Summary: Ms F complained the Council failed to deliver her daughter’s (Y) education as set out in her Education, Health and Care Plan, provided insufficient alternative provision, and communicated poorly. We did not find fault by the Council in how it reached its views about Y’s education and the amount of alternative provision it offered. It was at fault for some poor communication, which caused Ms F some distress and uncertainty. The Council agreed to apologise to acknowledge the impact this had on Ms F.

The complaint

1. The complainant, Ms F, complained about the Council’s handling of her daughter’s (Y) education. She said it:
• failed to deliver the content of Y’s Education, Health and Care (EHC) Plan, and failed to conduct proper assessments of her therapy needs;
• failed to provide alternative education to Y when she became too unwell to attend school; and
• failed to properly communicate with her about her concerns.
2. Ms F said, as a result, she experienced distress and uncertainty, and Y missed out on education and special educational needs provision.

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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. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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. 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)
9. 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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What I have and have not investigated

10. I have investigated Ms F’s complaint about the Council’s handling of Y’s education from June 2023 to July 2024. Ms F first complained to the Ombudsman in January 2025, and parts of this period is therefore more than 12 months before she brought her concerns to our attention. However, I have found it appropriate to exercise my discretion to consider her complaint from June 2023 which was also the period of the Council’s investigation and when Y’s EHC Plan was issued.
11. I have not investigated:
• Ms F’s complaint about the education Y received before June 2023 as I have seen no good reason why her concerns could not have been brought to our attention sooner;
• any concerns Ms F may have about Y’s education for the 2024/2025 academic year as this occurred after the Council’s complaint response and was therefore not part of her complaint to the Council; and
• Ms F’s views about school placements, provision in Y’s EHC Plan, or assessments as part of the EHC Plan process such as occupational therapy and speech and language therapy. This is because the Council issued its final EHC Plans for Y which carried appeal rights to the SEND Tribunal. This would have been the appropriate route for Ms F to challenge any disagreements about such matters.

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How I considered this complaint

12. I considered evidence provided by Ms F and Council as well as relevant law, policy and guidance.
13. Ms F 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

Relevant law and guidance

Education, Health and Care Plans

14. 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. The EHC Plan is set out in sections. 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. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
16. 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 provision

17. 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.
18. 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)
19. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
20. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
21. 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
22. 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.

23. 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.

What happened

24. I have set out the key events which occurred. This is not intended to be a summary of everything that happened.
25. In early 2023 Ms F asked the Council to complete an Education, Health and Care needs assessment for her daughter (Y). The Council subsequently agreed.
26. Y was on a reduced timetable with her school at the time. She received some alternative provision. Her attendance at school was limited.
27. The Council issued Y’s EHC Plan in June 2023, which identified the challenges she had to attend and receive an education. The Plan set out the special educational needs support she should receive from her allocated school. It also said she should attend a specialist school from January 2024.
28. A meeting was scheduled in Summer 2023 with Ms F, the School and the Council, but did not go ahead due to illness. Shortly after, the School and the Council proposed a plan for Y’s reduced timetable and some alternative provision. Ms F agreed to the plan, which was to be reviewed in the Autumn.
29. In Autumn 2023 Y’s School reviewed her attendance and the educational provision she was receiving. It involved the Council and Ms F. This led to a small increase in alternative provision, which Ms F agreed to.
30. In late 2023 the School again reviewed Y’s educational arrangements, and an incident had occurred which meant a special educational needs tutor stopped working with Y, provision for behavioural support also stopped as this was not successful.
31. In January 2024 Y started on roll with the specialist school listed in her EHC Plan. Ms F shared she was happy with the education offer, but raised concerns about the peer group and how this would work for Y. The specialist school offered to support Y with transition into school.
32. Y did not attend the specialist school. Ms F told the Council Y would not attend, which was partly due to high levels of anxiety and attachment issues. She said the peer group and school was not suitable for Y.
33. The Council proposed Y could attend a different specialist school from July 2024. In the interim it would work with Y’s existing school to put an appropriate education in place for her through alternative provision. However, its view remained Y’s school could meet her needs.
34. In Spring 2024 Ms F continued to request more alternative provision for Y. However, she said tutoring in the home would not work. The Council and Y’s School discussed her request. The Council asked the School to put in place some additional alternative provision as requested by Ms F. This started in May 2024.
35. In Summer 2024 Ms F asked the Council to arrange Y’s annual review and asked about Education Other Than at School to be considered. She said Y was not receiving a full-time education. The Council arranged a date for the annual review. Ms F subsequently requested for Y’s needs to be reassessed. The Council agreed an EHC needs assessment should be completed.
36. Ms F again asked the Council to provide more alternative provision for Y. The Council’s Children Absent from Education panel considered her request and found it did not have a further alternative provision duty. This was because it had:
• provided two specialist school placements which was set out in Y’s EHC plan and the Council remained of the view these were suitable;
• arranged for Y’s schools to put in place provision to support Y’s needs. It was satisfied with the support that had been put in place and Ms F had agreed to reduced provision; and
• agreed to reassess Y’s needs, and its alternative provision duty did not apply during this time.

Ms F’s complaint

37. Ms F complained to the Council in Summer 2024. She said it had failed to provide Y with a full-time education which met her needs and failed to provide enough alternative provision over several years. This included:
• Prior to June 2023 when Y was on a reduced timetable and had health treatments;
• Between Summer 2023 to December 2023 when Y’s EHC plan had been issued and she was on role with her original school;
• From January 2024 to Summer 2024 when Y was on roll with a special school;
• In Summer 2024 when Y was on roll with a different special school, and a reassessment of Y’s needs was agreed; and
• Ms F said it had failed to properly consider Y’s needs in the EHC needs assessment process, which included occupational therapy and speech and language therapy assessments.
38. The Council did not uphold Ms F’s complaint. It said Y was on roll with the schools listed in her EHC plan, which it had found could meet her needs. If she disputed the school placements or the provision in her EHC Plans she had the right of appeal to the SEND Tribunal. It also explained:
• it had not considered her complaint about matters prior to Summer 2023;
• since Summer 2023 the schools had continued to make attempts to support Y to access her education on site;
• Y was on a reduced timetable which Ms F had agreed to. The schools were responsible for arranging the alternative provision. Some alternative provision were provided and other attempts and provision were offered or was unsuccessful;
• the schools kept the reduced timetables under review, discussed provision with Ms F, and the Council received updates. It was satisfied with the schools’ actions and attempts made to provide Y with as much education as she could engage with;
• the schools and it had considered Ms F’s views. This included educational provision and school placements in Y EHC Plan, and the alternative provision made available to Y. As a result some attempts for provision were offered, made available, or increased;
• In Summer 2024 it had considered Ms F’s requests for an annual review, an EHC needs assessment, Education Other Than At School, and a personal budget. It had agreed to reassess Y, it said once this process was completed it had a duty to consider and provide alternative provision. However, until then it was Y’s school which was responsible.
39. I understand arrangements were in place in September 2024 for Y to receive a higher amount of alternative provision, and the reassessment process of Y’s needs took place.
40. Ms F asked the Ombudsman to consider her complaint as she is not satisfied with the Council’s response or how it handled Y’s education.

Analysis and findings

Education duty and alternative provision

41. The Council was responsible for ensuring Y received an education and the provision set out in her EHC Plans. Such duty may be delegated to schools to provide, but the Council remains the responsible authority for Y’s education.
42. It is clear Y did not receive a full-time education between Summer 2023 to Summer 2024. During this time the alternative provision available to her ranged from around two to 10 hours per week, which was in addition to her available school placements.
43. I have considered whether the Council was at fault for Y’s limited education. I have not found the Council at fault. In reaching my view I was conscious:
• Y was placed on a reduced timetable, and the planned provision was set out and agreed with Ms F;
• the school’s kept the reduced timetable under review and provided updates to the Council. The Council considered this and made suggestions for further options and provision which could be attempted. Some attempts made were unsuccessful, and tutoring in the home was not found appropriate by Ms F;
• the schools and the Council had regard to the amount of provision Y may be able to engage with, the challenges in providing provision and where provision could be provided. They also considered Ms F’s views and increased some provision;
• Y’s ability to engage with her education did not improve despite attempts by her original school, and the two subsequent specialist school’s listed in her EHC Plan. She remained on roll with her schools which remained available to her; and
• if Ms F disagreed with the Council about the suitability of the school placement’s ability to support Y, she should have exercised her rights of appeal to the SEND Tribunal in Summer 2023 or early 2024.
44. It was for the Council to decide in its view what provision Y should be offered based on her individual circumstances. As I have not found fault in the process the Council followed to reach its views, I cannot therefore criticise its decision making.
45. I acknowledge Y’s education was significantly impacted during the period of my investigation, but this was therefore not due to fault by the Council. I would expect Y’s reassessment of needs for Autumn 2024 would have considered the impact this period had on her education, and an amended final EHC Plan would be issued which would support her as much as possible back into education.

Responsibility for alternative provision

46. In response to my enquiries, the Council acknowledged its complaint responses to Ms F could have been worded better. This was in relation to who was responsible for Y’s education and alternative provision. It confirmed it had delegated the arrangement of alternative provision to the schools, but the Council remained overall responsible.
47. I agree with the Council’s correction to its communication with Ms F, as this incorrectly indicated the schools had the alternative provision duty. While this may appear to be a minor detail, I am satisfied this caused Ms F some distress and uncertainty about the Council’s role. However, as I have not found fault on other parts of the complaint, I am satisfied an apology is appropriate to remedy the impact this had on her.
48. In addition, the Council said it was not under an alternative provision duty when it had agreed to carry out an EHC needs re-assessment for Y in Summer 2024. This is incorrect. The Council’s alternative provision duty continues even when a reassessment is taking place. However, this relates to the education Y should receive, not her special educational needs provision which is under re-assessment. I also acknowledge new provision attempts may not be appropriate as it would not be known until after the reassessment whether this would meet her existing needs.
49. I am also satisfied this incorrect wording by the Council may have caused Ms F some distress and uncertainty. However, an apology is sufficient to remedy this, as Y was provided with alternative provision from the start of the 2024/2025 academic year.

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Action

50. To remedy the injustice the Council caused to Ms F, the Council should, within one month of the final decision:
1. apologise in writing to Ms F to acknowledge the impact its incorrect or poorly worded responses about its alternative provision duty caused her.

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.

51. The Council should provide us with evidence it has complied with the above actions.

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Decision

52. I have completed my investigation with a finding of no fault by the Council in its handling of Y’s education between Summer 2023 to Summer 2024. It was at fault for some incorrect or poorly worded responses around its alternative provision duty. It agreed to apologise to Ms F to acknowledge the injustice this caused her.

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Investigator's decision on behalf of the Ombudsman