Summary: Ms X complains on behalf of Miss V and Mr Z that the Council delayed providing support to them and their son, Y, while section 19 alternative provision has been in place. Ms X also says the Council has delayed making appropriate school-based provision and has delayed the annual review of Y’s Education, Health and Care Plan. We have found fault in the Councils actions for delaying in completing Y’s annual review and in putting in place tutoring for Y and for failing to provide the provision set out in section F. The Council has agreed to write to Miss V and Mr Z to apologise and pay them a symbolic payment.

The complaint

1. Ms X complains on behalf of Miss V and Mr Z that the Council delayed providing support to them and their son, Y, while section 19 alternative provision has been in place. Ms X also says the Council has delayed making appropriate school-based provision and has delayed the annual review of Y’s Education, Health and Care (EHC) Plan.
2. Ms X says this has caused the family distress and caused Y to miss 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. Ms X has complained of issues dating back to 2023. However, any events before April 2024 have not been brought to us within twelve months of Miss V and Mr Z becoming aware of them. As there was no good reason for this, complaints about these matters are now late. My investigation begins in April 2024 and ends with the date of the Council’s final complaint response. Earlier events are only referred to for context.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

10. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
11. The EHC Plan is set out in sections which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school.
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Reviewing an Education, Health and Care Plan

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. 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 discontinue the EHC 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) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
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) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
15. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Arranging provision

16. Councils are responsible for making sure that 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.
17. 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)  
18. 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 special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• 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 provision

19. 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.
20. 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)
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)

What happened

22. Y stopped attending school in around October 2023 and the Council put around 15 hours tuition in place for Y in November 2023. The Council issued an EHC Plan for Y in February 2024 which named a placement in Section I.
23. Y could not attend school, and the Council agreed to increase the tutoring hours which were being provided in April 2024 to 30 hours per week. The Council wrote to Miss V in mid-April 2024 and said it had received responses from several settings, but all had advised they could not meet Y’s needs.
24. Miss V emailed the Council in May 2024 to say Y had not received any provision or education for four weeks. The Council responded and said it would ask the tutoring agency to contact her.
25. The Council increased Y’s tutoring hours to 30 hours per week in June 2024.
26. Y was due to attend High School in September 2024, but Miss V emailed the Council and said he could not attend.
27. The Council asked panel to agree to tuition again in October 2024 and to facilitate Y’s transition into high school.
28. Miss V raised a complaint with the Council in late October 2024 which said Y had received part-time tuition between September 2023 and May 2024 when full time tuition was introduced. Miss V said full time tuition did not cover Y’s needs and that he was not receiving the content of section F of his EHC Plan. Miss V also said his transition into school had failed.
29. The Council responded to Miss V’s complaint in early November 2024 and said Y felt unable to attend school, so it had arranged tuition for him. The Council said it named Miss V’s preferred choice of placement in Y’s EHC Plan, but he had not attended. It said it introduced tutoring as a temporary measure and not as an alternative provision whilst a transition back to school was completed.
30. The annual review of Y’s EHC Plan took place in December 2024.
31. Miss V raised a further complaint in December 2024 and said the Council had failed to take the action it had agreed and had not provided any updates. Miss V also said there was a delay in completing Y’s annual review and that the placement named in Y’s EHC Plan was unsuitable. Miss V also said the Council’s refusal to allow the use of an AV1 robot was discriminatory.
32. The Council agreed to continue to fund home tuition and a second adult in mid-December 2024.
33. The Council responded to Miss V’s complaint in mid-December 2024 and said it had agreed to continue to fund home tuition for Y and provide a second adult as requested. It said it would work with the school and parents to try and transition Y back into school. The Council said it had spoken to the school about the use of an AV1 robot but there were safeguarding concerns surrounding this raised by the school.
34. Miss V replied to the Council in late December 2024 and said its complaint response had not addressed all the issues she had raised. Miss V said the Council had not arranged interaction with Y’s peers and the tutor arranged was not suitable. Miss V also said the Council should be implementing all of Section F even though Y was not at school.
35. The Council agreed for a Learning Support Assistant to be put in place for 30 hours a week.
36. The Council responded to Miss V’s complaint in mid-January 2025 and said it would consider proposals for Y interacting with peers, it said it understood the school had forwarded ‘about me’ documents to Y regarding his classmates and teacher and had tried to arrange a zoom call. The Council said the school named in Y’s EHC Plan was suitable and could meet need if Y attended.
37. Miss V raised a further complaint in January 2025 which said the provision suggested by them as parents had not been implemented and the tutor being provided was not suitable. Miss V also said the school had confirmed it could not meet Y’s needs and requested a reassessment.
38. Miss V raised a further complaint around two weeks later saying she had not received a response and no arrangements had been made to complete a re-assessment.
39. The Council considered trying to find an alternative school in February 2025 and consulted with several settings. The Council received responses saying those settings could not meet Y’s needs.
40. The Council issued a complaint response in March 2025 which said Y was receiving tutoring whilst he could not attend school. The Council said the plan was for the tutor and the LSA to work with Y to help him access the community when he was well enough. The Council said the tutor was fully qualified and that it was commissioning Educational Psychologist (EP), Occupational Therapist (OT) and Speech and Language therapist (SaLT) reports.
41. The Council issued an amended draft EHC Plan in June 2025.

Analysis

Review of Education, Health and Care Plan.

42. The annual review for Y should have taken place in late October 2024. This did not start until early December 2024. The Council should have issued Y’s EHC Plan within 12 weeks of the annual review but did not do so until June 2025. This is fault. The delay of around 10 weeks would have caused Miss V and Mr Z distress and frustration. It also delayed any appeal rights.

Arranging provision

43. Y’s 2024 EHC Plan detailed various provision in section F of his EHC Plan, the majority of this was to be delivered at school. The EHC Plan suggests SaLT and OT provision.
44. The Council has said it requested OT involvement, but the service declined to assess after reviewing the information.
45. The Council said the reference to SaLT in the plan was an example of who might support Y in a small group setting and was not a specific requirement. However, the EHC Plan refers to interventions being informed and guided by input from relevant services such as SaLT. The Council has a duty to provide the provision set out in Section F. I cannot see the Council has done this here which is fault. This has caused the family distress and has led to Y missing provision.

Alternative provision

46. The Council provided tutoring for Y when it became apparent he was not able to attend school.
47. The Council agreed to increase the hours of tutoring Y received in April 2024 from 15 to 30. This was not put in place until June 2024 and Miss V says Y did not receive any provision from around mid-April 2024 to June 2024. This is fault and has caused the family distress and led to Y missing provision.
48. The Council instructed an LSA from December 2024 who started in February 2025 and this remained in place for the period this investigation has covered. I accept there were some gaps in this due to LSA’s leaving but the Council did seek to replace these.

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Action

49. Within four weeks of a final decision, the Council should:

• Write to Miss V and Mr Z and apologise for the distress caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Miss V and Mr Z £200 to recognise the distress caused by the delay in completing Y’s EHC Plan annual review.
• Pay Miss V and Mr Z £750 to recognise the missed SaLT provision between June 2024 and June 2025.
• Pay Miss V and Mr Z £1,000 to recognise the provision missed between April 2024 to June 2024.

50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman