Summary: We found there was delay in the Council finding Mr X’s daughter, Y, a new school place and delay issuing a new Education Health and Care Plan. The Council also failed to ensure Y received a suitable education while she was out of school. We recommended an apology and payments to reflect the impact of the lost education on Y and the distress caused to her parents.

The complaint

1. Mr X complained the Council delayed reviewing and updating his daughter’s Education Health and Care Plan (EHC Plan) when she was struggling to attend her mainstream school placement in late 2023/early 2024 (School A). The Council also failed to secure a suitable education for his daughter when she was out of education from February 2024. This impacted his daughter’s mental health and led to her missing education.
2. Mr X also complained that his daughter was not receiving the support set out in her EHC Plan when she was attending School A.
3. Mr X says, at every stage the Council’s responses to his complaints were late and inadequate and the Council did not inform him of his rights.
4. Mr X complained that the Council named an inappropriate mainstream school in her updated EHC Plan (School B). This led to severe anxiety, depression and further non-attendance.

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The Ombudsman’s role and powers

5. 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)
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(1), 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 the first three parts of Mr X’s complaint. I cannot investigate the final part, related to the school named in an EHC Plan issued in November 2024. This is because individuals have rights of appeal to challenge the named school. We would generally expect those rights to be used. The law says we have no jurisdiction to consider complaints about those points that are appealable once appeal rights have been used.

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How I considered this complaint

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

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What I found

Maintaining an Education Health and Care Plan (EHC Plan)

11. The council has a duty to make sure a child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
12. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative Education Section 19 Education Act 1996

13. 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.
14. 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).
15. 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)

What Happened

16. Mr X’s daughter (referred to as Y in this statement) first had an Education Health and Care Plan (EHC Plan) in September 2023. It named a mainstream school. Y began attending School A as a result.
17. Y’s EHC Plan set out various ways in which the curriculum needed to be adapted and where emotional support would be required. It stated Y needed one-to-one and small group learning as well as support in lessons. It stated the school should provide a nurturing environment, Y should receive adult support to develop social skills and make and maintain friendships. It also required a key adult to go through a visual timetable with her to prepare her for the week ahead.
18. From the outset, Mr X made the Council aware that Y was finding School A overwhelming and anxiety inducing. He stated she was only attending until 1pm as a result.
19. In January 2024, after a review of the information available, the Council agreed a special school would be appropriate for Y.
20. In early February Mr X asked the Council to make some amendments to the EHC Plan before consulting special schools. This was largely because the plan was written for a mainstream placement. Y also now had a diagnosis of Autism and her primary need was different. Mr X stated the one-to-one support required by the current EHC Plan would not be needed in a special school and he was worried it may put off special schools from agreeing they could meet need.
21. The Council acknowledged the issue and stated Section F of the plan would be amended. However, the changes Mr X requested were considered observations about Y’s time at School A, so they were not agreed. The Council stated, instead, it would include the requested alterations in cover letters to the schools being consulted to inform them of the difficulties Y had at School A.
22. From February half-term, Y refused to attend School A.
23. During February and March 2024 Mr X chased the progress towards finding a new placement. His MP also wrote to the Council. Their correspondence with the Council stated that Y had been bullied and isolated and struggled at School A without any of the support and provisions that were written into her EHC Plan. Mr X stated the school could not provide the support required by Y’s EHC Plan. He stated there were no teaching assistants or any supporting adults in place for example.
24. At the end of March Mr X was allocated a new case officer. The Council told his MP that School A remained Y’s current placement. It stated enhanced funding and support would be given to School A from the SEND team.
25. At the end of March Mr X’s preference school and another school stated they could not meet need. The preference school had told Mr X otherwise at a visit. Mr X stated the preference school had indicated that a documented need for one-to-one support at a special school would be an issue.
26. In April Mr X asked the Council to conduct an early Annual Review of Y’s EHC Plan so they can seek changes to accurately reflect Y’s support needs in a special school.
27. On 23 April Mr X specifically asked the Council to provide alternative education under the Council’s Section 19 duty.
28. On 7 May an early annual review of Y’s EHC Plan took place.
29. On 14 May the Council told Mr X it had considered his request for education under Section 19. It said it had looked at the available evidence and concluded more could be done in partnership by her school, Mr and Mrs X and Education Support Services to enable Y to access her education at School A. It declined to provide alternative educational provision on this basis. The Council stated a manager would contact the school to discuss the support already in place and ensure the school knew what support the Council could provide.
30. The Council provided records of its consideration of Mr X’s Section 19 request. They noted Y had not attended since February and there was no evidence Y had received a suitable education from School A remotely or otherwise. The notes stated after lengthy discussion, the decision was not to provide alternative education at this time because there was a ‘lack of clarity around school involvement and provision’.
31. Mr X complained on 24 May 2024. He stated that from the outset Y suffered bullying and harassment at School A, and Y’s EHC plan had not been adhered to in any sense. He noted that the EHC Plan content was aimed at a mainstream placement and they had made known their concern that this would hamper finding a special school placement. Because this was not acted on Mr X said it did cause special schools to refuse a place.
32. Mr X explained due to the bullying and harassment at School A, Y regressed and Y’s school avoidance and behaviour became an issue. He noted the Council refused Section 19 alternative education and stated the school would have additional funding. However, no-one would talk to him about how this funding would be used to support Y. They stated he had called an urgent annual review but this would again mean a wait, while in the meantime Y was outside education. Mr X complained that throughout the process, he had to chase constantly with responses regularly not being received in ten days as the council promises and when he received responses they did not address the issues.
33. On 31 May the Council sent a notice to Mr X confirming it would be amending Y’s EHC Plan.
34. On 20 June the Council responded to Mr X’s complaint. It apologised that it had not been able to secure a special school placement for Y and agreed the search had been protracted. The Council confirmed it’s agreement to amend the EHC Plan. It stated a case officer was working on this and would issue the final EHC Plan within the statutory 12-week timescale. The Council reiterated its view that it had considered the request for Section 19 provision carefully, but decided Y could be supported by School A. It stated funding was allocated. In relation to communication the Council stated officers endeavoured to respond to contacts within ten days and noted it had done recently. However, it apologised, if at any point this had not happened previously.
35. The Council contacted School A three times between 13 May and 21 June and left messages. The Council stated it received no response.
36. In July 2024 School A told the Council it was arranging alternative provision from a farm which would start in September 2024. It requested funding from the Council. Mr X told us no provision was ultimately provided at the farm.
37. On 25 November 2024 the Council issued a new EHC Plan naming a special school placement. I understand Mr X submitted an appeal against the named school.
38. In November Mr X raised a second complaint. This was in part about the named school which Mr X went on to appeal against. The complaint also reiterated his concern that the failure to change the EHC Plan caused difficulties, Y had been out of school since February 2024 and her EHC Plan had not been adhered to since its introduction.
39. In its response to the complaint the Council apologised for the frustration caused by its decision not to amend the EHC Plan prior to consulting special schools. The Council explained the consultation responses received and noted Mr X’s preference school was at capacity (as well as considering it was unable to meet needs) when originally consulted. So, the decision not to amend the EHC Plan earlier had not caused the loss of a place at their preferred school, which was still at capacity now.
40. The Council did not uphold Mr X’s complaint about the loss of Y’s education between February and September 2024. It stated its expectation was that School A would provide alternative education and it had met its duty by considering if it should provide education. The Council’s responses to both of Mr X’s complains did not comment on School A’s alleged failure to put Y’s EHC Plan support in place from the outset.

Was there fault by the Council

Delay in issuing the EHC Plan/finding a new placement

41. Mr X told the Council about issues with Y’s placement at School A from the outset in September 2023. The Council agreed in January 2024 that a new, special school placement was required for Y. Regrettably, there were delays in starting the process of finding a new placement and making the required changes to the EHC Plan.
42. We would have expected to see an annual review take place promptly when it became clear the place at School A was not working and a new placement was needed. It is also reasonably foreseeable that a change from a mainstream to special school placement could necessitate changes in the support set out in the EHC Plan. As it was, an Annual Review did not take place until May, 5 months after the Council agreed a new placement and 8 months after the issues were first known of. I found this delay in acting was fault.
43. When the Annual Review took place the Council promptly notified Mr X that it would amend the EHC Plan, but it then took 17 weeks longer than it should have to issue the new plan. This was partly because of the difficulty in finding a new placement. Mr X was understandably frustrated that there were also issues with consultations because Y’s EHC Plan did not accurately reflect the needs she would have in a special school environment. The delay in finding a suitable placement and issuing the revised EHC Plan represent fault by the Council.

Provision of Education/EHC Plan Support

44. The Council was aware that Y was only attending School A on a part-time timetable between September 2023 and February 2024. It was then made aware that Y was not attending school. The Council agreed to find a special school placement for Y on 16 January, but I found the Council had failed to follow up and establish what education Y was receiving in the meantime.
45. While the Council noted the school would be in receipt of further funding, it provided no evidence it had reviewed Y’s part-time timetable or taken steps to satisfy itself that the level of education being provided for Y was suitable when this was first raised. The Council’s response to our enquiries referenced comments made in the May 2024 Annual Review that more attendance (between September and February) would have been overwhelming for Y. It is possible that this would have been the case. However, the Council did not contemporaneously address and decide this at the time. This was fault. It leads to uncertainty about what additional education and support Y may have received had it done so.
46. The part-time timetable (based on attendance until 1pm) was only in place from September until February 2024 half-term. At this point, Y largely ceased attending School A altogether. This further decline to virtually no attendance should have been a further trigger for the Council to review the suitability of Y’s education provision. This too was fault.
47. In April Mr X made a specific request for the Council to provide alternative education under Section 19 of the Education Act 1996. The Council decided Y could still access her current school place with appropriate support from the school, her parents and the Council. In principle, this is a decision the Council is entitled to make (although I recognise Mr X disagreed strongly with it). In any event, in Y’s case the Council struggled to get School A to engage with it and neither School A nor the Council did provide a suitable education for Y until December 2024. So, regardless of any disagreement over the view the Council took on Section 19, the evidence is that the Council did not meet its duty to ensure Y received a suitable education between February 2024 and November 2024 when Y was not attending school. This was fault.

EHC Plan Support

48. There is no evidence that the Council addressed the reports from Mr X or his MP about School A’s failure to provide the support set out in Y’s EHC Plan. So, it is not clear how much the absence of that provision impacted what education Y may have been able to manage at School A or elsewhere.
49. The Council noted Mr and Mrs X commented that it was vital that the requirement for one-to-one tuition was removed, and that Y had ‘managed with difficulty with no support in mainstream school.’ The Council suggested this was evidence that the lack of one-to-one support did not significantly impact Y. However, one-to-one support in a mainstream environment was a requirement of Y’s EHC Plan. Y should not have had to manage with difficulty. Councils are obliged to provide the support set out in EHC Plans. As I say above, there is no evidence that the impact of not having her EHC Plan support was considered by the Council. The context of Mr and Mrs X’s desire for the removal of the one-to-one support from May 2024 is also clear from their correspondence with the Council at various points. It is clear they sought its removal so as not to hamper putting off special schools from accepting her, rather than because Y did not require it in a mainstream setting.

Summary and Impact to Y and Mr and Mrs X

50. There was initial delay seeking a new school placement for Y. There was a further 17-week delay in issuing a revised EHC Plan, once the Council had agreed to amend it and name a special school.
51. I found the failure to follow up what education Y was receiving at School A between September 2023 and February 2024 leaves uncertainty about whether the part-time timetable in place at that time provided a suitable education for Y during that period.
52. Y was not attending School A and did not receive a suitable education between February and May 2024. Although the Council considered a specific request for Section 19 support in May, it did not ensure an education was provided until September 2024. So, I found Y was without a suitable education between February and September 2024.
53. For the whole period (while Y was attending part-time and when out of school), and when responding to Mr X’s complaint, the Council did not address the concerns raised that Y was not receiving the support set out in her EHC Plan. It is not clear whether provision of this support, or as much as was possible while not in the school environment, would have assisted Y to better manage attendance or receive further educational provision.
54. There is evidence that during the delay in finding Y a new school place, there were some issues with responding to contacts from Mr X, which the Council apologised for.
55. In addition to the impact of the fault to Y, the delay finding her a new placement and the failings in educational provision also affected Mr and Mrs X’s mental health and caused distress.
56. Where we find fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the severity of the child’s SEN, the amount of education lost and whether the period of education was a significant one. In Y’s case I have recommended a payment of £3,200. This is based on £1800 per term (for one and half terms) of fully missed education, plus £500 to reflect the one and half terms in which it is uncertain if more education may have been possible had the Council become involved.
57. We have remedied this complaint until November 2024. This is because, in November, a revised EHC Plan was issued naming a new school. We do not consider we can consider a complaint about a loss of provision when a new school place has been named that can be or is subject to an appeal. We do not consider the lack of education from this point can be separated from the issues being considered at appeal.
58. We have not made service improvement recommendations as we have made such recommendations in other cases.

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Action

59. Within four weeks of my final decision:
60. The Council should send a written apology to Mr X and Y for the delay in finding a new school placement, the delay in issuing a revised Education Health and Care Plan and the failure to ensure Y received a suitable education.
61. To recognise the distress caused to Mr and Mrs X, the Council should make a payment of £300.
62. To recognise the uncertainty about the suitability of Y’s educational provision between September 2023 and February 2024, and to recognise that Y did not receive a suitable education between February 2024 and September 2025, the Council should pay Mr X, for Y, £3,200.
63. The Council should provide us with evidence it has complied with the above actions.

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Decision

64. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman