Summary: Mrs X complained the Council did not provide her child, Y, with alternative provision when he stopped attending school and failed to provide him with the provision in his Education, Health and Care Plan. Mrs X also complained about the Council’s delays with holding an early annual review and issuing his final Plan. There were faults by the Council which caused injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained about the Council’s:
1. failure to provide her son, Y, with education and alternative provision after he stopped attending school in February 2024
2. failure to provide Y with the provisions set out in Section F of his Education, Health and Care (EHC) Plan
3. delays with holding an early annual review of Y’s EHC Plan
4. delays with issuing Y’s final EHC Plan following the early annual review meeting.
2. Mrs X said as a result, Y lost out on education for one year and he was not provided with alternative provision. Mrs X said Y was not provided with the specialist provision and the support set out in his EHC Plan and the matter affected him mentally and socially.
3. Mrs X also said the matter caused her significant distress, worry and the time and trouble chasing the Council for updates and resolution.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. 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. 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)
11. In this case, although the Council issued its final response to Mrs X’s complaint in December 2024, I have exercised discretion to investigate matters until March 2025. This is because I find it unreasonable to refer Mrs X back to the Council to deal with matters between December 2024 and March 2025.
12. Therefore, I have investigated matters from February 2024 to March 2025. This covers the period from when Y stopped attending school to when Mrs X made a complaint to the Ombudsman.

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How I considered this complaint

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

Education, Health and Care Plan

15. 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.
16. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
17. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. There may also be situations when an early annual review is required. The review process includes a review meeting, and the subsequent decision, which have appeal rights. The process is only complete when the council issues a decision about the review.
18. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
19. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.

Alternative Provision

20. Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
21. 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)
22. Local authorities are expected to obtain data from all schools, regardless of governance, up-to-date and accurate data on all children not accessing full-time education.
23. 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? updated August 2023. Some of the recommendations we made included:

• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.
• consult all the professionals involved in a child’s education and welfare and take account of the evidence when making decisions.
• work with parents and schools to draw up plans to reintegrate children into 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.
• 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.

Council’s Complaint Procedure

24. The Council has a two-stage complaints procedure, and it aims to respond to service users’ complaints within 10 working days at both stages.

Background

25. Mrs X’s child, Y, has some health conditions and some special educational needs.
26. Y attended School A, and he has an Education, Health and Care (EHC) Plan.
27. The provisions in section F of Y’s EHC Plan included:
1. a differentiated curriculum within an education setting by using Y’s school delegated budget and the Council will provide top up funding of £7,814. This was to meet the needs specified in Y’s Plan and the provision map provided by Y’s school.
2. literacy and numeracy interventions (30 – 60 minutes in small groups).
3. a structured and monitored social skills intervention (30 - 45 minutes session, delivered on a weekly basis) within a quieter area to help develop his social interaction skills.
4. support from adults to mediate, model and promote effective interactions with peers when working within a small group.
5. continued close multi-agency working to share information on his needs progress, targets and helpful strategies through at least termly meetings/review.
28. School A placed Y on a part-time timetable in January 2024 as he was struggling to attend school due to his health conditions.

Key events

29. In February 2024, Y stopped attending School A due to his complex needs and concerns about his mental health. Mrs X said this was because the school did not provide him the provision in his EHC Plan and it was unable to meet Y’s needs.
30. On 25 February, School A informed the Council about Y’s case, and it requested additional funding to support the provision set out in section F of Y’s EHC Plan. The school also proposed a new timetable for Y which included alternative provision combined with two days at school.
31. The Council said it declined the additional funding request because the existing funding allocated to Y was sufficient to fund the agreed provisions in his EHC Plan. The Council asked School A to arrange a review of Y’s Plan.
32. On 26 February, Mrs X told the Council that Y had been out of school for more than 15 days and she asked it to provide Y with alternative provision at a specialist school (School 1).
33. Mrs X chased the Council a couple of times for its response to her request for alternative provision for Y.
34. On 24 May, an early annual review of Y’s EHC Plan was held. Some alternative provisions were considered for Y. For instance, part-time alternative provision for one term at School 1 was considered due to Y’s allocated funding. Mrs X raised concerns about how Y would be negatively impacted if the alternative provision was stopped after one term especially if School 1 met his needs and Y thrived in the school. Therefore, the alternative provision at School 1 was not explored further.
35. The annual review paperwork stated it was agreed Y would benefit from a smaller and more specialist setting to meet his needs. Mrs X requested a preferred setting (School 2) and asked if the Council could name it in Y’s EHC Plan.
36. In mid-June, the Council received Y’s annual review paperwork from School A. In early July, School A chased the Council for update about Mrs X’s request to consult School 2 (parental preference) and other Council recommended provisions.
37. In mid-July, the Council consulted with some specialist schools and by the end of the month, three schools said they could meet Y’s needs. This included Mrs X’s preference (School 2).
38. In September, the Council issued Y’s amended EHC Plan and it named one of the specialist schools it consulted with (this was not Mrs X’s preference). Mrs X refused the named setting due to its distance from their home address, and she asked the Council to rename School A in his Plan.
39. In November, the Council spoke with Mrs X and School A. The school agreed to have Y back on its roll and the Council named School A in his EHC Plan. Mrs X also asked the Council to consult with School 1 (the alternative provision placement) which was initially considered during the annual review meeting. The Council consulted with School 1 on the same day and before the end of the month, it responded. School 1 said it could meet Y’s needs and offered him a full-time timetable.
40. Mrs X said after School A was renamed in Y’s EHC Plan in November, the school did not provide Y with online learning as it had agreed.
41. On 9 December, the Council issued Y’s final EHC Plan with School 1 as the named setting.
42. Y started attending School 1 in February 2025.
43. In response to our enquiries, the Council said:

• it ensured provision was in place for Y in School A and that he was on the school’s roll with an adapted timetable of alternative provision and School A was funded through Y’s EHC Plan.
• it named a specialist school in Y’s EHC Plan in September, but Mrs X declined.
• School 1 (the alternative provision considered during Y’s early annual review) did not initially have school accreditation which was why it could not name the school in section I of Y’s EHC Plan prior to December 2024.

Mrs X’s Complaints

44. On 3 April, Mrs X complained to the Council. Mrs X said the Council failed to provide Y with the provisions in his EHC Plan, failed to hold an early annual review of Y’s Plan and failed to provide him with alternative provision since he stopped attending school. The Council did not respond to Mrs X’s complaint.
45. On 10 July, Mrs X made another complaint to the Council about its delays with its consultation process. Mrs X asked for an update as Y had been out of school for months. She said it was crucial for the Council to name a specialist setting in Y’s EHC Plan, so he could return to school in September.
46. On 2 August, the Council issued its stage 1 response to Mrs X’s complaint. The Council said it had consulted with some specialist schools including School 2 (Mrs X’s preference). The Council said although School 2 had said it could meet Y’s needs, but it was unable to name it in Y’s EHC Plan until it received other consultation responses. The Council explained this was because it had the statutory duty to consider the efficient use of its resources. It said once it received all the consultation responses, it would inform Mrs X.
47. Mrs X was dissatisfied with the Council’s response and asked it to escalate her complaint on 19 September.
48. On 2 December, the Council issued its stage 2 response letter. The Council:

• confirmed it considered alternative provision Mrs X requested in February for Y and it asked School A to arrange a review of Y’s EHC Plan.
• said after the early review of Y’s Plan, it made consultations with some specialist schools, and it named a specialist school in Y’s Plan in September which Mrs X refused. The Council said it subsequently consulted with School 1 in November which was then named in Y’s final EHC Plan.
• apologised for any poor communication with Mrs X.

49. Mrs X remained dissatisfied with the Council’s responses and how it dealt with Y’s case. Mrs X made a complaint to the Ombudsman.

Analysis

50. While there is no legal deadline to start alternative provision, councils should arrange alternative provision as soon as it is clear a child will be absent from school for health reasons for more than 15 days (consecutively or concurrently).
51. In this case, School A and Mrs X informed the Council in February 2024 of concerns about Y’s mental health and that he had stopped attending school for more than 15 days. The Council liaised with School A and considered alternative provision for Y in April, but this was not agreed until December 2024 when School 1 was named in Y’s EHC Plan. I find the initial delay to consider alternative provision for Y (February – April) and the failure and further delay in agreeing an alternative provision until December were faults. The Council failed to discharge its duty under section 19 of the Education Act. The Council’s faults meant Y was out of school and lost out on education from February to December 2024. This also caused distress, worry and frustration to Mrs X.
52. There was delay with holding an early annual review of Y’s EHC Plan after the Council was aware of Y’s case. Although I note the Council asked School A to arrange a review of Y’s Plan, the Council did not chase the school between February and May 2024 for it to complete the review meeting. This was approximately a three-month delay, and it was fault. This caused uncertainty and distress to Y and Mrs X.
53. The Council had four weeks from 24 May 2024 to send a notification letter to Mrs X about its early annual review decision. The Council should have issued its decision letter to Mrs X by 21 June. I note the review document indicated the Council would amend Y’s EHC Plan. However, the Council did not issue a letter to Mrs X setting out its decision to amend the Plan. This was fault and not in line with the statutory guidance. It caused uncertainty to Mrs X.
54. The Council did not make consultations with the specialist schools as agreed during the May 2024 review meeting until mid-July 2024. The Council’s delay was fault which caused further injustice to Y and Mrs X.
55. I find it was not entirely clear if the amended EHC Plan the Council issued in September 2024 was a final or draft Plan given the Council quickly committed to consider amending the Plan. In view of this, I am working on the basis Y’s EHC Plan remained in draft and appeal rights had not been engaged until December 2024 when Y’s EHC Plan was issued with School 1 as the named setting.
56. The Council should have issued Y’s final EHC Plan by 16 August 2024 (within 12 weeks of the review meeting) but the final Plan was issued on 9 December 2024. This was approximately 16 weeks delay and not in line with the statutory timescale. This was fault. Y was left without an up-to-date EHC Plan to reflect his needs, and it also caused uncertainty to Mrs X, and her right of appeal was delayed.
57. Councils have a legal duty to secure all the provision in section F of an EHC Plan. In this case, the Council failed to discharge its duty under Section 42 of the Children and Families Act 2014 to provide Y with the provision in his EHC Plan as set out in paragraph 27. This meant Y lost out on education, specialist support and the provision to meet his special educational needs from February to February 2025. This occurred over a significant period, and it was fault. It also caused Mrs X distress, worry and frustration.
58. I note the Council said Y was on School A’s roll with provision in place with an adapted timetable of alternative provision and School A was funded through his EHC Plan. But Y was unable to attend School A, due to his mental health and complex needs. Also, the Council agreed the funding in Y’s Plan could only cover one term at School 1 and when Mrs X raised her concerns about the negative impact it could have on Y, School 1 was not explored further. On balance, I find the Council failed to provide Y with suitable education which was available and accessible to Y and to meet his needs. This was fault. As a result, Y was left without education and specialist provision, and it caused Mrs X distress.
59. As regards the Council’s complaint handling, it did not deal with and respond to the complaint Mrs X made to it on 3 April. Also, the Council did not issue its stages 1 and 2 responses in line with its complaints procedure timescales. These were faults. I find the stage 1 response caused no significant injustice to Mrs X as it was a slight delay of 7 working days. But the stage 2 response should have been issued on 3 October after Mrs X’s escalation request on 19 September. The Council did not issue its stage 2 response until 2 December. This was approximately two months delay, and it was fault. It caused Mrs X distress and frustration.
60. We have recently made service improvement recommendations to the Council in other decisions about its duty to provide alternative provision under section 19 of Education Act 1996 and its duty to issue final EHC Plans within the statutory timescales. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made the same recommendations in this case. These identified issues are already being addressed through other cases we have investigated.
61. However, I have made additional service improvements in the ‘action’ section below to address the other failings identified in this case.

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Action

62. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Y and Mrs X to acknowledge the injustice caused to them by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• make a payment of £4,500 to Y to acknowledge the loss of education, alternative provision and specialist support caused by the Council’s failure to discharge its duties under Section 42 of the Children and Families Act 2014 and Section 19 of the Education Act 1996. This is calculated at £1,500 per term from February 2024 to February 2025 in line with our guidance on remedies
• make Mrs X a symbolic payment of £250 in recognition of the distress, worry, uncertainty and her delayed appeal rights caused to her by the Council’s failings as identified above
• ensure the Council deals with and responds to service users’ complaints in line with its complaint procedure and timescale.

63. Within two months of the final decision:

• ensure the Council issues its decision letter to amend an Education, Health and Care Plan within four weeks of a review meeting and indicate what the proposed changes are
• where the Council delegates the arrangement of annual reviews to schools, the Council should ensure it keeps an oversight of the review process to prevent any potential delays
• train relevant staff to ensure they understand and discharge the Council’s non-delegable duty under Section 42 of the Children and Families Act 2014 to provide a child / young person with the provisions set out in section F of their Education, Health and Care Plans.

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

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Decision

65. I find fault by the Council causing injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman