Summary: Mrs X complained the Council failed to put in place education for her daughter when she could no longer attend her allocated school and failed to ensure her daughter received the provision in her EHC Plan. There is no fault in how the Council dealt with the education available to Mrs X’s daughter. There is evidence of some of Mrs X’s daughter’s provision not being in place. That meant her daughter missed out on some provision. The apology already offered to Mrs X is satisfactory remedy.

The complaint

1. The complainant, Mrs X, complained the Council:
• failed to put in place alternative provision when her daughter became unable to attend her allocated school (School A); and
• failed to ensure some of her daughter’s special educational needs provision was in place.
2. Mrs X says the Council’s actions have placed her under significant financial strain and her daughter has missed out on education.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
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(i), 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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What I have and have not investigated

8. I have investigated what has happened in terms of the education provided to Mrs X’s daughter between September 2024 and January 2025. I have not considered the period after January 2025 as the Council issued a new EHC Plan naming school B and the complainant appealed. I have exercised the Ombudsman’s discretion to investigate the special educational needs provision in place since September 2023.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mrs X and the organisation 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

Section 19

11. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.
12. 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)

Special educational needs

13. A child or young person with special educational needs may have an education, health and care plan (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 council can do this.
14. Under section 42 of the Children and Families Act 2014 the council is responsible for making sure arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

What happened

15. Mrs X’s daughter has special educational needs and an EHC Plan. Mrs X’s daughter began attending School A in September 2023. The Council named School A in Mrs X’s daughter’s EHC Plan.
16. In September 2024 Mrs X’s daughter began struggling to attend school. School A made some amendments to her timetable and Mrs X asked for the adapted timetable to continue for four weeks to help her settle back in.
17. On 26 September Mrs X telephoned the Council to express concerns about School A not meeting her daughter’s needs. Mrs X contacted the Council again on 11 October raising concerns about the school not providing her daughter with medication, as required in her EHC Plan.
18. The Council held an early annual review of the EHC Plan on 18 October. Mrs X told the Council her daughter did not want to attend School A due to anxiety. The annual review documentation records that Mrs X asked for a change of placement to school B. Mrs X disputes that. The Council said it would consult school B but made clear it considered School A remained a suitable placement. The Council asked School A to send work home for Mrs X’s daughter to complete, while encouraging her to return to school.
19. Mrs X asked for a meeting with the Council on 23 October. Council officers met with Mrs X on 29 October. Mrs X asked the Council not to consult school B and said she considered elective home education the only option left to her.
20. The Council agreed elective home education on 14 November. Mrs X requested a budget and set out in detail what she considered her daughter needed. The total cost of that budget exceeded £45,000. The Council agreed a budget of £14,411.
21. Mrs X told the Council she was not happy with the budget and said she had never wanted to home educate her daughter. Mrs X asked for education other than at school. The Council told Mrs X it would only consider education other than at school for children for whom it did not consider a school or college appropriate. The Council told Mrs X it considered her daughter could attend a school and if she did not agree she would need to provide strong evidence. The Council said it would consult School B but made clear it considered School A could meet Mrs X’s daughter’s needs.
22. On 10 January 2025 the Council issued a final EHC Plan naming School B. Mrs X appealed. Mrs X says the tribunal decided an education other than at school package was appropriate for her daughter.

Analysis

23. Mrs X raised concerns about various periods when her daughter did not receive an education going back five years. The Ombudsman will not normally consider a complaint about matters which took place more than 12 months ago. That is because we would expect Mrs X to have brought the complaint to the Ombudsman at the time and, in any event, within 12 months. I am therefore not exercising the Ombudsman’s discretion to investigate any period before September 2024, when Mrs X’s daughter stopped attending School A.
24. Mrs X says the Council failed to make alternative provision available for her daughter when she became unable to attend School A in September 2024. The evidence I have seen satisfies me although Mrs X had concerns about the suitability of School A both School A and the Council continued to consider School A a suitable placement for Mrs X’s daughter. What that means is that from the Council’s point of view it was satisfied Mrs X’s daughter had access to a full-time education and it was Mrs X’s decision to remove her from that provision.
25. I recognise that is a view with which Mrs X is likely to strongly disagree. It is clear Mrs X believed her daughter could not access any school, based on her experience in her previous four schools. It is also clear Mrs X believed the Council should provide her daughter with a personal budget for education other than at school.
26. However, the Council took a different view. As that view was also shared by School A I cannot criticise the Council for failing to put in place alternative provision or education other than at school for Mrs X’s daughter. The Council would only have done that if it considered Mrs X’s daughter could not access School A or could not be integrated into any school environment. That is clearly not the Council’s view given it issued a new EHC Plan in January 2025 naming School B. As the Council’s view was that School A remained appropriate throughout and as that placement remained available to Mrs X’s daughter until the Council named School B in January 2025 I cannot criticise it for failing to put alternative provision in place.
27. Mrs X says the Council told her education other than at school was not an option and therefore she only had the option of elective home education. It would not be surprising if the Council had told Mrs X that given its view was that Mrs X’s daughter could be educated in school. The Council would only agree education other than at school for children who could not attend any school. I am satisfied the Council made that point clear to Mrs X but also told her she would need to provide significant evidence if she believed no school could meet her daughter’s needs. As I am satisfied the information the Council gave Mrs X is accurate there are no grounds on which I could criticise it.
28. In reaching that view I note Mrs X says the Council conceded at tribunal that an education other than at school package was appropriate for her daughter. Mrs X therefore points out the Council has now accepted there is no school placement that can meet her daughter’s needs. As I made clear in paragraphs 4 and 8, the Ombudsman does not have jurisdiction to consider the suitability of a school named in an EHC Plan because the parent has a right of appeal. Even though the Council appears to have altered its view on the suitability of the school during the appeal process that remains a matter outside the Ombudsman’s jurisdiction and I therefore cannot comment on it.
29. Mrs X says she did not tell the Council she wanted to home educate her daughter. Based on the documentary evidence I have seen I consider it likely Mrs X said she would home educate her daughter because she believed that was the only option open to her other than sending her daughter to a school. I recognise Mrs X’s choice was instead for her daughter to be educated other than at school. As I said in the previous paragraph though, the Council would only agree that option if it were satisfied Mrs X’s daughter could not attend any school and that was not the Council’s view. In those circumstances if Mrs X did not intend to send her daughter to school her only other option was home education.
30. I recognise Mrs X is also concerned about the budget the Council offered to allow her to arrange education for her daughter. It is clear there is a significant difference in the annual cost of the personal budget Mrs X asked for and the personal budget the Council agreed. I am satisfied though the Council considered the representations Mrs X made about the personal budget at its panel in November 2024. That document set out why the panel did not consider some elements Mrs X had included in the personal budget should be allowed for. As I am satisfied the Council properly considered the budget and therefore reached a decision it was entitled to reach there are no grounds on which I could criticise it.
31. Mrs X says the Council failed to ensure all the provision in her daughter's EHC Plan was in place. Mrs X says this applies from the start of her time at School A in September 2023.
32. As I said earlier, the Ombudsman will not normally consider a complaint about something that happened more than 12 months ago. In this case though, I am satisfied Mrs X did not know about the missing medication until September 2024. I have therefore exercised the Ombudsman's discretion to investigate what happened since September 2023 in relation to the alleged missed special educational needs provision.
33. Mrs X says the following provision was not in place at School A:
• assistive technology
• trusted adults
• quiet spaces
• literacy interventions
• daily medication
34. For assistive technology, Mrs X says because School A did not put that in place her daughter could not complete entry-level qualifications or take part in exams. Having considered Mrs X's daughter's EHC Plan the only assistive technology that is listed is access to a laptop. There is nothing in the EHC Plan to suggest Mrs X's daughter should have received access to assistive technology to complete exams. School A has made clear it made a laptop available to Mrs X's daughter throughout and she largely chose not to access it. School A has also confirmed Mrs X's daughter had extra time built in, in accordance with her EHC Plan. As the school has confirmed the laptop was available and that is all the assistive technology in the EHC Plan I have no grounds to criticise the Council.
35. For trusted adults, quiet spaces and literacy interventions, I have identified nothing in the documentary evidence to suggest those were not in place. School A has said it put the provision in place and I do not have any evidence since 2023 to suggest it was not. Had it not been in place I would have expected it to be referred to in the annual reviews which took place and it is not. I therefore could not say those parts of the EHC Plan were not in place.
36. In reaching that view I recognise staff have left School A and some of those staff included trusted adults Mrs X’s daughter had access to. I understand Mrs X’s concern about the disruption that would have caused to her daughter. However, staff leaving is not something School A could control and is not fault. As I am satisfied alternative trusted adults remained available to Mrs X’s daughter I have no grounds to criticise the Council.
37. For the medication, School A accepts it failed to administer medication on some occasions and confirms it has addressed that by training more members of staff. While that is fault, I consider the apology Mrs X has already received from School A satisfactory remedy.

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Final decision

38. I find fault causing injustice. The Council has taken action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman