Summary: We uphold a complaint the Council was at fault for not ensuring Ms G’s daughter had greater access to education, between April and October 2024. This resulted in a loss of provision. It also failed to answer Ms G’s first complaint about this matter putting her to unnecessary time and trouble. The Council accepted these findings and at the end of this statement, we set out actions it agreed to take to remedy this injustice.

The complaint

1. Ms G complained to us in March 2025 that the Council had failed to ensure her daughter, H, had access to a full-time education from January 2024.
2. Ms G said as a result both her and H experienced a significant negative impact on their mental health. In Ms G’s case she said her physical health suffered too, as she says neither the Council, nor H’s school, took seriously enough H’s needs. Ms G said H’s behaviours, arising from her having special educational needs, worsened because she did not receive education.

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The Ombudsman’s role and powers

3. 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)
4. 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. 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)
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. 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)
8. Under an 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 did and did not investigate

9. For reasons explained below, I only investigated the events covered by this complaint for the period January to mid-October 2024. The section headed “my approach to investigation” in the provisional findings below, explains why I decided I did not have the power to investigate later events.

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How I considered this complaint

10. I considered evidence provided by Ms G and the Council as well as relevant law, policy and guidance.
11. I also gave Ms G and the Council opportunity to comment on a draft version of this decision statement. I took account of any responses they made before issuing this final version.

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What I found

Relevant legal and administrative considerations

Special Educational Needs provision and EHC Plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the arrangements needed to meet those needs. The EHC Plan has sections, including Section F, which specifies the education provision needed by the child or young person. While Section I sets out their place of education, such as a school or college. It can also specify a child or young person receives education other than in school, known as ‘EOTIS’ provision.
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of the Plan (Section 42 Children and Families Act). The Courts have said the council owes the duty to arrange this provision personally to the child and it cannot delegate that duty. 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)  
14. The council must arrange for a review of the EHC Plan at least once a year. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process completes when the council issues a decision to amend, maintain or discontinue the Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). This should happen within four weeks of the review meeting. Councils must then issue the final amended EHC Plan within a further eight weeks.
16. There is a right of appeal to the Tribunal against:

• a council’s description of a child or young person’s special educational needs;
• the educational provision specified in Section F;
• the education setting named in Section I; and
• any amendments to these parts of an EHC Plan.

17. 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 they can appeal. 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.
18. The courts have said that if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, connected to, or could have been part of, the appeal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
19. So, if a child does not attend school, we must consider the reason for non-attendance. We must consider if it is linked to (or as a consequence of), a parent’s disagreement about the content of Sections F or I of an EHC Plan. If so, then we cannot investigate a lack of special educational provision, or alternative educational provision.
20. The period we cannot investigate starts from the date the Council makes its appealable decision and gives notice of that to the parent. If the parent appeals then the period we cannot investigate ends when the Tribunal makes its decision, or if the appeal is withdrawn or conceded.
21. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• a complaint about a failure to provide support in an EHC Plan, so long as we decide the cause is not connected to an appeal that has, or should have, happened; and
• complaints about alternative provision, if we decide the reason the child is not attending education is not connected to, or not as a consequence of, a matter that was, or could have been, part of an appeal to the Tribunal.  

22. 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 the fact a complainant does not have a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Alternative Provision

23. 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.(Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
24. The courts have considered the circumstances where the section 19 duty applies. Caselaw says the council has 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)
25. The Courts have also said 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])
26. Government guidance (‘Working together to improve school attendance’) says in very exceptional circumstances children may need a temporary part-time timetable to meet their individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is part of a re-integration package. It says a part-time timetable is not a long-term solution. 
27. Schools should notify the local authority of any cases where a child has reduced or part-time education. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review and aim to increase it, if a child's capacity to learn increases.
28. Where the council makes alternative provision, it must be full-time unless it decides 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)

Relevant Council policy

29. The Council has a Section 19 protocol. This sets out its approach towards considering the education needs of children out of school because of illness, exclusion or for other reasons. The protocol provides a summary of the law which I have summarised above.
30. The protocol says that when children are absent from school for reasons other than illness or exclusion, it will discharge its Section 19 duty as follows:

• it will ask the child’s school to arrange a multi-disciplinary team meeting to include its special educational needs service, one of its medical education coordinators, an Early Help worker and specialist advice from its SEND hub, if appropriate;
• the purpose of that meeting is to “ensure suitable education is on offer either through the school or by the school through the use of appropriate alternative provision for a fixed term with a focus on developing the child’s resilience and removing barriers to engagement and supporting a suitable reintegration to their local school or the school named within the EHC Plan”;
• it also encourages the use of an early review of an EHC Plan which will “look at the support required by the pupil to be able to successfully access education and provide recommendations for any adaptation their EHC Plan”.

31. The Council also sent us details of its Medical Educational Service (MES). It says this will support children absent from school for more than 15 days because of a physical or mental health need. It says that its role is to support schools with education and reintegration plans for children out of school. It says that its involvement also requires the child receives “specialist help” from a “recognised health professional”. The service also requires evidence from that professional setting out “what the child or young person can do from an educational perspective”.
32. If schools want support from the MES they must complete a specific form. The ‘SEND Hub Allocation Panel’ considers referrals weekly during term times. The MES says: “If the panel agree that the criteria has been met the school will be asked to organise a multi-disciplinary meeting where health, education and parents/carers will agree what the short-term medical education intervention will look like and how the school will meet the needs of the child or young person long term”.

Chronology of key facts

33. In January 2024, H was in primary education. She has special educational needs and had an EHC Plan naming a mainstream school.
34. By late January 2024, H stopped attending school because of anxiety associated with her special educational needs. Her school arranged for her to go on to a part-time timetable which it would review after six weeks. It also arranged for her to begin attending an alternative education provider for one day a week.
35. Council records show the school contacted H’s SEN Caseworker at the start of January, wanting to know if it had referred her case to an Education Psychologist. The school said it had understood the Council had agreed to this during the previous year. Email exchanges followed about this matter. But it was not until March 2024 the school told the Council that H was not in school and attended an alternative education provider one day a week. It noted Ms G wanted to increase that provision to two days, but the school did not agree, as the current alternative provision was not leading H to return to school. The school said it would contact the Council’s MES. Later, the Council commented on its understanding the school reviewed H’s part-time timetable and reintegration plan around this time and agreed to continue it for another four weeks.
36. In April 2024 the school arranged a review of H’s EHC Plan. As an outcome the review recommended that H switch to an EOTIS package. But meanwhile, the school would continue to make a part-time timetable and one day alternative provision available to H. An Educational Psychologist would also complete a review of H’s needs.
37. In May 2024 Ms G made a complaint to the Council saying it was failing to ensure H had access to a full-time education, so it was not fulfilling its section 19 Duty. Internal emails show council officers discussed if this was a complaint the Council should answer or the school.
38. In June 2024 the Council issued an amended draft EHC Plan. It noted Ms G had asked for EOTIS provision for H. It told her that it would consider this request at a panel. But the Council said it needed further information first.
39. During June and into July, the Council delayed finalising the Plan. It waited for the report from the Educational Psychologist. Ms G also let it know she had commissioned private reports from an Occupational Therapist and medical professional who provided an updated diagnosis for H. All three reports did not complete until July.
40. Meanwhile, the school continued to correspond with the Council and let it know that it did not consider H would return to school. It expressed frustration at keeping her school place open. It said it had spoken to the MES which had told it, that it would only become involved as part of H reintegrating into the school. The school decided around this time to cancel H’s placement with the alternative provider, from the end of the school term. Ms G told the Council about this decision straight away.
41. Over the summer period the Council asked Ms G more about the EOTIS package she wanted. It had scheduled to discuss this at the beginning of September 2024 but internal emails show it ran out of time to do so, at the first meeting of the new term.
42. The school continued to correspond with the Council. It said that it had taken steps recommended by the Educational Psychologist. It had offered that H only come into school for a short time at the end of the school day. But that H refused to come in, and when school staff visited the home to make welfare checks, H would also refuse to meet them, meaning they only saw her briefly.
43. At the beginning of October 2024, the Council panel refused to agree EOTIS provision for H. It said the school should call a multi-disciplinary meeting. The view of its MES was there was no evidence showing a medical reason for H’s absence from school. And that therefore the school should follow the “part-time timetable protocol”. It should also consider referring H’s case the Council’s SEND Hub and consider “voluntary support” options to encourage school attendance. It said if those measures did not result in H returning to school, it should contact the Council’s Attendance and Enforcement Officer.
44. Shortly after the panel decided this, the Council issued a final amended EHC Plan for H. This continued to name the mainstream school in Section I.
45. Later in October 2024, the school wrote back to the Council to say that it had the duty to provide H with education under Section 19, not the school. The school said it could not provide H with the education set out in her EHC Plan.
46. In November 2024 Ms G appealed the content of H’s EHC Plan. There were also emails exchanged with a paediatrician working with H. The Council reiterated its view that it lacked evidence of a medical reason for H’s absence from school.
47. In December 2024 the school arranged a further review of H’s EHC Plan. And around a week after the review meeting, there was a mediation meeting involving Ms G, the Council and school. Within a week of the mediation, the school wrote to Ms G saying that it would try and arrange more alternative provision for H in line with what the meeting agreed. And a few days later it sent an email to an alternative provision provider asking about availability and so on.
48. In January 2025 the school wrote to the Council repeating its understanding that it needed to make more alternative provision available for H. It said it wanted a meeting with the Council to discuss. At the end of the month the Council wrote to the school saying the ongoing review of H’s Plan “does not prevent the school from commissioning an alternative provision for [H] […]”.
49. In response the school suggested it would send “known staff” to see H at home three times a week. Then, it said it would make available three hours a week provision at a different primary school, which is part of the same Academy group.

Ms G’s complaint

50. As noted above, Ms G first complained to the Council in May 2024, saying it had not provided H with access to a full time education in line with its Section 19 duties. It said she had not attended school since late January 2024.
51. In November 2024 Ms G wrote again to complain to the Council. She said H did not receive education in line with her EHC Plan. She said the Council had wrongly re-directed her complaint made in May 2024 to the school.
52. At the end of the month, the Council replied to Ms G’s complaint. It went over events between January and September 2024, explaining what provision H’s school had made for her. It said the school’s withdrawal of alternative provision in September, followed the Council telling the school it had “not exhausted all voluntary support and attendance processes”. The Council set out its view that it did not consider the evidence showed “no school” could meet H’s needs. It also set out its understanding that H currently accessed the school for one hour a week.
53. Ms G asked to escalate her complaint in December. She set out again her understanding the Council had misdirected her complaint in May to the school. She clarified H did not attend the school at all. She sent a further email in January 2025, saying H still did not have access to suitable education. Ms G stated she wanted EOTIS provision for her.
54. The Council replied in January 2025, apologising for some delay in its response. It said that it could not review the content of H’s EHC Plan as part of a complaint investigation. So, it did not consider it could achieve any different outcome for Ms G by further investigating her complaint.
55. Ms G made her complaint to this office in March 2025, and we accepted it for assessment, noting the Council had given Ms G its final reply to her complaint.

Findings

My approach to investigation

56. I decided that I could only investigate the events covered by Ms G’s complaint up to the day it issued an updated final EHC Plan for H, in mid-October 2024. From then on Ms G had the right of appeal to the Tribunal about the content of the Plan. In particular about the education provision H would receive and the Council naming her school in the Plan, rather than EOTIS provision. Ms G went on to use that right.
57. That precluded us taking any view on the content of the Plan and Ms G agreed this. However, she asked us to consider if that also precluded us taking a view on what happened from December 2024 onward when the Council asked the school to make alternative provision for H. Ms G said that did not happen, and that while the school did later offer some education provision for H away from its buildings, she considered that both inadequate and unsuitable. So, H remained without access to a full-time education.
58. I found I could not separate the question about whether the Council should have ensured H had access to alternative provision between December 2024 and March 2025, from the dispute then before the Tribunal.
59. I would have welcomed greater clarity of record keeping by the Council to explain fully why it intervened in December 2024 where it clearly asked the school to make some alternative provision for H. But on balance, I did not find this suggestion was an acknowledgment that it accepted it had a duty to H under Section 19. My reasons were as follows:

• first, H’s continued absence from school, after the issue of her October 2024 Plan, was because of the anxiety associated with her special educational needs. The Council did not consider that a medical reason for her absence. While Ms G did not agree with that view, I could not find the Council at fault for reaching it, given in had weighed the evidence provided, including from a paediatrician;
• second, it was therefore consistent the Council defended Ms G’s appeal between December 2024 and March 2025. It considered the school named in H’s Plan was available and accessible to her;
• third, I did not find it inconsistent the Council went on to ask the school to make alternative provision available for H in December 2024. It is evident throughout the events covered by the complaint, the Council considered H needed adjustments to attend school. I considered that could extend to asking the school to make some more alternative provision available to H to aid her return and reintegration.

Findings on the period January – October 2024

60. I did not find H’s school told the Council, when H first stopped attending school full-time and it placed her on a part-time timetable in January 2024. That was not a fault by the Council. But I noted it, as I considered one learning point from this investigation should be that the Council try to ensure the school knew of its responsibility to tell it where this happened. The Council has agreed to an action I recommended further to this finding, which I set out in the section headed “agreed action” below.
61. The Council did not know of H’s absence from school before March 2024, therefore. When it learnt H was not in school full-time, it needed to explore the reasons and what needed to happen to enable her to access full-time education. Its Section 19 protocol set out a series of actions to address these matters. However, I found only one of the measures referred to in paragraph 30 happened, that of a review of H’s EHC Plan. I was unsure if that was an “early review” as envisaged in the policy, or the annual review of H’s Plan that fell due. But as it was in any event a review of H’s Plan nothing turned on this distinction.
62. I considered it evident from what happened next, the Council thought it needed more information to understand the reasons behind H’s continued absence from school. So, it decided to wait for a report from an Educational Psychologist. I found this understandable. And clearly, Mrs G wanted more understanding of her daughter’s needs also, as she privately commissioned reports from an Occupational Therapist and medical professional.
63. I therefore had some sympathy for why the Council did not issue a final amended Plan within 12 weeks of H’s review. But this timescale is a hard target set in law, and not an aspirational one. So, I had to find it at fault for the delay in issuing H’s final plan following the April 2024 review.
64. In addition, I noted H’s school understood the Council intended referring her case to an Educational Psychologist much sooner. And by the end of July 2024, the Council had all the specialist reports to inform the Plan. So, not all the delay arose from waiting on those reports. I set out my thinking on the injustice caused by the Council’s fault below, after setting out my findings on H’s access to education after January 2024.
65. It followed from what I said above that I did not think before April 2024 and the review of H’s Plan the Council should have intervened. But after that time, before it could finalise its amended Plan for H, it should have turned its mind to the education provision she was receiving. It knew following the review that H had limited access to education. She had been on a part-time timetable for around three months, something the Government makes clear should only ever be a short term option. But H had not attended school in line with that part-time timetable and reintegration efforts had stalled. H did attend an alternative provider, but for only one day a week. So, the Council knew that H was not receiving full-time education, nor anything close to that.
66. The Council’s protocol suggests an appropriate response would have been for the Council to ask the school to arrange a multi-disciplinary team meeting. This would have had a wider attendance than those attending H’s review of her EHC Plan. And the purpose of such a meeting would have been to focus on H’s need for suitable education provision in the short term. But no meeting happened. And I note here that neither its SEN officers, nor its MES, advised the school on this approach.
67. More widely, between April and October 2024 the records did not show the Council making efforts on its own initiative, or in collaboration with H’s school, to ensure she had a greater access to education. That was a fault.
68. I considered the result of this fault was that H missed education provision. I arrived at this view after considering what choices the Council had during this time. It could have looked at measures to try and improve H’s school attendance or put more alternative provision in place for her. While I considered the evidence showed H’s school attendance would not have improved whatever efforts the Council made, I cannot say the same about alternative provision. Because the evidence showed H did largely attend that when it was available to her. Without the Council having more advice about how to re-integrate H to school, I considered it should have explored this. And there is no reason for me to assume that if offered H could not have managed a full-time provision or equivalent.
69. I therefore asked the Council to remedy this injustice by following the approach set out in our guidance on remedies (Guidance on remedies - Local Government and Social Care Ombudsman). This explains that we use a tariff in such cases, to a maximum of £2400 a term. I did not consider the maximum sum appropriate or proportionate after noting H’s age and that for some of the time under consideration she had access to alternative provision one day a week. I therefore recommended a symbolic payment based on a tariff to £1800 a term. I considered the lost provision extended for something approaching a term and a half. This included all the summer term 2024 and part of the autumn term, before the Council gave H a new EHC Plan.
70. I then went back to consider the injustice arising from the delay in issuing that Plan. I had no reason to suppose that but for the delay the Council would have named a different setting in Section I. This was because the delay arose in part so it could consider the EOTIS alternative, which it went on to reject. In which case, I had no reason to find Ms G would not have appealed. The Council’s actions therefore delayed her appeal rights taking effect.
71. In some circumstances we would recommend a symbolic payment to reflect the understandable distress caused. However, I did not think that appropriate here. This was because the symbolic payment to reflect H’s lost education provision was higher because of the delay in finalising her Plan. I considered recommending both payments, would result in asking the Council to remedy the impact of the delay twice, which would be unfair.

The Council’s complaint handling

72. Finally, I considered the Council’s complaint handling in this case. I found it at fault for failing to answer Ms G’s complaint made in May 2024. Emails suggested its officers considered this might have been for the school to answer, as Ms G understood. If so, this was inappropriate. Ms G made clear her complaint was with the Council. Even if the Council believed the matter complained about was one where it had no responsibility, and that Ms G should re-direct her complaint to the school, it should have answered in those terms. But as it was it offered her no response.
73. This failure caused a separable injustice to Ms G. She was put to unnecessary time and trouble in escalating her complaint. The Council agreed to remedy this by making a further symbolic payment in line with our guidance on remedies.

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Agreed Action

74. To remedy the injustice I found caused to Ms G and H by the Council’s fault, it agreed that it would, within 20 working days of this decision:
1. provide an apology to Ms G, accepting the findings of this investigation. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council agreed to consider this guidance in making its apology;
2. make a symbolic payment of £2700 to Ms G. Of this, £2500 was for H’s lost provision following the approach set out in paragraph 68, and £200 for Ms G’s time and trouble as set out in paragraph 73.
75. The Council also agreed it would contact H’s former primary school and remind it of the need to inform the Council in the event of pupil absence and it placing children on part-time timetables. The Council agreed to do that also within 20 working days of this decision.
76. The Council agreed it would provide us with evidence when it had complied with the above actions.

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Final Decision

77. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Ms G and H. The Council agreed to take action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman