Summary: Mrs X complained the Council failed to provide a full time education for her daughter, Y, since October 2024. She also complained the Council failed to provide the provision as set out in Y’s Education, Health and Care (EHC) Plan. Mrs X said this caused the family distress and Y missed education and plan provision. The Council was not at fault.

The complaint

1. Mrs X complained the Council failed to provide a full time education for her daughter, Y, since October 2024. She also complained the Council failed to provide the provision as set out in Y’s Education, Health and Care (EHC) Plan. Mrs X said this caused the family distress and Y missed education and plan provision.

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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. 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 s34H(1), as amended)
3. If we are satisfied with a Council’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)

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How I considered this complaint

4. I read Mrs X’s complaint and spoke to her about it on the phone.
5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs X 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

Background information

7. 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.
8. 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)  
9. 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. 

10. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• 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; and
• amendment to these elements of an 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. 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.
15. 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)
16. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
17. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
18. 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))
19. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
20. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

21. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
22. Y has complex needs. She has an EHC Plan detailing her needs and provision to meet her needs. The plan named school B.
23. Mrs X asked the Council to complete a reassessment of Y’s needs in early 2024. The Council refused to complete the reassessment. Mrs X appealed the decision to the Tribunal in October 2024.
24. School B placed Y on a part time timetable in October 2024. School B created an alternative provision plan and Mrs X signed the plan. School B sent the plan to the Council. The plan was for Y to attend school for half days for the first week, off site provision and therapeutic provision. The plan was to build the time in provision up to full time within three months.
25. School B held the annual review meeting in December 2024. The meeting recommended the Council amend Y’s EHC Plan.
26. The Council told Mrs X it would amend Y’s EHC Plan in January 2025.
27. The Council sent Mrs X the draft EHC Plan in February 2025.
28. The Council issued the final EHC Plan in March 2025.
29. Mrs X complained to the Council at the start of April 2025. She complained Y was not receiving enough support.
30. The Council issued its stage one complaint response in April 2025. The response said the EHC Plan named school B and the Council funded the EHC Plan provision. The Council said Y was on a reduced timetable and it was actively monitoring the alternative provision plan. The Council said the school was responsible for delivering Y’s education and plan provision.
31. Mrs X asked the Council to escalate her complaint to stage two the following day. She said Y was on a reduced timetable.
32. The Council issued its stage two response at the start of May 2025. The response repeated the EHC Plan named school B and the Council provided funding to deliver the provisions in the plan. The response said the school could meet Y’s needs. The Council confirmed it did not have a section 19 duty because Y was attending school. The alternative provision plan was in place to support Y to get back into school full time.
33. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to provide Y with full time education, name a suitable school and address the missed education.
34. In response to my enquiries the Council stated school B could meet Y’s needs. The Council said it provided funding for the school to provide the provision in the EHC Plan. The Council evidenced the regularly reviewed alternative provision plan which Mrs X signed.

My findings

35. Councils 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”.
36. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.
37. The Council says school B could meet Y’s needs and provide the provision set out in the EHC plan. The Council therefore found there was suitable education available to Y. For this reason, the Council said it did not have a duty to provide an alternative education.
38. The Council confirmed school B provided education and support to Y to meet her needs. School B created an alternative provision plan. The plan included days in school, time at a specialist placement and time at a therapeutic provision. The plan was to support Y back into full time education. Mrs X signed the plan. The education package must meet an individuals needs. The school considered this provision was suitable for Y’s needs at the time.
39. Paragraph nine sets out the Council should monitor the EHC Plan provision during the annual review process and if any concerns are raised. The Council monitored how school B provided the support detailed in the EHC Plan during the annual review process. The Council considered the alternative provision plan suitable for Y.
40. This is a complex matter. Y has complex needs. Paragraph 19 and 20 confirms the law does not define full time education. The Council was entitled to decide the education and plan provision school B provided to Y was ‘suitable’ as Y was not able to engage with full time education. The Council was not at fault.
41. Mrs X reported this matter is continuing and the alternative provision did not lead to Y returning to full time education. The Council issued Y’s final EHC Plan in March 2025. This gave Mrs X an appeal right to the Tribunal if she disagreed with the plan naming school B. It was reasonable for Mrs X to use this appeal right. This matter is therefore outside the Ombudsman jurisdiction, so I cannot make any finding from March 2025.

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Decision

42. I have completed my investigation. I have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman