Summary: The Council failed to provide Miss X’s daughter, K, with suitable education when she was out of school and delayed issuing her final Education, Health and Care (EHC) Plan. These failings resulted in K missing education and caused Miss X uncertainty and distress. The Council has agreed to apologise and make payments to remedy their injustice. It has also agreed to make service improvements.

The complaint

1. Miss X complains that the Council has failed to provide her daughter with sufficient suitable education since October 2023. She also says the Council delayed issuing her daughter’s final EHC Plan.
2. Miss X considers these failings have adversely affected her daughter’s education and wellbeing. She says that she has also incurred financial costs paying for some of the required provision herself.

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The Ombudsman’s role and powers

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. 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.
5. 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)
6. 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.
7. 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to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.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.
8. 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)
9. 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

10. Miss X complained to us in June 2025. We would not normally investigate matters which occurred more than 12 months before a complaint is made to us. However, I have exercised discretion to investigate matters dating back to November 2023, when the Council became aware that K had stopped attending school.
11. For the reasons explained in paragraphs five to seven, I cannot investigate Miss X’s complaints about the provision after the final Plan was issued in November 2024, or about the Council’s handling of her preferred school placement.

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How I considered this complaint

12. I considered evidence provided by Miss X and the Council, as well as relevant law, policy and guidance.
13. Miss X and the Council have 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

Relevant law and government guidance

Education, Health and Care (EHC) plan

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
15. 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, and the school or placement specified in their EHC Plan.

Section 19 duty

16. 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))
17. The "otherwise" category provides for a wide range of scenarios where the Council may have a legal duty under section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. (Statutory guidance ‘Alternative Provision’ January 2013)
18. 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)
19. 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))
20. 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)
21. Councils should begin the process of arranging suitable alternative provision as soon as it is clear an absence will last more than 15 days. (Arranging Alternative Provision)

Background

22. Miss X’s daughter, K, is 11 years old and has special educational needs. She experienced difficulties attending school for some time and stopped attending altogether in October 2023, when she was 8 years old. Miss X considers the school was unable to meet K’s needs.
23. K did not receive any education between October 2023 and June 2024.
24. In April 2024, the Council accepted it had a duty to arrange alternative provision for K. She stated receiving some one-to-one mentoring in June 2024.
25. The school requested an EHC needs assessment in December 2023. The Council issued K’s final EHC Plan in November 2024.
26. Miss X appealed to the SEND Tribunal in December 2024. She appealed the sections of the Plan which set out K’s needs, the provision required to meet those needs, and the school named in the Plan.

Key issues and analysis

EHC needs assessment and plan

27. The school requested an EHC needs assessment in December 2023. The Council agreed to carry out an assessment, which was completed on 3 May 2024. It issued a draft EHC Plan on 30 August 2024 and a final Plan on 19 November 2024.
28. The SEND Code of Practice says that the process from a request for an EHC assessment to the issue of a final EHC plan should take no more than 20 weeks.
29. In this case, the Council took almost 50 weeks to issue the final Plan. This significantly exceeded the statutory timescale and was fault.
30. Had the Council complied with the statutory timescale, Miss X would have received the final EHC Plan and associated appeal rights much sooner. The delay caused avoidable frustration and uncertainty and delayed her opportunity to challenge the content of the Plan through the Tribunal process.
31. The final Plan named K’s existing school, which said it was unable to meet her needs. The Council told Miss X that it had consulted her preferred school, a specialist setting, but had not received a formal response.
32. In March 2025, Miss X’s preferred school confirmed that it had a space for K to start from September 2025. The place was not secured and in May 2025, the school told the Council that it no longer had any spaces.
33. Miss X then complained to the Council that it had failed to secure a suitable placement.
34. I consider this issue to be connected to matters which Miss X is appealing to the Tribunal. I therefore have no jurisdiction to investigate it for the reasons set out in paragraphs five to seven.

Section 19 duty

35. K stopped attending school on 13 October 2023. The school informed the Council on 15 November 2023.
36. The Council says the school was supported to consider the reasonable adjustments it could make to support attendance, through a small step plan. It says that when it was clear that this support was not having an impact, the school made a referral to the education key worker team. That referral was declined on 5 December 2023.
37. On 6 December 2023, Miss X contacted the Council and explained that K was unable to attend school. She requested alternative educational provision under section 19 of the Education Act 1996.
38. A Team Around the Family meeting was arranged and a further referral to the education key worker team was accepted on 14 February 2024.
39. The Council says it advised the school on 7 March 2024 to make a referral for section 19 provision. That referral was accepted on 30 April 2024.
40. Under section 19 of the Education Act 1996, councils must arrange suitable education for children of compulsory school age who, because of illness, exclusion or otherwise, would not receive suitable education without such arrangements.
41. The duty is triggered when the council knows, or ought reasonably to know, that suitable education is not reasonably available and accessible to the child.
42. Councils are not required to intervene where a child is able to attend school with support, or where a school is making suitable alternative arrangements. However, councils should be able to demonstrate that they have objectively considered whether the education available to the child is suitable.
43. By December 2023, the Council knew K was not attending school, knew attempts to support her return had been unsuccessful, had received a direct request for alternative provision from Miss X and knew K had already missed significantly more than 15 school days.
44. In these circumstances, I would expect to see evidence that the Council considered whether suitable education remained available and accessible to K and whether it had a duty to arrange alternative education. The Council did not do so until April 2024. This was fault. As a result, K went without any education for a substantial period.

Alternative provision

45. Following acceptance of the referral, alternative provision began on 19 June 2024.
46. The records indicate that K received a two-hour one-to-one mentoring session once a week until September 2024, when it was increased to two sessions each week.
47. Suitable education should be full-time (unless a child’s health means full-time would not be in their best interests), and appropriate to the child’s age, ability, aptitude and any special educational needs.
48. The Council says it did not provide full-time education because it considered this would not have been in K's best interests.
49. Based on the evidence available, I accept it was reasonable for the Council to begin with a reduced package of support given K's circumstances and prolonged absence from education. However, councils should keep alternative provision under regular review to ensure it remains suitable and to consider whether it can be increased.
50. The records show that, during a review in July 2024, it was decided to increase the mentoring to four hours each week from September 2024. However, I have seen no evidence that it subsequently considered whether the provision should be further increased or whether any more formal learning should be introduced.
51. I am therefore not satisfied that the Council properly reviewed whether the provision remained suitable. This was fault. As a result, there is uncertainty about whether K should have received additional educational provision after September 2024.
52. After K’s final EHC Plan was issued, the Council provided the school with additional funding and stopped the section 19 provision.
53. Miss X complained to the Council that it was not providing the school with sufficient funding to meet K’s needs, and that she had to fund additional tuition herself.
54. I consider this is connected to matters which Miss X is appealing to the Tribunal. I therefore have no jurisdiction to investigate it for the reasons set out in paragraphs five to seven.

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Action

55. The Council has agreed to take following actions within four weeks of my final decision:
• Apologise to Miss X and K for the faults identified in this statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance when making the apology.
• Make a payment of £3000 to recognise K’s loss of educational provision and the frustration, uncertainty and distress Miss X experienced as a result of the Council’s failings.
56. Since the events considered in this investigation, the Council has introduced a new section 19 policy, which it has recently updated.
57. The Council has also recently provided information about its SEN transformation programme, which includes a review of its statutory duties, end-to-end processes and operational responsibilities, together with the development of new guidance and standard operating procedures for staff.
58. Given the action the Council has already taken, I do not consider it necessary to make any service improvement recommendations.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. I have completed my investigation and uphold Miss X’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman