Summary: Mrs X complained the Council failed to support her son, Y, back into education. She also complained about the delay in completing the annual review process. Mrs X said Y missed a year of education and Education, Health and Care (EHC) Plan provision. She also said the process distressed her and impacted the family financially. The Council was not at fault.

The complaint

1. Mrs X complained the Council failed to support her son, Y, back into education. She also complained about the delay in completing the annual review process. Mrs X said Y missed a year of education and Education, Health and Care (EHC) Plan provision. She also said the process distressed her and impacted the family financially.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(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)
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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

5. I have investigated Mrs X’s complaint since June 2024. I reference events prior to this for context in this matter.
6. I have not investigated earlier events as Mrs X could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now.

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How I considered this complaint

7. I read Mrs X’s complaint and spoke to her about it on the phone.
8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs X and the Council had an opportunity to comment on a draft decision. I considered their comments before making this final decision.

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What I found

Background information

10. 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. 
11. 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)  
12. 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. 

13. 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 cease to maintain 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) 
14. 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.
15. 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.
16. There is a right of appeal to the 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; and
• amendment to these elements of an EHC Plan.

17. 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)
18. 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.
19. 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.
20. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
21. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
22. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
23. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
24. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
25. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
26. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.

What happened

27. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
28. Y has an EHC Plan. Mrs X said Y stopped attending school B in May 2024. Y’s school put in place a part time timetable to support Y back to school. Y engaged for four days but could not continue going to school. School B sent work home for Y, but Mrs X said this heightened Y’s anxiety about education. School B agreed to not send more work home.
29. School B met with Mrs X at the start of July 2024. The meeting agreed the family would try to support Y back to school in September 2024. If this did not work, school B would discuss changing school.
30. At the end of July 2024, Mrs X asked for a change of school for Y. She asked the Council for an annual review. The Council confirmed school B would arrange the annual review in the new academic year.
31. School B arranged the annual review in October 2024. School B explained it agreed a part time timetable last academic year, but Y could only engage with four days of support. School B confirmed it sent work home for Y, but Mrs X reported this was not suitable. School B said the relationship with the family had broken down and it supported Mrs X’s request to change schools. School B recommended the Council amend Y’s EHC Plan.
32. At the start of November 2024, the Council told Mrs X it would amend Y’s EHC Plan. It sent the amended draft plan. Mrs X agreed the plan the following day. She confirmed the family would like Y to go to school C.
33. The Council asked school C if it could meet Y’s needs and offer him a place.
34. In December 2024, school C said it could not meet Y’s needs.
35. The Council issued the final EHC Plan in December 2024, naming school B.
36. School B spoke to Mrs X and the Council the following day. School B said the EHC Plan was not an accurate reflection of Y. It attached a draft EHC Plan it added comments to at the annual review and apologised for not sending this before. The Council issued a revised draft EHC Plan a week later.
37. Mrs X agreed with the draft EHC Plan in January 2025. The Council sent the revised draft EHC Plan to school C a week later. It asked if school C could meet Y’s needs and offer a place.
38. Mrs X complained to the Council in February 2025. She complained Y had not been in school since April 2024.
39. School C responded to the Council two days later. School C said it could meet Y’s needs. It said a student had just left, meaning it had a place for Y.
40. The Council issued its stage one response at the end of February 2025. The Council did not uphold the complaint. The Council said it knew Y was out of school after the term finished in July 2024. School B said it would try to reintegrate Y into school. The Council said the school tried but it was not successful. The Council said school B offered to send work home, but Mrs X said Y could not engage in work. The school offered this again in early 2025 and Mrs X said Y was then able to engage in education.
41. Two days later, Mrs X said she was not happy with the Council response and asked it to escalate her complaint to stage two.
42. The Council issued an updated final EHC Plan at the start of March 2025. The plan named school C.
43. The Council issued its stage two response at the end of March 2025. The response said school B was responsible for educating Y as he was on roll at the school. The Council said it had no evidence of the incidents Mrs X said led to Y being out of school, and no medical evidence to support Y’s absence from school. The Council said a school must try to reintegrate children into school and school B did this by offering home tuition and sending work home, but Mrs X said this would increase Y’s anxiety. The Council confirmed given Y was on roll and school B offered support, the Council did not have a section 19 duty.
44. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to financially compensate her family.
45. In response to my enquiries the Council stated it did not have a section 19 duty for Y. It confirmed it oversaw what the school was doing and was satisfied with the support it offered Y.
46. Mrs X confirmed Y started at school C in April 2025.

My findings

Education and EHC Plan provision

47. 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”. The Council should also ensure a child is receiving the provision in the EHC Plan.
48. 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.
49. The Council says the educational provision could meet Y’s needs and provide the provision set out in the EHC plan. The Council confirmed school B offered different ways to support Y back to school. When this was not successful, it offered to provide tuition or send work home. Mrs X refused this saying Y could not engage with the education. The Council oversaw school B’s actions. The Council therefore found there was suitable education and plan provision available to Y. For this reason, it says it did not have a duty to provide an alternative education.
50. The Council considered the information available and decided it did not have a section 19 duty. The Council was entitled to decide the education and plan provision offered to Y by school B was ‘suitable education’ so it did not have a section 19 duty. The Council was not at fault.

EHC Plan

51. School B held the annual review at the start of October 2024. The Council should have issued its decision by the start of November 2024 and issued the final EHC Plan by the end of January 2025.
52. The Council issued its decision with the draft EHC Plan at the start of November 2024. The Council was not at fault. Mrs X agreed with the draft plan.
53. The Council issued the final EHC Plan in December 2024. This is within the statutory timescales. The Council was not at fault.
54. Mrs X said the EHC Plan was not accurate and the Council agreed to amend it. School B then told the Council it did not send a document with changes to the plan, after the annual review. When the Council received the information, it agreed to amend the plan. It was reasonable for the Council to amend the plan when it received new information, but this is not within the annual review process. The Council was not at fault.

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Decision

55. I have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman