Summary: Mrs X complained about how the Council assessed Y’s Education, Health and Care needs and how it made alternative provision available to him while he was out of school. The Council was at fault for delays in securing alternative provision for Y, meaning he did not receive the education he was entitled to and causing frustration to Mrs X. The Council has agreed to apologise and make a payment to reflect the injustice.

The complaint

1. Mrs X complains about how the Council considered her son, Y’s Education, Health and Care (EHC) needs and made alternative provision available for him while he was out of school. Mrs X says this has caused real distress and frustration.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. 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)
6. 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.
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
11. If someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, connected to, or could have been part of the appeal. The Council provided a final EHC Plan for Y in February 2024 and Mrs X appealed this. I have not investigated how the Council assessed Y’s EHC needs or the content of his EHC Plan.
12. Mrs X first raised her complaint with the Ombudsman in February 2025, meaning anything that took place before February 2024 has been raised late. I have seen no good reason why Mrs X could not have raised her complaint with us sooner, so I have not exercised discretion to look back further than this.
13. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us. As the Council gave Mrs X its answer to her complaint in January 2025, I have only investigated up to that point.
14. Any mention below of events that took place before February 2024 or after January 2025 are for reference only.

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How I considered this complaint

15. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
16. 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

Relevant law and policy

EHC Needs Assessment

17. A child or young person with special educational needs may have an 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. 
18. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

Alternative provision

19. 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.
20. 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)
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. 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

23. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
24. Y was on roll at School A but his ability to attend had broken down. The Council considered Y’s EHC needs and decided to issue an EHC Plan for him. The Council arranged weekly safeguarding visits to Y, but no alternative provision was arranged for him.
25. In June 2024, the Council issued a final EHC Plan for Y, naming School A. Mrs X appealed this EHC Plan to the Tribunal.
26. In September 2024, the Council identified two tutor services who confirmed they were available to provide 15 hours of 1-1 tutoring per week for Y. However, its governance board did not approve funding for this until late October 2024.
27. Mrs X complained to the Council, who agreed it had delayed in agreeing alternative provision for Y and, as a result, he had missed education he was entitled to between September 2024 and January 2025.
28. The Tribunal heard Mrs X’s appeal in February 2025 and instructed the Council to issue a new EHC Plan, naming a package of Education Otherwise Than At School.
29. Responding to Mrs X’s complaint, the Council acknowledged there was a delay in arranging alternative provision for Y while he was out of school between September 2024 and January 2025. The Council apologised for this and offered to pay Mrs X £200 to recognise the frustration and uncertainty caused to her, and £2,000 in recognition of the missed educational provision.

Analysis

30. As set out above, I have not considered whether the Council was at fault for how it assessed Y’s EHC needs, or the content of his EHC Plan as this was appealable to the Tribunal.
31. From the start point of my investigation in February 2024, the Council was aware Y was not attending school and was under a Section 19 duty to arrange alternative education for him. The Council did not put anything in place for Y until January 2025, which amounts to fault. As a result, Y missed out on educational provision he was entitled to between February 2024 and January 2025, approximately two and a half school terms, and Mrs X was caused uncertainty and frustration, which is injustice.
32. The Council has already paid Mrs X £2,200 to cover the period between September 2024 and January 2025, which I find to be a suitable remedy for that period. However, I find the Council ought to make a further remedy to cover the period from February 2024 up until September 2024.

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Action

33. To remedy the injustice identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Mrs X to apologise for the delay in arranging alternative provision for Y while he was out of school between February 2024 and January 2025. 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.
• Pay Mrs X £2,000 in recognition of the missed provision between February 2024 and September 2024.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman