Summary: The Council failed to consider its section 19 duty, delayed completing annual reviews of an education, health and care plan and failed to communicate with Mrs X. That meant Mrs X’s daughter missed out on education, Mrs X experienced distress and Mrs X’s appeal right was delayed. An apology and payment to Mrs X is satisfactory remedy.

The complaint

1. The complainant, Mrs X, complained the Council:
• failed to act to ensure her daughter received education;
• delayed completing annual reviews for her daughter’s education, health and care plan (EHC Plan); and
• failed to communicate with her.
2. Mrs X says the Council’s actions caused her distress and meant she had to amend her working hours. Mrs X says her daughter missed out on education and experienced mental and emotional distress.

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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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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(i), as amended)
8. 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

9. I have exercised the Ombudsman’s discretion to investigate what has happened since the end of 2022. That is because I am satisfied it makes sense to look at the entire period as Mrs X alleged continuing fault. I am not, however, investigating any failure to put in place education after January 2025. That is because Mrs X had, and exercised, her right of appeal when she received her daughter’s EHC Plan.

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Mrs X and the organisation 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

Special educational needs

12. A child with special educational needs (SEND) may have an EHC Plan. The EHC Plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure arrangements in the EHC Plan are put in place and reviewed each year.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's EHC Plan, or the fact no school or other provider is named.
14. The Council has a duty to secure the special educational provision in an EHC Plan for the child or young person. (Section 42 Children and Families Act).
15. Councils must review EHC Plans as a minimum every 12 months. (SEND code of practice paragraphs 9.166 and 9.186)
16. Within four weeks of a review meeting, a council must notify the child's parent(s)/ guardian(s) of its decision to maintain, amend or discontinue the EHC Plan. (SEND code of practice paragraph 9.176)
17. Where a council proposes to amend an EHC Plan, it should start the process of amendment "without delay". The law says it must send the child's parent(s)/guardian(s) 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 pro-posed changes. (SEND code paragraphs 9.176 and 9.194)
18. Following comments from the child's parent(s)/guardian(s), if a Council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the proposed amendments to the parent(s)/guardian(s). (SEND code of practice paragraph 9.196)

Alternative educational provision

19. The Education Act 1996 says if a child of compulsory school age cannot attend school for "reasons of illness, exclusion from school or otherwise" the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
20. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
21. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the Council offers a child less than full-time education, it must regularly review the situation.
22. 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)

The Ombudsman’s focus report - supporting children out of school. This says:

23. A common thing we see going wrong, is when councils fail to make timely or clear decisions about whether they have a section 19 duty. We recognise these are often finely balanced decisions, and it can take time to draw together conflicting evidence from a range of sources.
24. But in all cases, councils should act decisively about whether alternative education is required, and tell parents about the outcome.
25. There are several key steps a council can take early on to help make decisions decisively and robustly:
• If a council discovers a child is missing education, it should consider the reasons for this, make any necessary enquiries, and decide whether it has a duty to make alternative provision. We have been critical of councils who refuse to listen to parents' concerns, and say that referrals for alternative education must be made by schools.
• If a council requires medical or other evidence to support the absence it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, for example, long waiting-list times for mental health services, and keep an open mind to any evidence it receives.
• Councils should review the attempts the school is taking to support the child. This might involve sending work home for the child to complete, arranging disability related adjustments, placing them on a reduced timetable, or providing online education as a short-term measure.
26. 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.
27. Once a council has considered the relevant evidence, we expect to see a clear written record of its decision, explaining whether it considers the section 19 duty applies.

What happened

28. Mrs X’s daughter has special educational needs and an EHC Plan. Mrs X’s daughter was due to transition to a secondary school placement in September 2022. The Council issued a final EHC Plan naming school A in February 2022. Mrs X’s daughter began attending school A in September 2022.
29. Mrs X’s daughter began to experience difficulty attending school due to anxiety soon after she began at school A. The school put in place various measures to try to reintegrate Mrs X’s daughter. That included a reduced timetable, 1:1 support, alternative provision at an equine centre, an open timetable and online tuition. None of that worked and at an annual review in June 2023 school A and Mrs X asked for a new placement.
30. The Council agreed to consult two schools in January 2024 but did not consult both schools until April 2024, despite school A chasing the Council in February 2024. Neither school could offer Mrs X’s daughter a place.
31. The Council’s casework panel considered the case on 9 May 2024 and said the Council should hold a further annual review if it could not identify an alternative school place. That annual review took place on 24 June. At that annual review Mrs X asked for education other than at school.
32. The Council’s casework panel considered the case again in July and September 2024 and asked for further information. Mrs X agreed to put together a proposal for education other than at school. Mrs X provided that to the Council in November.
33. At the end of December the Council decided it did not have evidence to show Mrs X’s daughter’s needs were so severe they could not be met in a school setting. The Council therefore finalised the EHC Plan and issued a final EHC Plan on 17 January 2025 naming school A. Mrs X appealed.
34. School A made clear it could not meet Mrs X’s daughter’s needs. The Council agreed to put alternative provision in place to meet its section 19 duty pending the outcome of Mrs X’s appeal.
35. Following a complaint the Council accepted it had delayed completing the annual reviews held in 2023 and 2024, delayed amending the EHC Plan and failed to communicate effectively with Mrs X. As remedy for the distress, time and trouble and delayed appeal rights the Council offered a financial remedy of £1,800.

Analysis

36. Mrs X says the Council failed to act when it knew her daughter was not receiving education. Mrs X says this means her daughter missed out on education from November 2022. I am considering the period up to January 2025 when the Council issued a final EHC Plan naming school A.
37. The evidence I have seen satisfies me Mrs X’s daughter began experiencing difficulties accessing her education placement when she moved to school A in September 2022. I am also satisfied the evidence shows school A made multiple attempts to adjust the education available to Mrs X’s daughter to enable her to attend school. Unfortunately none of those attempts were successful. I am satisfied though it would have been reasonable for the Council to leave school A to attempt alternative education arrangements with a view to reintegrating Mrs X’s daughter before it considered its section 19 duty. I therefore do not criticise the Council for any lack of action before June 2023.
38. I am satisfied though by the time of the annual review in June 2023 the Council knew Mrs X’s daughter was still not attending school despite the considerable efforts from school A. The Council also knew at that point both school A and Mrs X had asked for a change of placement. I would therefore have expected the Council to consider its section 19 duty at that point. I have seen no evidence the Council did so. That is fault.
39. The Council accepts it failed to take any action on the 2023 annual review until it consulted two schools in early 2024. That again is fault. The Council also accepts when those two schools said they could not offer Mrs X’s daughter a place the Council did not make any further attempts to identify an alternative school. That is also fault. I am particularly concerned about that because it was a missed opportunity for the Council to address the lack of education for Mrs X’s daughter.
40. I am also concerned the Council again delayed following the annual review in June 2024. I am satisfied that annual review made clear Mrs X’s daughter was not accessing education. Again, I would have expected the Council to consider its section 19 duty. Failure to do that is fault. Delay issuing the final EHC Plan following the review is also fault, which delayed Mrs X’s appeal rights.
41. I recognise when the Council issued a final EHC Plan in January 2025 it still named school A. However, I also note the Council put in place alternative provision to meet its section 19 duty at that point as it recognised Mrs X’s daughter was not receiving education. That is the first point at which I am satisfied the Council considered its section 19 duty. I consider it likely, on the balance of probability, if the Council had considered its section 19 duty it would have put in place alternative provision for Mrs X’s daughter following the annual review in June 2023. I am therefore satisfied because of the Council’s failure to do that Mrs X’s daughter missed out on education between June 2023 and January 2025.
42. The evidence I have seen satisfies me Mrs X’s daughter received very little education between those dates and did not receive the provision in her EHC Plan. I also consider it unlikely though Mrs X’s daughter would have been able to access full-time education. Taking that into account I consider £1,200 per term a suitable remedy to reflect the missed education and SEN provision, the distress that caused and the impact that had on the family. That makes a total financial remedy of £5,400. I also recommended the Council apologise to Mrs X and her daughter for the failures in this case, which includes failures in communication which the Council has already accepted. The Council has agreed to my recommendations.
43. I do not make any recommendation for any procedural remedies. That is because I am satisfied the Council carried out section 19 training for its officers in November 2025. I am satisfied that addresses the issues that arose around provision of education. I am also satisfied the Council has in place an improvement plan to address issues with its SEN department. That includes work around improving the Council’s management of the EHC review process.

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Action

44. Within one month of my decision the Council should:
• apologise to Mrs X and her daughter for the distress and upset they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet; and
• pay Mrs X £5,400.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I find fault causing injustice. The Council will take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman