2. Mrs X also complained the Council delayed in reviewing her child’s EHC 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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 SEND 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(i), as amended)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

10. I have investigated all matters Mrs X has complained about from 10 August 2023 to 24 July 2024.
11. I have not investigated any matters before 10 August 2023 because the Ombudsman has previously completed an investigation into such matters. The Council produced a Final EHC Plan for Mrs X’s child on 10 August 2023 which is clear and obvious starting point for this investigation.
12. I have not investigated any matters after 24 July 2024 about providing EHC Plan provision or the suitability of education. This is because Mrs X used her appeal rights to the SEND Tribunal over Sections F and I of her child’s EHC Plan.
13. A council has a general duty to provide a child with the Section F provision detailed in their EHC Plan even when a person has appealed to the tribunal. An appeal to the SEND Tribunal does not automatically prevent the Ombudsman from investigating whether the Council carried out this duty. However, the Ombudsman cannot investigate something when this would overlap with the role of the tribunal; this depends on the nature and wording of an appeal to the tribunal. The law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
14. Mrs X appealed the quantity, mode of delivery and the people who would deliver, her child’s Section F provision to the SEND Tribunal. Mrs X also appealed the school named in Section I of the EHC Plan.
15. Because of the wording of Mrs X’s appeal to the SEND Tribunal, and the nature of this appeal, there would be a clear overlap between an Ombudsman investigation and what was considered through the tribunal. This presents a jurisdictional bar to the Ombudsman investigating this part of Mrs X’s complaint.
16. Mrs X has also raised concerns about the Council failing to complete a further review of her child’s EHC Plan for transition in September 2025. Mrs X brought her complaint to the Ombudsman in January 2025. This meant the deadline for the Council to produce the transition EHC Plan had not passed when Mrs X brought her complaint to us. The Council issued its Stage 2 complaint response in December 2024 with no complaint about the transition EHC Plan. The Ombudsman must give a council opportunity to address a complaint before we investigate. Because of this, I cannot investigate this part of Mrs X’s 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 decision. I considered any comments before making a final decision.

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What I found

Rules and regulations

EHC Plans

19. 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.
20. 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.
21. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
22. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
23. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
24. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
25. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
26. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
27. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
28. 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

29. 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.
30. 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)
31. 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))
32. 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)
33. 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
34. 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.

35. 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.
36. 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.
37. 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.

What happened

Background

38. The Ombudsman previously investigated a complaint by Mrs X about the suitability of education provided for her child. This investigation considered matters up to producing Y’s first Final EHC Plan, on 10 August 2023.
39. The Ombudsman’s previous investigation found Y’s school had arranged a part-time timetable to reintegrate Y into school in the final term of the 2022/2023 academic year. We found no fault with the Council’s decision Y could access education in the school setting with suitable support from the EHC Plan. Nor did we find fault with the Council’s decision that alternative provision of education was not needed, and suitable opportunity should be given for the EHC Plan provision to help with Y’s attendance.

Matters for this complaint

40. On 10 August 2023, the Council issued a Final EHC Plan for Y. This Final EHC Plan named Y’s school in Section I of the EHC Plan. The Council named Section I in line with Mrs X’s wish for this to be named as Y’s educational placement. The Final EHC Plan detailed the support it would provide Y as part of the reintegration into school including:
• A gradual and supported reintegration;
• Timetabled sessions with a key adult;
• Provision of safe space for Y;
• Support to avoid noisy transition periods;
• Provision of key adults.
41. The Final EHC Plan also detailed that Y would receive specific interventions in Section F of:
• 20-30 minutes, 2-3 times per week, of a social communication skills package on a 1:1 basis;
• 30 minutes per week for Social and Emotional Mental Health; and
• 20-30 minutes, 2-3 times per week, of targeted sessions to embed taught skills and strategies around anxiety.
42. On 23 August 2023, Mrs X told the Council that Y was refusing to return to school at the start of the next term. In September 2023, Y did not return to school.
43. Mrs X contacted the school on 7 September 2023 to advise Y was having meltdowns about returning to school. Mrs X asked if the school could provide online lessons for Y or formal EOTAS.
44. On 14 September 2023, Mrs X contacted the Council to confirm that Y could not attend school. Mrs X said Y’s mental health was low and had spoken with the school who agreed it was not in Y’s best interests to return to school at present.
45. The Council responded to Mrs X and agreed to attend a meeting with her and the school on 20 September 2023.
46. During the meeting on 20 September 2023, Mrs X requested EOTAS for Y. The Council said Y’s school would see what offer of educational provision they could put in place for Y as part of the reintegration plan.
47. On 21 September 2023, Mrs X contacted the Council to detail her concerns about the Council declining Section 19 provision for Y. Mrs X explained her reasons for requesting Section 19 provision and while she accepted reintegration into school was the eventual end-goal she felt the Council should provide suitable education meanwhile. Mrs X said Y was not receiving suitable education, and had not been for the past year and the legal duty to provide education now rests with the Council.
48. On 25 September 2023, CAMHS completed an assessment of Y. CAMHS decided it was not the correct body to support Y and Y would instead be better suited to a low intensity emotional wellbeing intervention through Compass B.
49. The Council held a meeting with Y’s school on 27 September 2023. Y’s school confirmed it was providing work through Google Classrooms for Y. When the Council contacted Mrs X following the meeting, Mrs X expressed concerns the work shared on Google Classrooms was limited and asked the Council to provide a full EOTAS package.
50. On 28 September 2023, Mrs X wrote to the Council to formally request it provide alternative provision of education for Y. Mrs X requested this education was a full-time equivalent and suitable for Y’s needs and aptitude. Mrs X also asked the Council to ensure Y’s Section F provision from their EHC Plan was also provided.
51. The Council called Mrs X on 28 September 2023 and said it needed medical evidence that Y could not attend school before it could provide EOTAS. The Council said the school was sharing work for Y to access online.
52. Mrs X responded to the Council on 29 September 2023 to advise the work shared by school was inconsistent and not meeting Y’s needs. Mrs X said this was also not formal education as no one was checking the work and it was simply Y making notes.
53. In October 2023, a referral to Compass B was completed.
54. On 19 October 2023, Mrs X contacted the Council and asked for an emergency annual review of Y’s EHC Plan. Mrs X said Y’s EHC Plan was not working and Y was not receiving formal education. Mrs X said the Council was refusing to put in place EOTAS despite her repeat requests.
55. The Council held a meeting with Mrs X and the school on 3 November 2023. The Council confirmed during this meeting that it considered Y was experiencing Emotional School Based Avoidance. The school said that is was providing work for Y in all topics on Google Classroom but admitted this was not consistently provided with lessons missed. The school said this was a reasonable adjustment for Y and not a long-term offer of education. The Council said it considered the school could meet Y’s needs and, as such, did not consider it should provide EOTAS for Y. The Council said it would not be offering home tuition for Y but instead proposed an online provider such as NISAI to supplement the school’s offer of provision. The Council said this would support the reintegration plan for Y into school. Council said it has spoken with Compass B who are offering low level therapy but Y is finding it difficult to engage with the therapist. The Council told Y’s school to provide consistent education on Google Classrooms and Council will look at providing NISAI to support education.
56. On 20 November 2023, Mrs X got a letter from Y’s GP saying “going into school is not appropriate at the moment” and Y needs help from school and associated teams. Mrs X provided this letter to the Council.
57. On 29 November 2023, Compass B contacted the Council to advise it considered there was not much in place education-wise for Y. Compass B said Y could benefit from access to more learning while at home and their current input with Y was solely “relationship building” sessions. Compass B suggested the Council considers BESS tuition for Y.
58. On 6 December 2023, the Council paid for online learning for Y totalling 10 hours each week for English, Maths and History with pastoral support included in this package for Y’s EHC Plan provision.
59. On 14 December 2023, the Council held a meeting for Y’s access to education. The Council confirmed its agreement to provide online tuition for Y and virtual tutor sessions to provide support for with key skills such as confidence and emotional literacy. The Council planned for Y to access 10 hours of online tuition each week. The Council said work with Compass B would continue to support Y with anxiety and school avoidance.
60. On 10 January 2024, Mrs X reported to the Council that Y had started the online learning. Mrs X said Y “has engaged well and likes the format”; this online learning was for English and Maths. Mrs X confirmed that Compass B cannot engage with Y further and have referred Y to virtual reality therapy who referred Y back to CAMHS as this service was no longer available.
61. Mrs X liaised with NISAI in January 2024 who confirmed no other provision had been requested from the Council.
62. The Council held a meeting for Y on 23 January 2024. The Council confirmed Y was now receiving English and Maths tuition each week totalling 4 hours provision but had missed the deadline for History provision. This meeting confirmed that Y’s school was not supplementing Y’s education through Google Classrooms and it had not provided a new laptop for Y. This meeting also confirmed Compass B had stopped provision with Y. The Council committed to sourcing extra educational courses for Y.
63. On 30 January 2024, Y’s school agreed to provide work for Y again through Google Classrooms as part of a reintegration plan. Y’s school confirmed it would agree to hold an annual review meeting for Y.
64. Mrs X told the Council on 23 February that she had not heard from CAMHS or Y’s school. Mrs X asked the Council if it had managed to arrange any extra educational courses for Y.
65. The Council responded to Mrs X on 27 February 2024 to advise it was chasing Y’s school to arrange an annual review for Y.
66. On 19 March 2024, the Council held an emergency annual review meeting for Y’s EHC Plan. The meeting notes detail consideration that the EHC Plan would meet Y’s needs if Y could attend school but at present Y’s needs do not allow Y to attend school. Mrs X says the Council agreed to provide EOTAS.
67. On 25 April 2024, the Council wrote to Mrs X to advise it intended to amend Y’s EHC Plan.
68. On 1 May 2024, Mrs X told the Council the online work was too easy for Y and was not preparing Y for GCSEs. Mrs X told the Council Y’s school was still being inconsistent in providing work through Google Classrooms. Mrs X also told the Council that CAMHS has still not contacted Mrs X about providing support.
69. The Council requested EOTAS for Y on 13 May 2024. The Council confirmed that Mrs X had requested EOTAS at the annual review meeting and that school has confirmed it cannot meet Y’s needs. The Council said it had committed to providing 10 hours of education each week for Y online supplemented by work from school. The Council confirmed Y’s school was not consistent in its provision of work.
70. On 21 May 2024, the Council approved the EOTAS request for Y.
71. An EOTAS meeting for Y on 22 May 2024 confirmed the following from the lead EOTAS teacher:
• Y was only accessing 4 x 30 minutes each week of Maths and 4 x 30 minutes each week of English.
• The education provided by Y’s school on Google Classrooms lacked continuity and is not formal teaching.
• 1:1 tuition had been agreed in the home setting to start in June – July 2024 and then continue into September 2024.
• The Council would review the suitability of this provision.
72. On 4 June 2024, the Council visited Mrs X to review Y’s access to education. The Council confirmed Y was not accessing the online learning because of issues with the laptop but Y’s school said there was no issue with the laptop. Y also expressed the online learning was too easy. The Council discussed what educational package Y would like moving forwards with Y and Mrs X.
73. In June 2024, Mrs X told the Council she would be arranging courses for Y herself because the Council had not put tuition in place yet.
74. On 21 June 2024, the Council told Mrs X it would be looking to request 10 hours of face to face tuition for Y and ensure it supports Y to sit examinations and gain qualifications.
75. On 5 July 2024, the panel agreed to fund 10 hours of tuition for core subjects and 2 hours to support SEMH outcomes for Y. The Council also agreed an extra budget to fund entry fees for examinations and to provide £2,000 funding for the Chemistry, Biology, Psychology and Business Studies courses Mrs X had paid for. The Council shared this with Mrs X.
76. In July 2024, the Council confirmed it had arranged tuition to start from September 2024.
77. The Council issued a finalised amended EHC Plan to Mrs X on 12 July 2024 and sent a letter to Mrs X on 24 July 2024 about this. Y’s final EHC Plan detailed in Section F that Y would receive 10 hours of face to face tuition which includes 2 hours of support for SEMH outcomes. The Council named Y’s School in Section I despite the EOTAS provision. The Council detailed how Mrs X could appeal this EHC Plan to the SEND Tribunal.
78. On 18 July 2024, Mrs X made a formal complaint to the Council. Mrs X complained:
• The Council delayed review of her child’s EHC Plan.
• About the content of the amended Final EHC Plan.
• The Council failed to provide suitable education from September 2023 despite a legal responsibility to provide education for a child who could not attend school.
• The school provided some education but this was not at a suitable quality or quantity.
• She sourced educational courses and paid for educational equipment for Y (such as printer, ink and other supplies) as well as some tutoring for Y.
79. Mrs X submitted a new complaint to the Council on 5 September 2024. The Council linked this to Mrs X’s complaint of 18 July 2024.
80. On 4 October 2024, the Council provided a Stage 1 complaint response to Mrs X. The Council said:
• An annual review took place on 19 March 2024 meaning that EHC Plan needed to be finalised by 10 June 2024. The Council acknowledged it missed this deadline and only finalised the EHC Plan on 12 July 2024 and apologised for this delay.
• Y would stay on roll at the school so it could make necessary arrangements for Y’s GCSE exams.
• Y was on roll at the school named in Section I of Y’s EHC Plan throughout the academic year 2022/2023. Council said it became apparent Y would need bespoke offer of education which it developed as soon as was possible.
• It agreed to provide funding for an online package of tuition which was in place since January 2024.
• Mrs X first reported that Y was engaging with the online learning but Y started to disengage. The Council said it created new plan and supported the provider that Mrs X identified.
• A suitable package of tuition is in place and would be reviewed termly.
• The educational provisions that Mrs X paid for was not something that would normally be provided in a mainstream school. The Council said this did not meet Y’s EHC Plan needs so it would not offer redress for this.
• It had issued a personal budget for PA to cover the costs of the online course that she chose to support Y as further educational provision.
81. On 9 October 2024, Mrs X sought consideration of her complaint at Stage 2. Mrs X said:
• She disputed the content of the EHC Plan and said the provision detailed in this was not sufficient for Y’s needs.
• The Council did not send the draft EHC Plan to Y before finalising it so did not allow her opportunity to comment on the final draft. Mrs X said she was not given the 15 days required.
• The Council delayed providing EOTAS despite this being agreed on 10 May 2024.
• Online learning was provided but was not suitable for Y and many assignments were incomplete. Mrs X said she raised this with the provider and the Council but this was not resolved. Mrs X said she repeatedly asked for provision to be replaced but Council never responded to requests.
• Mrs X she paid for 4 other subjects through online providers for Y because of lack of provision for Y. PA said Council agreed to refund the cost of this.
• Mrs X said she wanted the current provision increasing.
• The Council was not providing EHC Plan provision.
82. The Council provided a Stage 2 complaint response on 2 December 2024. The Council said:
• It did not consider the delay in reviewing Y’s EHC Plan presented any impact on Y. The Council said this because it maintained that Y’s school was a suitable school placement for Y and the Section F provision remained consistent.
• It had started tuition from September 2024 which was reported as going well.
• It considered the tutors arranged for Y could cover all aspects of Y’s EHC Plan and not simply just provide education.
• It considered Y’s school was a suitable educational placement for Y but the difficulty was how best to support Y to attend this placement.
• Since Y could not attend school it agreed to a bespoke package of tuition for Y on 7 May 2024. The Council said while Mrs X wants more than 10 hours tuition for Y each week but it considered this suitable offer of provision because 1:1 tuition is more intense than school hours.
• It funded online learning from September 2023 to July 2024.
• The school also made education available through Google Classrooms.
• It concluded Y had access to education between September 2023 and September 2024 and that it put in place proper action plans in line with Y’s best interests.
• It has reimbursed Mrs X for some sessions she arranged for Y but not others that did not meet the outcomes of Y’s EHC Plan.

Analysis

EHC Plan reviews

83. A council should complete a review of a child’s EHC Plan yearly. However, a person can request an interim or emergency annual review of a child’s EHC Plan if they consider this needs to be completed sooner. A council does not have to complete an early review of a child’s EHC Plan but it should consider any request made.
84. Mrs X asked the Council to complete an emergency review of Y’s EHC Plan on 19 October 2023. The Council has confirmed it has no record of considering this request; this was fault.
85. This fault meant the Council went until 30 January 2024 to agree to arrange an annual review for Y’s EHC Plan. This was a delay of 14 weeks and 3 days causing uncertainty for Mrs X and a lost opportunity for Y to have their EHC Plan provision reviewed sooner.
86. Following the Council agreeing to review Y’s EHC Plan, it held an annual review meeting on 19 March 2024. There is no set timescale between agreement to complete a review and holding the meeting. Once the Council held the annual review meeting for Y’s EHC Plan it had four weeks to issue a notification to Mrs X advising of its intention to maintain, amend or cease Y’s EHC Plan. This meant the Council had until 16 April 2024. The Council issued a notification to amend letter on 25 April 2024; this was 7 working days beyond the deadline and was fault.
87. Following the Council’s agreement to amend Y’s EHC Plan it had eight weeks to issue an amended Final EHC Plan for Y. This meant the Council had until 20 June 2024 to issue an amended Final EHC Plan. The Council issued Y’s amended Final EHC Plan on 24 July 2024; this was 4 weeks and 2 days outside the timescales and was fault.
88. From 19 March 2024 to 24 July 2024, the Council delayed by 6 weeks and 1 day outside the statutory timescales in reviewing Y’s EHC plan. This again caused Mrs X frustration and Y lost opportunity at receiving suitable up-to-date provision. This also delayed Mrs X’s right to appeal to the SEND Tribunal. However, the Council did produce the amended final EHC Plan within 12 months from Y’s original EHC Plan on 10 August 2023, meeting this statutory timescale.
89. Since Mrs X appealed the EHC Plan to the SEND Tribunal, this has given her opportunity to comment on, an dispute, the content of Y’s EHC Plan. This means any failure by the Council to share the draft EHC Plan with Mrs X has not caused an injustice in this matter.
90. In total, the Council has caused delays of about 20 weeks in reviewing, or failing to consider to review, Y’s EHC Plan. We consider the Council should apologise to Mrs X and pay her £250 for the injustice this fault caused.

EHC Plan provision

91. Once a council produces a Final EHC Plan for a child it has a duty to provide the full provision detailed in that child’s EHC Plan. When the Council produced Y’s EHC Plan on 10 August 2023 it had a duty to provide the full provision in that plan. Much of Y’s EHC Plan contained non-specific provision which was designed to be provided in school throughout the school day. This provision was available to Y through access to the school placement detailed in Section I of the EHC Plan.
92. However, the Council included three specific provisions, as outlined in paragraph 41, which were designed to be provided in school but are also quantifiable and can be provided outside the school setting. The minimum provision from paragraph 41 was for 1 hours and 50 minutes each week to help develop Y’s social communication skills, emotional mental health and support Y’s anxiety.
93. Y did not receive the EHC Plan provisions detailed in paragraph 41 from 10 August 2023 until work started with Compass B in October 2023. While Y did not receive the EHC Plan provision, the Council arranged for this to be provided through Y’s school. Overall, the Council put in place steps to provide this provision in school and then assessed how to provide this out of school through Compass B when it was clear Y would not attend.
94. From October 2023 to 10 January 2024, Compass B provided support for Y. Compass B are specifically designed to work with children who are struggling with their mental health and emotional wellbeing. This provision through Compass B fulfilled the quantifiable Section F provision in Y’s EHC Plan and I do not find fault.
95. From 10 January 2024, Y was accessing a package of support through online learning. This online learning should have included 2 hours each week of pastoral support. The NISAI pastoral support is designed to provide social and emotional support for children and should consider the support detailed in a child’s EHC Plan. The provision of 2 hours each week of this support from 10 January 2024 to 24 July 2024, the end of the academic year, would have been fulfilment of the quantifiable Section F in Y’s EHC Plan.
96. However, the 2 hours of pastoral support each week was not commissioned by the Council and, as such, was not put in place by NISAI. This meant the Council failed to ensure Y had access to any form of provision to fulfil the quantifiable Section F provision from the 10 August 2023 EHC Plan for nearly two full-terms. This was fault.
97. This fault by the Council meant the Council failed to fulfil its duty to provide the EHC Plan provision in Y’s plan. This meant Y missed out on suitable support she needed impacting not only her education but also her mental well-being. The Council should pay a symbolic payment to Mrs X for £500 to recognise the impact its fault has caused Y.

Provision of education

98. It is not the role of the Ombudsman to investigate the actions of a school. I could not find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
99. Following the 10 August 2023 EHC Plan for Y, the Council had a plan that Y’s school was to reintegrate Y into the school setting. The Council detailed this plan with the relevant support needed in the EHC Plan. This was an appropriate approach to take in preparation for the 2023/2024 academic year and I do not find fault with the Council.
100. Y did not attend school at the start of the 2023/2024 academic year meaning the reintegration plan did not start. Mrs X told the Council about Y’s lack of attendance on 14 September 2023 and sought education for Y outside school.
101. The Council had a duty to consider Y’s access to education when Mrs X made it aware of Y’s difficulties in accessing education at their school. The Council’s Section 19 duty does not always mean it must provide education for a child not attending school. The Section 19 duty means the Council should consider a child’s individual circumstances and decide whether suitable education is available to this child or whether it needs to provide suitable education itself.
102. In response to Mrs X’s contact, the Council arranged a meeting to discuss Y’s access to education on 20 September 2023. The Council decided at this meeting that it considered Y could access education at the school supported through the reintegration plan. The Council made a merits decision following consideration of Y’s individual circumstances. This was a decision the Council was entitled to make and meant that it suitably met its Section 19 duty. I cannot find fault with the Council for this decision.
103. Once the Council decided Y should access school through the reintegration plan, it had a duty to keep this matter under review. The Council reviewed Y’s access to education again on 27 September 2023 and confirmed with Y’s school that is was providing education through Google Classrooms. The Council acted correctly up to this point and I do not find fault.
104. Mrs X disputed the suitability of Y’s education on 29 September 2023. Despite this, the Council failed to check Y’s access to education again until 3 November 2023. The Council failed to assure itself during this time that Y could access suitable provision through Google Classrooms despite Y being absent from school since the start of term, exceeding 15 school days. This was fault.
105. The Council decided on 3 November 2023 that it did not need to provide formal education outside of school for Y permanently. However, the Council decided that it needed to supplement the schools provision of education through online learning. This means the Council decided on 3 November 2023 it needed to provide a package of Alternative Provision of education for Y.
106. Given the Council’s decision it needed to provide Alternative Provision of education for Y on 3 November 2023, it should have put this in place by the latest of 13 November 2023. The earliest record of Y accessing online learning is in January 2024. This meant the Council delayed for over 6 weeks in arranging this provision or checking if provision was in place; this was fault.
107. In December 2023, the Council committed to providing 10 hours of online learning for Y. Despite this, the Council only arranged 4 hours of online learning. Mrs X also told the Council about inconsistencies with Y’s school providing learning through Google Classrooms. This meant the Council was providing below the level of Alternative Provision of education it considered suitable for Y’s needs; this was fault. The Council failed to provide the level of provision it considered suitable from the start of January 2024 through to 21 May 2024.
108. On 21 May 2024, the Council agreed to provide formal Education Otherwise Than At School for Y through 1:1 tuition. Despite agreeing to this and stating this would begin in June or July 2024, the Council did not provide this until September 2024. This was fault in delaying provision of suitable education for Y. Instead, Y continued to receive education which was below the amount the Council considered suitable.
109. 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.
110. Overall, Y has missed about two and a half terms of education without suitable provision in place caused by the fault of the Council. This is either because the Council has delayed in starting provision it considered was suitable for Y’s needs or failed to provide the level of provision it had considered was correct to meet Y’s needs.
111. I have considered Y’s individual circumstances and our guidance on remedies. This considers the inappropriate level of educational provision Y received caused by the Council. This is balanced against the provision of some education through online learning and Google Classrooms. And, the fact the Council has already paid Mrs X £2,000 for educational provision she has sourced for Y. I consider, the Council should pay Mrs X an extra £1,150 for Y’s missed education on top of the £2,000 already paid. Mrs X may use this to source catch up provision for Y in any way she sees fit or cover the cost of tutoring she has provided for Y up to 24 July 2024.

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Action

112. Within one month of the Ombudsman final decision the Council should:
• Apologise to Mrs X and pay her £250 for the delays in reviewing, or failing to consider whether it should review, her child’s EHC Plan.
• Provide a symbolic payment of £500 to Mrs X for the failure to secure any of Y’s quantifiable EHC Plan provision from 10 January 2024 to the end of the academic year and for the impact this had on Y’s education and well-being.
• Provide an apology and pay Mrs X £1,150 for Y’s missed educational provision during the academic year 2023/2024 caused through the Council’s fault.
113. The Council should provide us with evidence it has complied with the above actions.

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Decision

114. 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