Summary: Mrs X complained the Council failed to carry out an Education Health and Care Plan needs assessment properly for her child, B. She also complained the Council failed to provide alternative education to B. The Council was at fault. It failed to provide alternative education to B. The Council will make a payment to Mrs X, provide guidance and training to its staff, and conduct a review of B’s case.

The complaint

1. Mrs X complained the Council failed to carry out an Education Health and Care (EHC) Plan needs assessment properly for her child B. She also complained the Council failed to provide alternative education to B when he was not attending school.
2. Mrs X complained the Council delayed in making a response to her complaint.
3. Mrs X said she has been financially impacted because of failings of the Council. Not only has she commissioned private assessments and provision for B, but she has had to reduce her hours of work.
4. She said both her and B’s mental health have suffered due to failings of the Council.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 not investigated delay in the EHC needs assessment process. The delay was minimal. The Council has apologised. The apology is a sufficient remedy to the injustice caused by the fault.
11. Mrs X lodged an appeal with the SEND Tribunal about the content and school named in B’s EHC plan. Complaints about Council decision making regarding privately commissioned reports relate to the content of the EHC Plan which has been appealed. I cannot investigate these matters.
12. I have investigated Mrs X’s complaint about the lack of education received by B, between September 2024 and February 2025 (when the final EHC Plan was issued).
13. I have investigated how the Council handled Mrs X’s complaint.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. 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

Law and guidance

16. 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.
17. 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)
18. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
19. The education provided by the council must be full-time unless the council determines that 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)
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs a child may have. (Education Act 1996, section 19(6))
21. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
22. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
23. 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. 
24. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.

25. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement. 

26. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
27. A child’s parents or the young person do not have to consider mediation if their disagreement only relates to the placement named in section I or that no placement is named in section I.

What happened here

28. The following is a list of key events relevant to this complaint. It is not a list of everything that happened.
29. B is a child who has several specific learning difficulties. B also has social, emotional and mental health needs.
30. In September 2023 B started mainstream secondary school. B experienced significant difficulties in attending from Spring 2024. Mrs X said this was because of a decline in B’s health.
31. In July 2024 Mrs X asked the Council if B could have an EHC needs assessment.
32. In August the Council refused to assess B.
33. At the start of September, Mrs X asked the Council about alternative provision for B.
34. At the end of September, the decision not to conduct an EHC needs assessment for B was overturned through mediation.
35. In November Mrs X complained to the Council. She complained the Council had refused to use an independent report by an Educational Psychologist, as part of the EHC needs assessment. She also complained about the impact of the delay (in completing the EHC needs assessment) on B. Mrs X told the Council B had been out of school for two months and asked it to organise alternative provision.
36. Mrs X sent the Council a letter written by B’s general practitioner (GP). B’s GP asked the Council to organise alternative provision for B.
37. In January the Council made its response to Mrs X at stage one of its complaint procedure. It focussed on the complaint point about the use of an independent Educational Psychologist report. It explained the reasons it would not use it. It explained the delay in the assessment process. It said it partly upheld Mrs X’s complaint.
38. Mrs X was unhappy with the complaint response and escalated her complaint to stage two of the Councils complaint procedure.
39. At the end of January 2025, the Council agreed to issue an EHC Plan. At the start of February, the draft EHC Plan was issued. At the end of February, the final EHC Plan was issued.
40. In March the Council made its response to Mrs X’s complaint at stage two of its complaint procedure. The Council upheld Mrs X’s complaint about the lack of alternative provision being offered to B. It noted Mrs X had been asking the Council to help for a long time. It clarified its position about the Council not using the independent reports for the EHC needs assessment. It acknowledged delay in issuing a final EHC plan. It acknowledged delay in its complaint handling. It apologised. It explained the action it would take because of Mrs X’s complaint. It signposted Mrs X to the Ombudsman.
41. Mrs X lodged an appeal with the SEND Tribunal. She contested sections B, F and I of the plan.
42. A week later an amended EHC Plan was issued naming the school of Mrs X’s choice.

My findings

Alternative Provision

43. B had a significantly reduced timetable during the period investigated. Focussed provision was available for one hour per day, Monday to Friday. The school offered an additional 4 hours per week in a gym setting to B. Mrs X told us the offer was impractical. She was not allowed to take B’s (much younger) sibling to the setting, and she cared for B’s sibling during the day. Mrs X reported it was impossible for her to facilitate this option. During the time investigated, Mrs X repeatedly told the Council B could not attend school due to his health needs. Therefore, the provision that was available was not accessed by B routinely.
44. There is no evidence to suggest the Council took action to consider this. In response to my enquiries the Council said the school were responsible for B’s education, until the point where the draft EHC Plan was issued. This was wrong. It was the Councils responsibility to ensure that B received suitable education during the period he was unable to attend school. Actions of the Council during the period September 2024 – February 2025 were concerned with the EHC needs assessment. The Council did not properly consider the provision B was receiving, or its role in organising alternative provision for B.
45. The Council confirmed that B’s timetable was either delivered through school, or via provision organised and paid for by Mrs X.
46. The Council was aware Mrs X was organising and paying for provision because B was not in school. In Council case records it is noted in February 2025, that Mrs X had been paying for the alternative provision in place for B. Case records also show that Mrs X had been asking for help from the Council, regarding alternative provision for B, since September 2024. Mrs X also included this in her formal complaint to the Council which she made in November 2024.
47. I find fault with the Council for failing to fulfil its obligations under section 19 of the Education Act, 1996. The Council failed to ensure B received education from September 2024 – February 2025. B missed out on education during this time. Mrs X funded as much as she could, to enable B to have routine, and educational input. Mrs X reported great disruption to the family life during this period.
48. In December 2024 we made another decision about the Councils failure to organise alternative provision for a child in its area. In mid-2024, shortly before the period investigated in this complaint, the Council delivered training about its section 19 duties (Education Act, 1996), to its staff. The Council committed to rolling out this training annually. This was welcomed by the Ombudsman. However, this commitment did not prevent B’s experience, and the fault identified in this investigation.

Complaint Handling

49. The Councils stage one complaint response was focussed mainly on the matter of the use of an independent Educational Psychologist report.
50. The response did not acknowledge Mrs X’s request for alternative provision, or detail steps taken to ensure B was receiving education. It did not cover every aspect of Mrs X’s complaint. It partly upheld the complaint but did not offer any remedy. It did not apologise to Mrs X for the fault it had identified.
51. The stage two complaint response was thorough. It clearly explained the areas of the complaint it upheld or did not. It apologised properly for the failure to organise alternative provision for B. It explained the work that it would carry out because of learning from Mrs X’s complaint. It signposted Mrs X to the Ombudsman.
52. The Council acknowledged, in its stage two complaint response, there was a delay in replying to Mrs X, at stage one of its complaint procedure. It also acknowledged poor communication around this time. It apologised for this too.
53. I find fault with the Council for how it handled Mrs X’s complaint. Delay in the complaint handling caused undue time and trouble. The action taken by the Council, in making an apology to Mrs X, is a sufficient remedy for the frustration she experienced.

Remedy

54. In response to my formal enquiries the Council made an offer of £800 to Mrs X, to recognise the fault and the disruption caused to B’s education. The Councils recognition of its fault is welcomed, however this offer is not in line with our Guidance on Remedies.
55. The Council made a meaningful apology, for the fault it identified in its stage two complaint response to Mrs X. For this reason, I will not be recommending it makes another apology to Mrs X. I am satisfied the Council apologised properly.

Action

56. To remedy the injustice to Mrs X, and B, from fault by the Council, within four weeks of a final decision, the Council has agreed to take the following action:
• to recognise its failure to properly consider alternative provision, for the education B missed out on and the associated disruption to family life, make a symbolic payment to Mrs X of £1800, and
• reimburse Mrs X the cost of Forest School and Online Tuition provision from September 2024 to the date in February 2025 when the final EHC Plan was issued.
57. Within 12 weeks of receiving a final decision, the Council has agreed to take the following action:
• carry out a review of B’s case to identify what led to the failure to fulfil its duty to organise alternative provision for B,
• remind staff of its duty to provide alternative provision when a child of statutory school age is out of school for health reasons, exclusion, or otherwise. The Council should consider sharing a copy of our focus report ‘Out of school…. Out of sight?’ and our final decision with the reminder, and
• provide evidence the Council has delivered the annual training to its staff, about its section 19 duties (Education Act, 1996). Should this not be complete, organise the training to be delivered within the next 12 weeks.
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman