Summary: Mrs X complained about the Council’s handling of her son’s education. We found fault because the Council did not send formal documentation linked to appeal rights for his Education, Health and Care Plan when it should have done, it failed to properly consider its duties to deliver education when he could not attend school and communication and complaint handling were poor. This caused Mrs X and her son avoidable distress and uncertainty. To remedy this injustice, the Council will apologise to Mrs X and make a payment.

The complaint

1. Mrs X complains about the Council’s actions related to her son, Y’s, education, specifically that:
• it did not advise her of Education, Health and Care (EHC) Plan appeal rights in a clear or timely manner;
• it did not provide education to Y when he was unable to attend school;
• the Council has not provided financial assistance in replacement for free school meals (FSM) when Y was unable to attend school;
• communication from the Council has been poor overall; and
• it took too long to respond to her complaints.
2. Mrs X says this caused her avoidable distress, frustration and uncertainty. She also says this affected Y’s education.

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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. My investigation begins in February 2024 when the Council issued Y’s amended final EHC Plan.
8. My investigation ends in May 2025 when the Council sent its final complaint response to Mrs X.
9. I am not investigating any matters related to the naming of Y’s secondary school placement (School B) as this was something which could be appealed at the Special Educational Needs and Disabilities (SEND) Tribunal (the Tribunal).
10. I am not investigating any matters related to provision of education from September 2024 to February 2025 as School B was the subject of Mrs X’s appeal to the Tribunal during this time.
11. I am not investigating any matters related to Education Other Than at School (EOTAS) agreed as a result of the Tribunal process. Any complaints related to this have not yet been through the Council’s complaint process, so would be premature to us.

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How I considered this complaint

12. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

14. A child with special educational needs may have an EHC Plan. This 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 (Section B), education (Section F), or the name of the educational placement (Section I). Only the Tribunal or the council can do this. 
15. Section 14 of the SEND Regulations 2014 (the Regulations) states that when sending a final EHC Plan, councils must notify parents of their right to appeal about the EHC Plan, the time limits for doing so and information about mediation, amongst others. We refer to this as ‘the decision letter’ in this statement.
16. The council has a duty to make sure the child or young person receives the special educational provision set out in Section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. 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) 

General section 19 duty

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. [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 S19 or alternative education provision (AP).
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. 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))
20. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Available and accessible

21. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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)

What happened

22. I have set out below a summary of the key events. This is not meant to show everything that happened.
23. During the academic year 2023-2024, Y was in his final year at primary school and on roll at a mainstream setting (School A). Y had an existing EHC Plan in place before the period of my investigation.

2024

24. In mid-February 2024, the Council issued Y’s amended final EHC Plan. This named School A until Y finished his primary school education in July. It also named a secondary school (School B) from September 2024. Mrs X had previously indicated during the transfer process that her preference for Y’s school in September was School B.
25. The Council sent the EHC Plan in an email to Mrs X. The email gave information about mediation and appeal if she was unhappy with the plan. It added a hyperlink to click to find out more. It said any queries could be directed to the child’s caseworker at the Council. The Council did not send the decision letter at this time.
26. The majority of Section F in Y’s EHC Plan was designed to be delivered in a school setting where he would be supported by a range of school staff. This included full time one-to-one support, being greeted at the beginning of the day, supported throughout play and lunchtimes and a range of strategies designed to be used in and delivered at school and throughout the day in classes. The exception to this was occupational therapy (OT) which was to be delivered outside of the school setting.
27. On 10 May, School A advised the Council Y had not attended school at all that term since it had started on 15 April.
28. On 21 May, Mrs X sent the Council a psychiatric report on Y. The report stated:
• Y was suffering with health related burnout;
• he would require time off school to recover and this was likely to be months rather than weeks;
• he needed plenty of rest and quiet time during the day to reduce sensory overload and mental fatigue; and
• he needed a low-demand approach which would temporarily lower expectations and demands on him, including academic pressures and social obligations, to alleviate stress.
29. Mrs X communicated with the Council’s FSM team during July, August and September. She said she had received vouchers for the summer holiday period but wanted to know what could be done for September onwards. Mrs X asked what happened if a child was not on roll at a school and did not have EOTAS in place.
30. On 13 September, Mrs X emailed the Council to say Y was too unwell to attend School B, the school had said it could not meet his needs and she would not be registering him there. Mrs X wanted to formally request the Council change Section I of Y’s EHC Plan and if she did not hear back from it about this in five days she would register an appeal with the Tribunal.
31. Mrs X registered her appeal with the Tribunal at the beginning of October.
32. On 17 October, Mrs X registered a stage one complaint with the Council. Relevant to my investigation, Mrs X said the Council:
• did not answer emails;
• had not sent the EHC Plan decision letter in February when it should have done; and
• had not provided Y with any education since Easter 2024.
33. The Council acknowledged the complaint and quoted a response time of 20 working days. It said that if there was on ongoing appeal to the Tribunal, the complaint process may need to be stopped. If this was the case, it would advise Mrs X.

2025

34. The Tribunal process ended at the beginning of February 2025. The Tribunal issued a consent order on 20 February to say that Section I of Y’s EHC Plan should be amended. Y would now receive EOTAS.
35. Mrs X made her initial complaint to us on 19 March 2025.
36. The Council sent its stage one complaint response on 25 March. The response apologised for the delay. Relevant to this investigation, the Council said:
• officers tried to answer emails as soon as possible but if communications had been missed, it apologised;
• it apologised for the error in not sending the decision letter when it should; and
• it accepted the psychiatry report that Y should have a break from education and that subsequent conversations with Mrs X confirmed Y was not ready for school or tuition.
37. The Council ended its response by offering a remedy payment to the family. It offered £900 for each of two terms of missed education from September 2024 to March 2025. It also offered Mrs X £250 to recognise the anxiety and frustration caused to her and Y.
38. Mrs X escalated her complaint to stage two of the Council’s process the next day. She remained unhappy and commented on each of the points raised in paragraph 36.
39. The Council responded on 19 May 2025. It offered Mrs X a further £100 to reflect the time and trouble linked to the delayed stage one complaint response. The Council signposted Mrs X to us.

Analysis

EHC Plan appeal rights

40. When the Council issued Y’s amended final EHC Plan in February 2024, it sent it contained in an email to Mrs X.
41. The Council did not send the decision letter at this time when it should have done. In response to my enquiries, the Council confirmed it was sent to Mrs X and others affected at a later point when it realised its error. It said the date on the affected decision letters had been backdated to the date the EHC Plan was sent. The Council could not confirm exactly when the letter was produced and would have been sent.
42. The Council apologised for not sending the decision letter when it should have and for backdating the letter rather than using the date the letter was sent. The Council said this affected the dates mediation could be sought and an appeal could be made which caused injustice to those affected.
43. I agree with the Council’s assessment that not sending the decision letter was fault. However, I am satisfied there was no injustice to Mrs X. I consider the paragraph contained in the original email sending Y’s EHC Plan was sufficient to make her aware there was a mediation and appeal process and gave options as to how to discuss this further if she wished.

Alternative education when Y could not attend School A

44. In response to my enquiries, the Council said it was not aware until 10 May 2024 that Y had not attended school at all that term, since 15 April 2024.
45. The Council also referenced the report Mrs X sent it on 21 May 2024. It said the report made it clear that any AP was out of the question for Y and he needed time to recover from his burnout which the report had said would take many months.
46. The report states that Y would require time off school but does not state Y could not access any education or AP.
47. Whilst I note the Council’s comments to me, I have seen no recorded evidence of its discussions about or consideration of the report at the time. Therefore, there is no evidence of it considering whether it owed Y an S19 duty. Failure to evidence proper consideration was fault. This caused avoidable uncertainty for Mrs X and Y. I have made a recommendation below to remedy this injustice.
48. The Council has recently agreed to service improvement recommendations in similar but unrelated cases, linked AP. I will therefore make no further recommendations here.

Section F provision when Y could not attend School A

49. Evidence shows Y continued to access his OT provision during this time.
50. In response to my enquiries, the Council said School A made standard safeguarding checks of pupils on roll during this time.
51. There is no evidence of the Council organising or investigating whether it could deliver any of the school-based provision during this time. However, even on the balance of probabilities, I cannot say whether it is more likely or not that any provision the Council could have organised would be suitable for Y or accepted by Mrs X given his health difficulties at the time. Not investigating possible provision was fault. This caused avoidable uncertainty for both Mrs X and Y. I have made a recommendation below to remedy this injustice.
52. The Council has recently agreed to service improvement recommendations in similar but unrelated cases, linked to its Section F provision. I will therefore make no further recommendations here.

Financial assistance to replace free school meals

53. Y did not attend School B at any point. Mrs X did not register him there, so he was not on roll of any school from September 2024 onwards. If Y had attended School B, then he may have been eligible for FSM.
54. Y not attending School B was linked to the appealable decision to the Tribunal regarding Section I of his EHC Plan. Therefore, the potential loss of any FSM is a consequence of the decision to name School B. This was appealed at the Tribunal and is therefore not within our jurisdiction to investigate matters any further.
55. Any matters relating to FSM and equivalent vouchers linked to EOTAS have not been through the Council’s complaint process and are therefore not the subject of this investigation.

The Council’s communication

56. I acknowledge there is evidence of appropriate and timely communications between Mrs X and various officers and departments at the Council.
57. I asked the Council to send me copies of all communications between it and Mrs X. However, the evidence the Council provided does not include some of the emails Mrs X had already sent to us as evidence.
58. There are also emails from Mrs X asking for a response to her questions, but with no evidence of a response provided.
59. In December 2024, Mrs X had an email from an officer who said she was Y’s caseworker and had been since the beginning of September when his plan showed him as moving to School B. Mrs X was confused and unhappy as she thought Y’s caseworker was still the same person as when he was at School A and she should have been advised about the change. The Council’s later stage two response said that caseworkers had swapped over at the end of September 2024 and that it aims to advise parents of changes when it can.
60. The Council’s stage two response said the relevant officer was not aware of the supermarket voucher request but there are multiple emails between Mrs X and the free school meals team in the summer of 2024.
61. I am satisfied that on the balance of probabilities and considering the examples above, the Council’s communications could have been better. This is fault. It caused distress and uncertainty for Mrs X. I have made a recommendation below to remedy this injustice.

Responding to Mrs X’s complaints

62. In response to my enquiries, the Council said it had contacted Mrs X in November and December 2024 and February 2025 to apologise for the delay in responding to her stage one complaint of October 2024.
63. The Council explained the delays were due to capacity issues affecting its ability to respond in a timely manner. It said it accepted it could have done more to communicate more regularly with Mrs X and had offered a £100 financial remedy to recognise the distress and frustration this caused.
64. I agree with the Council’s assessment. Mrs X waited 111 working days for a response the Council said it would originally aim to send in 20 working days. The prolonged delay was fault. It caused Mrs X avoidable distress, frustration and uncertainty. The Council has already apologised to Mrs X for this but I consider the time and trouble payment was not sufficient to remedy the injustice caused. I have made a further recommendation below.
65. In response to my enquiries, the Council said there was a delay in responding to Mrs X’s stage two escalation. The quoted response time should be 20 working days, Mrs X waited 36 working days. The Council explained to me that capacity issues were also the cause of this delay. The late response was fault. It caused Mrs X avoidable distress and frustration. I have made a recommendation below to remedy this injustice.
66. I am not satisfied the £100 payment already accepted to recognise complaint handling delays is sufficient to remedy the injustice caused to Mrs X. I have made a recommendation below of an apology for the stage two delay and a symbolic time and trouble payment in addition to that already accepted.
67. The Council has recently agreed to service improvement recommendations in similar but unrelated cases, linked to its complaint handling. I will therefore make no further recommendations here.

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Agreed action

68. To remedy the injustice caused by the faults I have identified, the Council will take the following action within four weeks of the date of my final decision:
• apologise to Mrs X for the identified injustice;
• make a symbolic payment to Mrs X of £250 to recognise the distress and uncertainty caused by the identified fault; and
• make a further symbolic payment of £100 to recognise Mrs X’s time and trouble experienced during the complaints process. This is in addition to that already accepted by Mrs X.
69. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
70. Payments made are in line with the Ombudsman’s guidance on remedies.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman