Summary: Mrs F complained the Council delayed issuing an education, health and care plan and failed to provide education or alternative provision and special educational needs provision for her son. We found fault. The Council has agreed to make a payment to remedy the injustice caused.

The complaint

1. Mrs F complained the Council failed to put in place provision required under her son’s education, health and care plan, failed to issue a new plan following an emergency annual review in March 2024 within statutory timescales and failed to provide any alternative provision for almost a year.
2. Mrs F says this has had a detrimental impact on her son’s academic ability, wellbeing and mental health and has caused significant distress to the family.

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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. 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)
5. 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.
6. 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)
7. 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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How I considered this complaint

8. I spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries and relevant law and guidance.
9. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

10. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. Section 42 of the Children and Families Act 2014 says councils are responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.

Reviewing EHC Plans

13. The council must arrange for the EHC plan to be reviewed 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 is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC plan. This must happen within four weeks of the meeting. (Section 20(10) SEND Regulations 2014 and the Code paragraph 9.176)
14. 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, including copies of any evidence to support the proposed changes. (Section 22(2) SEND Regulations 2014 and the Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
15. Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement. The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.
16. Case law has established that councils must issue the final amended EHC plan within a further eight weeks of the amendment notification, i.e. within 12 weeks of the review meeting.

Alternative 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
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 law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
20. The statutory guidance “Arranging education for children who cannot attend school because of health needs” says when reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.
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. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation.
23. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
24. The Courts have found that 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])

What happened

25. I have set out the key events. This is not meant to detail everything that happened.
26. Mrs F’s son, J, has autism and global developmental delay which give him special educational needs. He has an EHC plan and was attending a mainstream secondary school.
27. At the start of Year 8, in September 2023, J was struggling to attend due to anxiety. Mrs F says he would not leave his bedroom, would not speak and would not get dressed for school. She spoke to the School and J’s GP who wrote a letter for the school in October 2023. This said there were days that J refused to attend school. A referral was made to mental health services.
28. The School tried strategies such as reduced timetables, soft starts, and attending one off lessons. In January 2024, the School told Mrs F it would consider what other support it could offer, seek advice from autism and SEND support services and ensure J’s absences were coded appropriately; at that stage they had been unauthorised.
29. Mental health services rejected the referral in February following a multi-disciplinary discussion. They said J’s “low mood at home is likely impacted by there being no suitable education provision in place” so the primary need was finding an education placement. They recommended an early annual review be held.
30. J stopped attending school completely from 4 March. The School met the SEND support service to discuss possible solutions for school avoidance. It arranged an annual review meeting and made a referral to the autism support team for further advice.
31. The annual review meeting was held on 27 March. It noted J’s low attendance that year and recommended changes be made to his EHC plan. Mrs F asked for a new mainstream school to be named in the plan (School X) as this had specialist provision attached.
32. Mrs F emailed the Council on 22 April advising that J had stopped attending school.
33. The School sent the report of the annual review to the Council on 1 May. The Council said it then had four weeks to decide whether to amend the EHC plan.
34. The School got advice from the SEND support service and in May it agreed with J and Mrs F that J would attend art therapy sessions at school. It was hoped that J may then agree to stay on at school for some other lessons. A referral was made to occupational therapy.
35. There was a preparing for adulthood meeting on 10 June. This said J would attend art therapy sessions in Year 9 and start attending school gradually in Year 10 on a reduced timetable.
36. The autism support team visited the School and met J. In July they suggested art therapy, a digital mental health programme, and that a sensory programme be developed.
37. In September, the art therapy sessions continued but J did not attend any other lessons. The therapist said J needed a “targeted piece of work” to enable him to attend school.
38. Mrs F contacted the Council. She says the Council then realised it had not completed J’s annual review from March. The Council said that it would require medical evidence to consider J’s provision.
39. There was a meeting between the School, the Council’s school attendance team and Mrs F on 16 September. Mrs F said the School had not sent any work home and J had now refused to attend any more art therapy sessions. The meeting suggested that J attend one class a week but Mrs F says following the meeting, J refused to attend.
40. Mrs F asked the School to make a referral for medical tuition. It said this would require medical evidence.
41. Mrs F told the Council she wanted J to attend a specialist school. It asked her to submit evidence to be considered by its provision panel. The Council said it was for the School to offer interim provision.
42. Mrs F continued to contact the School, Council and various services seeking support for J. The medical tuition provider said it could not take J as his absences were unauthorised and there was no medical evidence. The mental health team then accepted the referral and added J to its waiting list.
43. The Council issued a draft EHC plan on 8 October. Mrs F submitted comments, asked for a specialist school (School Y) to be named and asked for a personal budget for online mentoring.
44. The Council spoke to Mrs F on 8 November. It agreed to fund online mentoring and discussed possible online tuition for J. Mrs F told the Council that the School was now authorising J’s absences.
45. On 29 November, the Council told Mrs F that the provision panel would consider J’s case in the next six months. If she wished to go to Tribunal, it would need to finalise the EHC plan naming J’s current school.
46. Mrs F made a formal complaint on 17 December that J had not had any education or SEND provision since February 2024. She says that shortly after submitting the complaint, she was advised that the provision panel would consider J’s case that week.
47. The panel decided that J’s needs could be met in a mainstream setting. It noted that J’s mental health had stopped him attending school since March 2024.
48. A further draft EHC plan was issued and the final plan was issued on 6 January 2025, naming the School.
49. The Council’s complaint response of 17 January 2025 said:
• J’s absences had not been authorised by the School.
• SEND provision could not be made as J was not in school.
• An early annual review could be arranged.
• “As the School was named in EHCP it’s their responsibility to deliver the provision … [school does not have any] medical or professional evidence substantiating that J is unable to attend … responsibility for alternative provision rests with the school commissioning the placement; this includes commissioning alternative provision via the Local Authority’s provided placements or when making their own arrangements.”
50. Mrs F asked to escalate her complaint. The Council’s final response on 28 February said:
• The Council accepted it had not met the statutory timescales for issuing the EHC plan after the March 2024 annual review. Nor had it consulted with School X about the draft plan. It apologised for this and offered Mrs F £400 to remedy the uncertainty and stress caused.
• The School had not told the Council it could not meet J’s needs or make the SEND provision set out in his plan.
• It did not uphold Mrs F’s complaint about the School not authorising J’s absences.
• “The responsibility for commissioning and ensuring the suitability of any alternative provision rests with [the School], whether they choose to utilise Local Authority options or make their own arrangement. … I appreciate you have submitted preferences regarding alternative provision, including access for [mentoring]. Discussions around this provision should be directed to the setting, as they are named in Section I of J’s EHC plan and hold responsibility for commissioning and overseeing such provisions.”
51. Mrs F appealed to the Tribunal about the EHC plan; she wanted School Y to be named. The Council then agreed to name another specialist setting in J’s plan, which J was to start attending from September 2025.

My findings

52. The law is clear that councils must intervene and provide education under their section 19 Education Act 1996 duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively. This means that once the Council was alerted to J's absence it needed to consider its legal duties and take action where appropriate.
53. J stopped attending completely on 4 March 2024. I have not seen evidence that the School told the Council this. However, Mrs F emailed the Council on 22 April 2024 advising that J had stopped attending.
54. At this point the Council should have considered whether the School was providing a suitable education, for example if the School was providing work for J to do at home. Even if the School had been sending work home for J, Government guidance says this may not be a suitable education. If the Council concluded that J was receiving a suitable education but was not attending, it needed to consider whether attendance should be enforced.
55. The Council should also have worked with the School to develop and review a reintegration plan as appropriate and determine if it owed J a section 19 duty to make alternative provision.
56. The annual review meeting in March 2024 gave an opportunity to consider how J’s EHC plan provision could be delivered, given that he was not attending school. The report from this should have been submitted to the Council by mid-April but was not sent until 1 May. The Council said it had four weeks from receipt of the annual review report to decide whether to amend the EHC plan. This is wrong, the Code says the Council’s decision must be made within four weeks of the review meeting. If the report is received late, the Council must make a decision as soon as possible.
57. I have seen no evidence the Council considered whether any education was being provided, what J's educational needs were, how these were being met or whether that education was available and accessible to J. Nor have I seen evidence it worked with the School to develop a reintegration plan or to review any reduced timetable. This is fault.
58. However, my view on the balance of probabilities is that even if the Council had considered whether it owed J a section 19 duty at this stage, it is likely it would have concluded it was necessary to see if a reintegration plan worked before making alternative provision. I say this because the School was seeking advice on how to support J and the statutory guidance encourages councils to support reintegration. So I do not find that the failure to decide if there was a section 19 duty in May 2024 led to a loss of alternative provision or SEND provision during the summer term 2023/24.
59. In the autumn, Mrs F advised the Council it had not yet issued a decision letter or amendment notice following the annual review. The Council has accepted this was fault. The decision letter was issued five months late and the final EHC plan should have been issued in June 2024 but was issued in January 2025, a delay of six months.
60. This fault caused Mrs F a delay in her opportunity to appeal to the Tribunal. I do not find, on balance, that an earlier EHC plan would have named the specialist setting Mrs F wanted. This is because the Council’s panel decided J’s needs could be met in a mainstream setting. But the delay caused Mrs F distress and uncertainty about what provision was to be made.
61. There was a meeting between the School, Council and Mrs F on 16 September 2024. This was an opportunity for the Council to determine if any reintegration plan was working, review the suitability of the education being provided to J and to decide if it owed a section 19 duty to provide a suitable education either because J was ill or because the School was not “available and accessible” to J. I have seen no evidence the Council considered these matters. Instead the Council focused on Mrs F’s request for a specialist school and waited for her evidence to submit to its provision panel. As a result, the Council failed to develop a plan for J's education, either at school or elsewhere. This is fault.
62. I find, on the balance of probabilities, that if the Council had considered whether it owed a section 19 duty in September 2024 it would have concluded it did. This is because any reintegration attempted had not been successful and there was evidence from the GP and mental health services of J’s conditions and mental health deterioration. In response to my enquiries, the Council noted that its provision panel had considered this information and had concluded that J’s primary barrier to education was anxiety about attending school. This means J was unable to attend school due to illness and the Council had a duty to provide a suitable education under section 19 from September 2024.
63. The Council should have intervened to ensure that suitable education was provided to J. The failure to put alternative provision in place from the autumn term 2024/25 to July 2025 (three terms) was fault.
64. My view is that it is unlikely that J would have been able to cope with a full-time education, whether at school or at home. Nonetheless, he missed out on education and SEND provision for a school year. This is an injustice.
65. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a moderate, symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
66. Our guidance on remedies says that for distress and uncertainty caused by fault and delayed opportunity to appeal, a moderate payment up to £500 may be appropriate.
67. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. My view is that £1,200 per term would be appropriate. In reaching this figure I have considered that it was unlikely that J could have had a full-time education.

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Action

68. Within a month of my final decision, the Council has agreed to:
• Pay Mrs F £400 to remedy the delayed opportunity to appeal and the uncertainty and distress caused by fault.
• Pay Mrs F £3,600 as a symbolic payment to remedy the impact on J of the loss of education and SEND provision for the school year 2024/25. This could be used for J’s educational benefit.
69. The Council should provide us with evidence it has complied with the above actions.

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Decision

70. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman