Summary: The Council failed to maintain oversight of Miss X’s child, Y’s, education while they were out of school. It also failed to review Y’s Education, Health and Care Plan and delayed implementing Education other than at School (EOTAS) provision. This caused Miss X uncertainty over Y’s education and Y to miss out on half a term’s EOTAS provision. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council failed to deliver a suitable alternative education and secure the SEN provision in her child, Y’s Education, Health and Care (EHC) Plan when the Council stopped their school transport and they stopped attending school. She says this has impacted Y’s development and caused her family severe distress. She wants the Council to compensate her for the cost of home schooling and impact of its failings.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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)
5. 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) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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

Late complaints – when I have investigated from

7. 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)
8. Part of Miss X’s complaint is late because it concerns the Council’s actions that happened more than 12 months before she complained to us. The Council changed Y’s school transport in October 2022. It was open to Miss X to complain to us sooner about the change to Y’s school transport and I consider it was reasonable for her to have done so.
9. While part of Miss X’s complaint is late, I have decided to investigate events from January 2023. Miss X did not complain to us until April 2025. However, there were delays to the Council’s complaint response which meant Miss X could not have complained to us sooner.

Appeal rights – when I have investigate to

10. There is a right of appeal to the SEND Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
11. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
12. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
13. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
14. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
15. I have decided to investigate up to 19 September 2024 when the Council issued Y’s amended EHC Plan. Once the Council issued the Plan Miss X had a right of appeal over the content of the Plan and it was open to her to use this right. We will not investigate a complaint about Y’s alternative provision or special educational provision after this date as it is too closely linked to the provision in Y’s EHC Plan for which she had the right of appeal.
16. 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

17. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
18. Miss X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The law

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)
22. 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
23. 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.

24. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Education, Health and Care (EHC) Plans

25. 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. 
26. 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)  
27. 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. 

28. 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) 
29. Where there is a significant change in circumstances, such as a breakdown in a placement, we expect the Council to consider an interim review.
30. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
31. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Background

32. Miss X’s child Y attended primary school from 2021, with an Education, Health and Care (EHC) Plan in place from December 2021. Y was taken to school in a sole occupancy taxi as there was no capacity on the Council’s shared school transport. Y’s EHC Plan said school staff should deliver the SEN provision in the Plan. This included:
• Use of teaching strategies appropriate to Y’s needs.
• Staff training in how to communicate effectively with Y.
• An autism friendly school setting.
33. In 2022 the Council told Miss X it was changing Y’s school transport to shared transport. Miss X sent the Council letters from Y’s paediatrician and Speech and Language Therapist. The paediatrician said Y needed Miss X to accompany them in a single occupancy taxi due to their sudden unexpected behaviour. They said Y could bang their head against the windows and encountered episodes which made it difficult to be around other children.
34. The Council considered this information and decided it could meet Y’s needs on the shared transport. It said there were experienced drivers and passenger assistants on the transport to assist Y during any episodes.
35. Miss X was unhappy with the Council’s decision but did not appeal it. Y stopped attending school in December 2022 when the taxi transport stopped. The Council was aware Y stopped attending school at the time.

What happened

36. Y did not return to school in January 2023 but remained on the school roll. Their school began sending work home and carried out welfare checks at home. In April 2023 Y’s school told the Council Miss X was considering elective home education. When the Council contacted Miss X she said she was not.
37. Y remained on the school roll, and it continued to send work home. The school also attempted to transport Y to school in its own minibus, but this was not successful.
38. In September 2023 the Council spoke to Miss X about Y’s plans for the new term. Miss X told the Council Y’s needs were too complex to travel to school on shared transport and Y did not return to school. Y’s school started to arrange some home tuition for Y from November 2023.
39. In February 2024 Miss X asked for an Education other than at School (EOTAS) package for Y. The Council approved this in March 2024. In April 2024 Miss X complained to the Council. She said Y had been out of school since December 2022 with no reassessment of their EHC Plan or support in place.
40. The Council emailed Miss X in May 2024. It apologised for the delay arranging EOTAS provision. It said it now had a dedicated officer who would ensure the provision was in place soon. Shortly after it responded to Miss X’s complaint. It said a place for Y had remained available at their school and it had not received a reassessment request. It accepted it had delayed setting up Y’s EOTAS provision and said it would review this provision termly once in place. Miss X responded by requesting a reassessment of Y’s EHC Plan.
41. Y’s EOTAS tutoring started in June 2024. The Council agreed to reassess Y on 13 June 2024. Y’s school removed them from their roll on 14 June 2024.
42. The Council received advice from an Educational Psychologist on 25 July 2024 and issued Y’s final amended EHC Plan on 19 September 2024, within the statutory deadline. The Plan specified appropriately trained practitioners and a highly adapted and personalised curriculum for Y. It referred to Miss X’s request for EOTAS provision but continued to specify school-based provision such as 32.5 hours of teaching assistant support, and a review of Y’s provision through the school’s internal access plan. The Council informed Miss X of her right of appeal to the Tribunal but she did not appeal the Plan.
43. Miss X requested a change of tutor for Y later in September 2024. The Council arranged a new tutor who left shortly after starting to work with Y. At the end of September 2024, the Council began consulting with school settings for Y.
44. The Council responded to Miss X’s complaint at stage two of its complaint process in December 2024. It reiterated a school place remained available for Y until their EOTAS package was in place. It said it’s transport offer met Y’s needs and Y’s school sent work home and carried out welfare checks. It continued to accept a delay in arranging Y’s EOTAS provision.
45. Y remained without a new tutor in early 2025. The Council said it was continuing to consult with schools and identify a tutor in the interim. Miss X complained to the Ombudsman in April 2025.

My findings

Y’s initial absence from school

46. The Council was under a duty to secure the provision in Y’s EHC Plan and arrange a suitable alternative education for Y, unless it considered Y’s school remained available and accessible. The Council maintains Y’s school, and access to the provision in their EHC Plan, remained available to Y up until June 2024, and that Y’s school provided suitable work at home for Y while they tried to resolve the transport situation.
47. While the Council was entitled to take this view initially, as the length of Y’s absence grew, we would expect it to have oversight of the situation, considering Y’s individual circumstances and liaising with professionals and Miss X. Y’s prolonged absence from school was also a significant change of circumstances. The Council should have considered an interim review of Y’s EHC Plan, or at the very least carried out an annual review in 2023. It did neither. On balance, the Council allowed the situation to drift, with little oversight of Y’s education and no review of Y’s school-based EHC Plan until Y had been out of school for over a year. This was fault.
48. This caused Miss X uncertainty over what education Y was entitled to. However, on balance, I cannot say to what extent it resulted in Y missing out on an education or the provision in their EHC Plan between January 2023 and March 2024 when the Council agreed EOTAS provision. Due to the length of time between Y’s stopping attending school and the September 2024 EHC Plan, I am unable to say what the outcome of any review would have been, what provision the Council would have specified and whether Miss X and Y would have accepted it. Y also received education from their school and tuition at home.

Y’s EOTAS provision

49. Miss X asked the Council for EOTAS provision in February 2024. Rather than trigger a review of Y’s school-based EHC Plan the Council simply approved EOTAS provision and then failed to put the provision in place. This was fault and caused Y to miss out on EOTAS provision agreed between March and June 2024, approximately half a term.
50. By 19 September 2024 the Council had formalised Y’s provision in an amended EHC Plan. Miss X had a right of appeal over the content of this Plan. I therefore will not investigate any matter linked to the delivery of the provision in this plan due to the reasons outlined in paragraphs 10 to 15.

Service Improvements

51. The Council has explained the steps it is taking to resolve the failures in its EHC Plan review process following similar findings in another case. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Agreed Action

52. Within one month of the final decision the Council has agreed to:
1. Apologise to Miss X for the uncertainty caused by its failure to review Y’s EHC Plan and maintain oversight of Y’s education while they were out of school. 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.
2. Pay Miss X £250 to recognise the uncertainty caused by the Council’s failure to review Y’s EHC Plan and maintain oversight of Y’s education while they were out of school.
3. Pay Miss X £450 to recognise the impact of Y missing half a term’s EOTAS provision.
53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman