Summary: The Council failed to consider its duty to provide a suitable alternative education to Mrs X’s child, Y, when they stopped attending school. The Council also delayed issuing Y's EHC Plan and failed to secure the provision in the Plan. This has resulted in Y missing six terms of education and caused Mrs X frustration, distress and uncertainty. The Council has agreed to apologise to Mrs X and make a payment to recognise the impact of its failings.

The complaint

1. Mrs X complained the Council delayed issuing an Education, Health and Care (EHC) Plan for her child, Y, and failed to provide a suitable alternative education when Y stopped attending school. She also complained the Council failed to secure the provision in Y’s EHC Plan once it was issued. She says this has caused significant distress. She has had to give up her job to educate Y and pay for private provision. Mrs X wants the Council to apologise, provide Y with a suitable education and compensate her.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs 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

Education, Health and Care (EHC) Plans

8. 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. 
9. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  

10. 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)  
11. 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

12. 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.
13. 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)
14. 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

15. Mrs X’s child, Y, is autistic and struggled to attend school up to December 2023. In January 2024 Y stopped attending school completely but remained on the school roll. At the same time Mrs X asked the Council to carry out an Education, Health and Care (EHC) need assessment of Y. The Council acknowledged this request on 12 January 2024.
16. The Council agreed to the EHC needs assessment in February 2024. It received reports from an occupational therapist and educational psychologist and agreed to issue an EHC Plan. It issued a draft EHC Plan on 5 April 2024 and began consulting with schools for Y.
17. Following the consultation one school said it could meet Y’s needs. Mrs X decided this school was not suitable and formally requested an Education, Other than at School (EOTAS) package in early July 2024. Following this another special school said it could meet Y’s needs and Mrs X decided it was a suitable placement. However, the Council’s panel decided it was not a suitable placement for Y and recommended an alternative placement type in an SEN Hub attached to a mainstream school.
18. Y’s school began sending schoolwork home for Y from September 2024 and asked Mrs X to bring Y to school once a week to re-integrate Y.
19. Mrs X complained to the Council on 3 December 2024. She disagreed with the panel decision and the recommendation of the alternative placement. She also complained the Council had failed to provide Y with a suitable alternative education since January 2024. She said the work being sent home was not suitable and taking Y to school once a week was causing Y distress.
20. The Council responded at stage one of its complaint process on 30 December 2024. It said it was yet to decide on Y’s final placement and issue a final EHC Plan.
21. In January 2025 Mrs X told the Council she was considering removing Y from the school roll as she was concerned at the negative impact on Y’s mental health. She told the Council she did not want to electively home educate Y and wanted them to receive an education from the Council. Mrs X asked the Council to consider her complaint at stage two of its complaint process on 30 January 2025. Mrs X took Y off the school roll in February 2025.
22. In February 2025 Y’s school notified the Council that Mrs X wished to electively home educate Y. The Council’s home education team contacted Mrs X who confirmed the education in place at home for Y.
23. The Council issued Y’s final EHC Plan on 18 March 2025. The final EHC Plan was similar to the draft issued in April 2024. It referenced dates in the past and school-based provision such as 1:1 support from a member of staff. It named “a specialist setting” as Y’s placement.
24. The Council responded to Mrs X’s stage two complaint on 30 May 2025. It said it was still consulting on a school place for Y and Mrs X had a right of appeal over the final EHC Plan. It said it considered the school where Y had been on roll to be suitable, and Mrs X had decided to electively home educate Y. Mrs X complained to the Ombudsman.
25. In response to our enquiries the Council said it believed its section 19 duty did not apply as Mrs X had decided to electively home educate Y. It also said the information it held did not suggest Y could not attend her current school. It accepted it failed to secure the provision in Y’s EHC Plan once issued.

My findings

26. Y was out of school from January 2024. In response to Mrs X’s complaint the Council said it did not provide alternative education provision as Mrs X chose to electively home educate Y. This was not the case. Mrs X did not email the Council to discuss home education until January 2025, a year after Y had stopped attending school. The Council has provided no evidence to suggest Mrs X decided to electively home educate Y between January 2024 and January 2025. There is no evidence of the Council considering whether to provide a suitable alternative education for Y when they stopped attending school. This was fault. While the Council says Y’s school remained suitable, there is also no evidence of the Council trying to reintegrate Y into school during this time.
27. Mrs X took Y off the school roll in February 2025. In her email to the Council, in January 2025, she said her preference remained for Y to receive an education from the Council, and she was not electively home educating Y. While the Council satisfied itself Mrs X was providing a home education for Y, she was clear this was not her preference, and she was only doing this to ensure Y received an alternative education. From January 2025 onwards the Council continued to fail to provide Y with a suitable alternative education or take steps to reintegrate them into school. Y remains out of school and there is still no alternative provision in place for Y.
28. During this time the Council also carried out an EHC needs assessment of Y. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council acknowledged Mrs X’s request for an EHC needs assessment of Y on 12 January 2024. It agreed to assess Y and issue an EHC Plan within the statutory timescales, issuing a draft EHC Plan on 5 April 2024. The Council should have then issued Y’s final EHC Plan by 31 May 2024. It did not issue the final EHC Plan until 18 March 2025, a delay of 41 weeks. This was fault.
29. The Council says it has not met these timescales due to the increased demand for EHC needs assessments. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Y’s EHC needs assessment is therefore fault (service failure).

Impact on Y and Mrs X

30. The Council has failed to provide Y with a suitable alternative education from January 2024. It has also failed to secure the provision in Y EHC Plan from 31 May 2024; the date it should have finalised Y’s EHC Plan. The Council says Y’s school remained suitable yet named specialist provision in Y’s EHC Plan. The Council has struggled to identify a specialist school for Y but was fully aware of these difficulties when it named specialist provision in Y’s final EHC Plan. The Council was under a duty to secure this provision and failed to do so. In total Y has missed six terms of education and SEN provision between January 2024 and December 2025.
31. The failure to consider its section 19 alternative education duty and delay in finalising Y’s EHC Plan has also caused Mrs X frustration, distress and uncertainty and delayed Mrs X’s right of appeal to the SEN Tribunal.
32. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
33. Considering Mrs X was providing Y with some education at home, I have recommended £1200 per term as a symbolic remedy for the missed alternative education and special educational provision. in line with our Guidance on Remedies.
34. The Council has explained the efforts it is making to resolve the delays in the EHC needs assessment process. This includes streamlining its processes and strengthening its communications, so everyone is clear on their responsibilities. Because the Council is already taking suitable steps to address the delays, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

35. Within one month of the final decision the Council has agreed to:
1. Apologise to Mrs X for its failure to provide Y with suitable alternative provision, secure the SEN provision in their EHC Plan and the delays in finalising Y’s EHC Plan. 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.
2. Pay Mrs X £7,200 to recognise the impact of its failure to provide Y with a suitable alternative education and then secure the provision in Y’s EHC Plan for a total of six terms.
3. Pay Mrs X £500 to recognise the impact of its delay issuing Y’s final EHC Plan.
4. Carry out an emergency review of Y’s EHC Plan to ensure it reflects Y’s current needs and is amended as appropriate.
5. Consider what alternative education provision Y requires and take steps to put the agreed provision in place.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman