Summary: Mrs X complained the Council has failed to provide suitable alternative provision for her son during the periods he has been unable to attend school due to ill health. And that the Council failed to ensure her son received the provision specified in his Education, Health and Care (EHC) Plan. We found the Council’s failure to ensure Y continued to receive a suitable education and the provision in his EHC Plan during the periods he was unable to attend school is fault. This fault has caused Mrs X and Y an injustice. The Council will apologise and make a payment to Mrs X, and remind staff of its statutory duties.

The complaint

1. Mrs X complained the Council has failed to provide suitable alternative provision for her son during the period he has been unable to attend school due to ill health. Mrs X also complains the Council failed to ensure her son received the provision specified in Section F of his EHC Plan.

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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. 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. 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. 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 considered

6. Mrs X says she has been raising concerns about lack of support and education when Y is unable to attend school since 2022, but I have not investigated this full period.
7. As set out above, we expect people to come to us within 12 months of them thinking the Council has done something wrong. As Mrs X contacted us in April 2025 we would generally only consider events since April 2024.
8. We have discretion to consider events outside the 12 month timeframe if there are good reasons for doing so. I do not consider it appropriate to exercise discretion I this instance. It was open to Mrs X to raise her concerns with us sooner.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

11. 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 council can do this.
12. 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)  

Alternative provision

13. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. 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”.
15. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
16. 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))

What happened here

17. This is a summary of events outlining key facts and it does not cover everything that has happened in this case.
18. Mrs X’s son Y has an EHC Plan and attends a mainstream secondary school. Mrs X says Y always tries to attend school, but does not feel supported at school. He struggles socially, emotionally, and mentally. Y has a number of medical conditions and has had to have time off school for surgery and recovery.
19. The school arranged a review of Y’s EHC Plan in May 2024. Prior to the review meeting Mrs X raised concerns with both the school and the Council about the impact of school on Y’s mental health. Y was struggling to attend school and Mrs X was concerned the school was not following his EHC plan.
20. At the annual review meeting Mrs X asked for a reassessment of Y’s needs as they had changed significantly. The school also requested an Educational Psychologist assessment. The records of the meeting a note a discussion on the provisions to be arranged for Y in school, including key adults, power points for lessons in larger text, and touch typing sessions. The school would also liaise with both the SEMH (Social, Emotional and Mental health) team and CCAT (Complex Communication and Autism Team) to provide advice on support for Y.
21. On 1 July 2024 the Council sent Mrs X a draft amended EHC Plan and invited her comments. The Council told Mrs X it would not reassess Y’s needs. Mrs X asked the Council to confirm the reasons for refusing to re-assess so she could consider how to proceed. Mrs X was unhappy the school had asked the Council to obtain reports to re-assess Y’s needs, while the Council said this was the school’s responsibility.
22. The Council told Mrs X that once a child has an EHC Plan it is the school’s responsibility to arrange all assessments. If the child’s needs change significantly it is the school’s responsibility to provide evidence and request a reassessment. The Council had not received any new reports to evidence this and for this reason had refused a reassessment.
23. The Council then issued further amended EHC Plans in August and September 2024 and a final EHC Plan in October 2024.
24. In October 2024 Mrs X raised concerns that agreed actions had not yet happened. She also said there had been difficulties in recent weeks getting work packs for Y. Mrs X told the Council Y had been off school for several days as his mental health was poor. She was not sure when he would be able to return and would be off school again the following week for an operation. Mrs X asked the Council for details of a specialist robot that sits in class while the child works from home via a video link.
25. Mrs X chased the Council for a response on 15 and 18 October 2024. She reminded the Council Y had been off school for almost 15 days and the Council had a duty to provide a suitable education. While Y was in primary school this was done via home tuition, but Mrs X considered the robot was a good alternative. It could be particularly useful when Y was off school due to anxiety or recovering from an operation, but potentially able to work at home. The case officer confirmed they would discuss the robot with their manager. There is no record of any discussion or the outcome.
26. On 22 October 2024 Mrs X told the school and Council that Y would not be returning to school until after half term. She asked the school to ensure Y was sent all the work he had missed since 7 October 2024 so that Y could catch up. The school confirmed all the work would be available by the end of the week for Mrs X to collect.
27. In early November 2024 Mrs X told the school and the Council that Y would be off school for further surgery before Christmas. She asked that Y be assisted in catching up and getting ahead with school work prior to the operation as this was an important school year.
28. Mrs X subsequently requested a tutor to support Y while he was recovering from surgery at home. The Council told the school this could be arranged through the Section 19 provision centre in its area. The school calculated the cost of the provision and asked the Council for additional funding. This does not appear to have been agreed or progressed.
29. In December 2024 Mrs X made a formal complaint about the lack of alternative provision while Y was off school due to poor mental health and following operations. She noted they had asked several times for home tuition, a Robot, or other means of providing an education while Y was not in school. Mrs X also complained Y’s SEND case officer had not attended the Team Around the Family (TAF) meetings.
30. The Council responded in January 2025. It noted Mrs X had contacted the Council in October 2024 expressing concerns about obtaining work for Y and requesting information about a robot to support him due to medical health issues and an upcoming operation. The Council said it had not received any recent medical advice relating to the difficulties Y had experienced or the long term impact on Y’s ability to access school.
31. The Council referred to government guidance which said where possible the child’s health needs should be managed by the school so that they can continue to be educated there with support, without the need for intervention from the Council.
32. It noted there had been a number of email exchanges between Mrs X and the school regarding work being sent home for Y to complete while he was absent from school. The school also contacted the Council on 28 November 2024 to access home tuition.
33. The Council said it had continued to work closely with the school regarding arrangements for Y when he is absent from school due to medical reasons. It was considering the school’s request for additional funding to support Y by way of alternative provision during periods that he is unable to attend school. The Council said it needed further information about Y’s long-term health needs and the impact of this on his attendance moving forward. It would then explore whether a referral to a short stay provider for pupils with medical or psychological difficulties would be suitable.
34. In addition the Council acknowledged Mrs X’s disappointment that the case officer did not attend the TAF meeting and apologised that this was not always possible.
35. The Council also arranged a meeting with the school in January 2025 to discuss the provision what could be put in place when Y was off school for medical reasons.
36. As Mrs X was not satisfied with the Council’s response she asked for her complaint to be escalated. She asserted the Council had not investigated her complaint thoroughly and that it should have been aware she had been raising these issues since September 2022. Mrs X said the Council had up to date medical evidence and had used this to update Y’s EHC Plan.
37. Mrs X told the Council Y needed support to help him catch up and then keep up when he is off school due to medical appointments, illness related to his medical conditions, or following any further operations. She did not see that a short stay provision would help with this and considered home tuition or the Robot were the only alternatives.
38. Mrs X considered government guidance was clear regarding the Council’s responsibility to provide Y with an education when he was away from school for 15 days or more over the course of a school year. She also asserted the Council had failed to ensure Y received the provision in his EHC Plan.
39. The Council responded to Mrs X’s complaint in early March 2025 and acknowledged the initial complaint response only focussed on the current academic year. The Council examined the historic records and agreed a pre-planned resource needed to be in place to ensure any future medical absences were supported without delay.
40. The Council said it had secured additional robots and would contact Y’s school to ensure this was enabled and ready to use at short notice. It also confirmed the school could review Y’s progress and identify any areas of the GCSE curriculum that required additional input to ensure Y catches up.
41. Mrs X remained dissatisfied and has asked the Ombudsman to investigate her concerns.
42. In response to my enquiries the Council confirmed Y has had multiple periods of absence for medical and mental health reasons. It says it was made aware in the annual review paperwork in May 2024 that Y had 9.7% authorised absences during the 2023/24 academic year. It then learnt of Y’s subsequent absence in October 2024 when Miss X copied it into correspondence sent to the school.
43. The Council says it worked closely with the school to determine whether and when schoolwork was being provided during these absences. The School Improvement and Inclusion team also provided support regarding a Robot.
44. In addition the Council says it:
• explored referrals to a learning centre and for outreach support;
• provided a Robot to facilitate access to education during absence in February 2025;
• held meetings between the school and council officers in January and March 2025; and
• reviewed correspondence from the family and others, including additional medical evidence to enable the Council to assess the long term impact and determine eligibility.
45. The Council acknowledges there were provisions in Y’s EHC Plan that were not fully delivered and there were delays in arranging a full Educational Psychologist assessment, and in receiving the annual review paperwork from Y’s school. The Council also confirmed power point slides were not consistently provided for all lessons and there were some delays and inconsistencies in the work provided during Y’s absences.

Analysis

46. The Council has a duty to arrange suitable education for a child it knows cannot attend school. The documentation shows Mrs X raised concerns with the Council about Y’s difficulties in accessing education and the provision in his EHC Plan prior to the annual review in May 2024. Mrs X also raised concerns as part of a separate formal complaint in August 2024.
47. Given the Council’s assurances that its SEND team were working closely with its School Improvement and Inclusion service I consider the Council knew, or should have known, of Y’s difficulties in attending school. And should have ensured there were resources/ provision available or in place when needed. The Council acknowledges work provided by school while Y was absent was delayed and inconsistent.
48. The Council has now provided a robot for remote leaning which Y can access when he is unable to attend school. This will be available to Y until the end of Year 11. This is to be welcomed however I consider this or other suitable provision should have been available sooner.
49. The Council was aware of Y’s planned surgeries in October and December 2024 but there is no records of how they considered Mrs X’s request for a robot at that this stage.
50. In anticipation of the surgery in December 2024 the school asked for additional funding for a tutor. Again there is no record of how this was considered once the school had provided details of the cost. The Council arranged a meeting with the school in January 2025 to discuss this provision, by which stage Y had returned to school.
51. I consider the Council’s failure to ensure Y continued to receive a suitable education and the provision in his EHC Plan during the periods he was unable to attend school is fault.
52. This fault has caused Y an injustice. The Council has confirmed 22.8% of sessions in the academic year 2024/25 were marked as authorised absence for Y. This is a significant proportion of Y’s education at an important stage of his school career. Just over 7% of these authorised absences were individual days off for medical appointments. There was also two extended periods of absence in the autumn term, before the robot was available. Although school provided some work during these absences, this was not a suitable full time education.

Action

53. The Council has agreed to:
• apologise to Mrs X and Y for the distress and anxiety caused by the Council’s failure to ensure Y continued to receive a suitable education and the provision in his EHC Plan during the periods he was unable to attend 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 in my findings.
• pay Mrs X £250 to acknowledge the impact of the loss of educational and SEN provision when Y was unable to attend school.
• remind staff of its duties under law and guidance to provide alternative provision when a child of statutory school age is out of school for health reasons. The council should consider sharing a copy of our focus report ‘Out of school…. Out of sight?’ with the reminder.
54. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

55. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman