Summary: Mr X complains that the Council has not dealt with education for his son Y properly, causing missed provision and avoidable distress. Based on current evidence, the Council is at fault because it did not consider alternative education, delayed including provision and did not make educational provision in an Education Health and Care Plan. Y missed educational provision. The Council should apologise, make a symbolic payment to Mr X and make service improvements.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council did not properly provide education for his son Y because it:
• Delayed producing Y’s EHC Plan;
• Failed to make proper SEN provision between November 2024 and January 2025.
• Failed to make tuition provision between January 2025 and March 2025.
• Failed to take account of autism when communicating with his family.
• Did not handle his complaint properly within appropriate timescales.
2. Mr X says Y missed educational provision and he and his family suffered avoidable distress.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. 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.
6. 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

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

Law, guidance and policies

S19 Alternative Education

9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
16. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

17. Councils also have some flexibility with regard to the time taken to set up alternative provision. However, they must make provision from the sixth day in exclusion cases, and they should do so in medical cases where it is clear the absence is for more than 15 school days.

Education Health and Care Plans

18. 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. 
19. 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
20. 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)  
21. 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. 

What happened?

22. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
23. Y was diagnosed with autism in March 2023.
24. In July 2024 Mr X asked the Council to undertake an Education Health and Care Needs Assessment (EHCNA).
25. The Council agreed to an assessment and requested advice to inform an EHC Plan.
• An Occupational Therapy (OT) assessment was completed in August.
• A Speech and Language therapy (SaLT) assessment was completed in September.
• An Educational Psychologist report was completed in October.
26. The Council agreed to issue Y with an EHC Plan.
27. The Council issued a draft EHC Plan for Y at the end of October 2024.
28. In early November 2024, Mr X made a request for Education Other Than At School (EOTAS) for Y.
29. The Council issued a final EHC Plan for Y in mid-November 2024.
30. Y’s EHC Plan was updated with an EOTAS package in mid-January 2025.
31. Mr X complained to the Council in February 2025. The Council provided a stage 1 complaint response at the end of April.
32. Mr X escalated his complaint to stage 2 without any delay.
33. The Council responded to his complaint at stage 2 of its complaints process at the end of June 2025. The Council upheld Mr X’s complaint and accepted that its stage 1 complaint response was late and that it could have included Y’s EOTAS package in his EHC Plan earlier than it did.

Analysis

S19 Alternative Education Provision

34. Evidence provided by the Council about how it considered Mr X’s EOTAS request shows that it was aware Y had not attended school for a significant period of time. The alternative education and EHCP duties are separate. I therefore decided to investigate this further and asked the Council for more information about how it had dealt with this issue.
35. The Council said it had been aware Y was not attending school since July 2024. I have seen evidence to show this in the EHC Needs Assessment request considered by the Council.
36. A final EHC Plan had not been issued. The Council should therefore have considered whether it needed to make s19 alternative education provision in July 2024.
37. I asked the Council whether it had considered making s19 alternative provision from July 2024. The Council said, “The request for EOTAS was considered by Hackney Education on the 18th December 2024 where this was agreed.”
38. The Council has not provided any evidence it considered its s19 duty when it became aware Y was not attending school. The Council appears to have subsequently conflated Mr X’s request for EOTAS, which was a response to the EHCP process, with its duty to make alternative education provision.
39. The Council clearly failed to consider whether it should make s19 alternative provision for Y between July 2024 and December 2024. This is fault by the Council. Due to the summer holiday period, Y suffered injustice because he missed education provision between September 2024 to December 2024, equivalent to a term.

Delayed EHC Plan

40. Mr X requested an ECHNA on 2nd July 2024. As identified in paragraph 19 above, the Council should have issued a final EHC Plan by 20 weeks after this date.
41. The deadline date would therefore have been 19th November 2024. The Council issued Y with a final EHC Plan before this date. This is not fault by the Council.

SEN provision November 2024 to January 2025.

42. The Council’s stage 2 complaint response said, “After the draft report, a co-production meeting was held on 5 November 2024, followed by your official request in writing for the EOTAS package on 6 November 2024. However, I note that it was not included in the final EHCP dated 18 November 2024. The EOTAS package was not included until the amended EHCP was produced on 13 January 2025, which was 8 weeks after the final EHCP. I believe the EOTAS package could have been included sooner and I apologise for this.”
43. I agree with the Council. Y’s EOTAS package should have been included in his EHC Plan earlier. The delay in doing this meant he missed provision until January 2025, adding to the fault and injustice found in paragraph 39 above.

Tuition provision January 2025 to March 2025.

44. I have seen an email from the tutor agency to Mr X which states, “When suitable tutors were available, you were open to meeting them, although the number we could put forward was limited due to availability constraints.”
45. Mr X told me that he had a telephone conversation with the tutor agency in early January 2025 prior to the EHC plan being issued. He said the agency informed him it had told Hackney SEND that it would find it difficult to source suitable tutors at their normal budget level of £75 per hour.
46. Later in the process, the Council allowed the fee level to rise, due to the issues the tutor agency had in sourcing appropriate tutors for Y.
47. On the balance of probabilities, the Council did attempt to find tutors for Y after his EHC Plan was amended to include an EOTAS package in January 2025, but this was unsuccessful due to the agency being unable to source tutors at the rate approved by the Council.
48. The Council had a duty to ensure the provision in Y’s EHC Plan was delivered. However, it wasn’t. This is service failure by the Council. Y Missed educational provision between January 2025 and March 2025, approximately half a term.

Communication and accessibility.

49. Mr X made no request for reasonable adjustments in respect of general communication with members of his family with autism.
50. Mr X says he did ask for an agenda prior to a meeting as his wife was autistic. I note that Mr X has not complained that this specific request was not met.
51. I consider that the language in the Council’s communication and complaint responses is clear. Whilst Mr X may have wished for communication to have been different, this is not fault by the Council.

Complaint handling.

52. The Council accepted that its stage 1 complaint response was late, stating in its stage 2 complaint response that, “It is regrettable that the Council did not respond to your complaint on time. A response should have been provided to you on 26 February 2025 but you did not receive this until 28 April 2025. I cannot see that you were contacted regarding the delays or to advise that an extension was required. This resulted in you having to contact the Council for an update on your complaint. This falls short of the standards outlined by the Council’s complaints policy, and I sincerely apologise for this." I agree with the Council. This was fault.
53. The Council’s stage 2 response apologised for the delay in responding to Mr X’s Stage 2 complaint. It said the delay was due to the complexity of the case and it had contacted him to advise him of the delays and that an extension was required. This is not fault by the Council.
54. The Council’s early acceptance of the fault identified in respect of the delay to the stage 1 complaint response with an apology is an appropriate remedy.

Action by the Council

55. The Council’s stage 2 complaint response said, “In recognition of the time and trouble and distress and inconvenience caused during this time, I award £200 compensation.”

The Ombudsman’s Guidance on Remedies

56. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
57. I do not consider that the remedy offered by the Council is appropriate. I have reviewed Y's EHC Plan and taken into account relevant factors when considering my recommendation below.

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Action

58. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Mr X for the fault found. 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 I have recommended in my findings.
• Pay Mr X £3,000 in respect of the delay incorporating EOTAS in Y’s EHC Plan between September 2024 and December 2024 for a period of one term.
• Pay Mr X £1,500 in respect of the service failure to deliver tuition between January and March 2025 for a period of approximately half a term.
• Review the circumstances of this case and provide an action plan addressing its failure to properly consider s19 alternative education provision.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman