Summary: The Council was at fault for failing to maintain oversight of Ms X’s child Y’s educational provision from October 2023 to April 2024. It has already made a symbolic payment in recognition of the avoidable frustration and uncertainty caused which was in line with our guidance. It will apologise to Ms X and Y to acknowledge the frustration caused as a result of its fault.

The complaint

1. Ms X complained that the Council:
1. failed to provide the special educational provision outlined in section F of her child Y’s Education, Health and Care (EHC) Plan or suitable alternative provision from October 2023 onwards.
2. provided a vague response regarding the use of Y’s funding. Ms X also complained that its complaint investigation was not objective and biased towards Y’s school.
2. Ms X said as a result, Y’s education and wellbeing suffered as did Ms X’s finances and wellbeing.

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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. 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.
5. 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)
6. 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

7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. Ms X complained to us in March 2025 about matters that first started in October/November 2023. However these matters were ongoing and continued into our 12-month period therefore I have investigated Ms X’s complaint from October 2023 until the Council’s stage two complaint response in November 2024.

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How I considered this complaint

10. I spoke to Ms X about her complaint.
11. I considered evidence provided by the Council as well as relevant law, policy and guidance.
12. Ms X and the Council had an opportunity to comment on the draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plan

13. 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.
14. The EHC Plan is set out in sections which include section F: The special educational provision needed by the child or the young person. 
15. Councils have a legal duty to make sure a child or young person receives all the special educational provision set out in section F of their EHC plan (section 42(2) of the Children and Families Act 2014).
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 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 education 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. (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 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)
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
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 its functions on its behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure its duties are properly fulfilled.

Education support for medical absence

24. The Council’s policy for Education support for medical absence (ESMA – a teaching service for students unable to attend school for medical reasons) states that referrals to this service are made by schools and with parental consent.

What happened

25. This section sets out the key events in this case and is not intended to be a detailed chronology.
26. Ms X’s child Y is of secondary school age and has special educational needs (SEN). Y was electively home educated until July 2023 when they went on roll at a school.
27. In October 2023 the Council issued Y’s first EHC Plan. It named the school they were on roll at as parental preference in section I of their EHC Plan. The Council said it named this school prior to receiving the school’s response to its consultation. Section F of Y’s EHC Plan set out a school integration plan, school-based provision and strategies, and support from key school staff.
28. In November 2023:

• the Council issued an amended EHC Plan which added further detail to section F of Y’s EHC Plan. This section stated that if Y was not accessing school, then a designated key worker from their school would start with one visit a week for 30 minutes to Y’s home or another agreed location (during an afternoon), building to one hour. Then adding another day and increasing it as appropriate with a view to enabling Y to access the school setting.
• the Council was copied into correspondence between Ms X and Y’s school. This correspondence confirmed that Y was not attending school.
• the Council met with Ms X and the school regarding Ms X’s concerns about the school’s consultation response that it could not meet Y’s needs, and to explore how alternative provision could be accessed where necessary.
• Ms X requested Education Other than At School (EOTAS). The Council responded and said EOTAS could only be agreed if no other school could meet Y’s needs. It said Y’s named school was able to meet their needs and was responsible for providing Y with an education. Further, only the school could make a referral to ESMA - a teaching service for students unable to attend for medical reasons.
• Y’s school offered to refer Y to ESMA. The Council said Ms X did not take up this offer as she did not feel Y was ready to access online provision at the time. The Council later added that Y’s school should have pursued this referral again at a later date.

29. In December 2023 Ms X contacted the Council and enquired about arranging alternative provision through a provider for September 2024. The Council said if Y’s school wanted to commission this provider then they would need to make a referral to this provider directly as they were responsible for Y’s education. Y’s school refused to arrange this alternative provision because the setting was not Ofsted registered.
30. From January 2024, the school visited Y weekly at home on five occasions to build a rapport and to support their return to school. Y’s school said its visits were not sustainable due to distance and appropriate staffing issues, so it arranged external mentoring support for Y with the aim of familiarising and bringing Y to school. Y received two, three hours mentoring sessions per week.
31. In April 2024 the Council was contacted to request its attendance at an early annual review meeting for Y that Ms X had requested. Ms X had raised concerns that section F provision of Y’s Plan was not being delivered. The Council replied and said Y’s EHC co-ordinator had left and that it did not have capacity to attend the annual review meeting at a short notice. It asked Y’s school to hold the meeting in its absence but said this did not happen.
32. In May 2024, in response to an email from the Council, Y’s school confirmed Y was not attending school, was being supported with mentoring sessions and Ms X had requested an emergency annual review but there was no new advice to add to the EHC Plan that was issued in October. The school did not consider it could meet Y’s needs. The Council responded and asked Y’s school to hold an emergency review to discuss the next steps and to provide an overview of the provisions the school had put in place for Y.
33. The school explained the mentoring it had arranged and that it hoped the mentor could start talking to Y about school and make progress towards slow desensitization. The school said it had offered maths and english tuition. But in an email to the school Ms X said Y did not remember saying they would like to try a tutor and Y had now said they did not want to. The school said it also spoke to Ms X about another educational setting which she said Y would not like and which was not suitable.
34. In June 2024 an emergency annual review for Y was held which the Council attended. The minutes of the annual review meeting showed that Y was continuing to receive mentoring from different providers. Ms X also suggested a bespoke package from a different alternative provision provider for Y in addition to the existing mentoring sessions.
35. In July 2024 Ms X suggested an alternative provision provider to the school. The school told Ms X that the alternative provision provider she had suggested was not Ofsted registered and therefore provision could not be agreed and it would continue to explore other options. The Council told the school that it was lawful to provide up to 15 hours of alternative provision without Ofsted registration and referred the school to the relevant guidance. There was no evidence seen that showed the school further explored this provision.
36. Ms X complained to the Council that the school was not providing Y with a suitable education and the special educational provision listed in their EHC Plan. She said Y’s school should have continued to visit Y at home as per their EHC Plan and that she did not want to move Y to another school as suggested by their school. She also complained that the provision/mentoring Y had received cost much less than the funding the Council had provided to Y’s school for provision to meet their needs. She also complained she had not been kept updated.
37. The Council, in discussion with another service, agreed to contact another provision to work with Y and their school. It arranged a meeting with Ms X and Y for October 2024 to discuss educational and other provisions which Y did not attend.
38. In August 2024 the Council issued a stage one complaint response. The Council apologised that it had not informed Ms X that Y’s EHC co-ordinator had left. It outlined steps it would take to improve communication with families. It also said:

• Y’s school provided mentoring to replace its visits, which Y had accessed since March 2024. Discussions were being held with Y’s mentor to support their re-engagement with school with a view to them spending time with a key worker on a weekly basis.
• referrals for a teaching service, tutoring and placement at another school were discussed but Ms X and Y did not agree to pursue these.
• Y was receiving six hours of mentoring support weekly in addition to further weekly mentoring sessions from another provider from June 2024. It said it was noted at the annual review meeting that Y had made good progress and that their mentor would continue working with them to support re-engagement with school.
• it was satisfied that Y’s school had taken steps to support the provision in Y's EHC Plan and that Y was continuing to access alternative provision via mentoring.
• while it was the Council’s responsibility to ensure pupils with an EHC Plan receive a suitable educational provision, it was “not always able to resolve all issues with school.” It said that if Ms X felt the Council had not resolved issues with Y’s school then it was open to her to complain to the school directly.

39. In September 2024 Ms X escalated her complaint.
40. In November 2024 the Council issued a stage two complaint response. The Council:

• apologised for not responding to Ms X sooner.
• explained that while Y’s school had refused to offer two alternative provisions chosen by Ms X, it had offered provision via a referral to ESMA, tutoring sessions and weekly mentoring.
• said that the school should have followed up the referral to ESMA it had offered in November 2023. The Council accepted that Y had not been offered alternative provision until May 2024. It apologised for failing to maintain oversight of Y’s provision since their EHC Plan was issued in October 2023.
• stated that Y’s school was working with another setting to discuss a suitable package of educational and other provision for Y. Y’s EHC coordinator would also work with their school to obtain Y’s views and maintain oversight of their education.
• its SEN information advice service had liaised with Y’s school to advise that clear outcomes should be set for any provision, with six weekly reviews and weekly report and communication around attendance. Y had not accessed any additional provision (other than mentoring) to review and progress.
• it had not completed a section F checklist review as per Ms X’s request in a timely manner for which it apologised. It said the completed review had shown that Y had not received provision as per section F of their EHC Plan because they were not attending school. It offered Ms X £2200 to recognise the impact of the loss of educational provision between October 2023 and May 2024. It also offered Ms X £100 to acknowledge the distress they were caused and the time and trouble Ms X was put to in pursuing her complaint. The Council sent us evidence it had made this payment to Ms X.
• Y’s school had not been more proactive in their attempts to maintain communication with Ms X and Y for which it apologised. It reassured Ms X that the school had been reminded about their responsibilities in reporting attendance and maintaining communication.
• explained that the cost of outsourced mentoring services (£1500 per month) provided to Y by their school exceeded the top-up higher needs funding the Council had allocated to Y’s EHC Plan.

41. In February 2025 Ms X requested an EOTAS package for Y which was agreed in April 2025.
42. In March 2025 Ms X complained to us. She complained that the Council had not provided section F of Y’s EHC Plan and when she had requested a section F checklist review to understand how Y’s funding has been used, the Council’s complaint investigation had not investigated the matter properly. She also complained that the Council had solely relied on evidence the school had provided.

Council’s response to our enquiries

43. In response to our enquiries, the Council said it considered Y’s school to be accountable for implementing the educational elements of their EHC Plan. It said Y’s school tried to put appropriate provisions in place in line with their needs. It first offered a part timetable in the Autumn 2023 school term and when that did not work, it offered to refer Y to ESMA. It also provided mentoring to Y with the aim of familiarising them with school so that they could build up to weekly sessions in the school setting with their key worker.
44. The Council acknowledged that there were gaps in Y’s provision after they received their EHC Plan in October 2023 and that it had not kept oversight of the provision. It said that it had no indication from either Ms X or Y’s school regarding the adequacy of Y’s provision until April 2024.
45. Regarding its section 42 duty to provide section F provision of Y’s EHC Plan, the Council said it fulfilled this duty through naming Y’s school in their EHC Plan which is what Ms X and Y had wanted.

Findings

46. The Council was aware that Y was not attending school in November 2023, but it considered that education was available for Y at the school named in their EHC Plan and that the setting was suitable to provide section F of Y’s EHC Plan. It arranged a meeting with Ms X and Y’s school in November 2023 to ensure all parties were able to work together to enable Y to access their educational provision in school. This meant that the Council did not consider it owed Y a section 19 alternative provision duty and it discharged its section 42 duty through naming the school in Y’s EHC Plan.
47. However, the Council should have maintained oversight of Y’s education. It did not do so. Therefore, it missed opportunities to review the adequacy and efficiency of existing provisions and to intervene where necessary to ensure Y’s school took correct and proactive steps to provide Y with a suitable education that was appropriate for their needs.
48. The Council accepted it did not maintain oversight of Y’s education until April 2024 and that Y had not been offered tutoring until May 2024. This was fault that caused Ms X and Y frustration and uncertainty. I cannot say, even on the balance of probabilities, what more or different provision Y would have received if there was no fault by the Council during this period.
49. Evidence showed that in April 2024 the Council asked Y’s school to complete an emergency annual review to discuss the next steps required to provide provision for Y. Y’s school also contacted Ms X about tutoring in May 2024 and evidence showed Ms X replied saying Y did not want this. The Council also met with other professionals working with Y in July 2024 and arranged for Ms X, Y, their school and another setting to work together with a view to reintegrate Y into an educational setting. When this did not work, the Council agreed to an EOTAS package.
50. The Council maintained oversight of Y’s provision from April 2024 onwards and worked with Ms X, Y, their school and other relevant professionals and provision settings to find a suitable package of provision, with the aim to reintegrate Y back into education. It was not at fault.
51. The Council offered Ms X a symbolic payment of £2200 to acknowledge the impact of the loss of education between October 2023 to May 2024. The Council’s offer was an appropriate remedy in line with our guidance.
52. We recently recommended that the Council make service improvements on similar matters on other cases. Therefore, I have not considered it necessary to repeat these or make further service improvement recommendations on Ms X’s complaint as we will continue to monitor it through our case work.
53. The Council explained in its complaint response that the cost of Y’s mentoring paid for by their school exceeded the funding it had allocated to the school to deliver Y’s provision in their EHC Plan. There is nothing further our investigation could add to the Council’s investigation and explanation of the matter.

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Agreed Action

54. Within one month of this decision the Council will apologise to Y and Ms X for the avoidable frustration and uncertainty they were caused by its fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
55. The Council will provide us with evidence it has complied with the above action.

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Decision

56. I found fault causing injustice and the Council agreed action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman