Summary: Mrs X complained the Council failed to provide the provision in her child, Y's Education, Health and Care (EHC) Plan between February 2025 to July 2025. The Council was at fault for failing to provide the provision as detailed in Y’s EHC Plan for one and a half terms and delaying Y’s annual review, frustrating Mrs X’s appeal rights. The Council has already apologised and offered a suitable payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council has failed to deliver provision in line with her child, Y’s EHC Plan after it withdrew home tutoring in February 2025.
2. She says this has caused Y to miss out on necessary provision to meet their needs causing distress, frustration and uncertainty.
3. She says the Council also poorly communicated and provided inadequate responses to her complaints causing additional frustration, uncertainty, time and trouble.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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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What I have and have not investigated

7. I have considered Mrs X’s complaint from October 2024 the issue of Y’s EHC Plan to September 2025 and its final complaint response to Mrs X.
8. I have not investigated any matters after September 2025, these would be subject to a new complaint, to the Council in the first instance.

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How I considered this complaint

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

Relevant law and guidance

Special educational provision

11. A child or young person with Special Educational Needs (SEN) 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.
12. 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 (Children and Families Act 2014, section 42).

SEND Tribunal

13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs and EHC Plans. We refer to it as the Tribunal in this decision statement
14. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

Mediation

15. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.

Annual reviews

16. 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. Following the review meeting the council must issue a decision to either 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) 

Alternative provision and Section 19 Duty

17. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
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. 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).

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;
• 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; and
• 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.

21. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled

The Council’s complaints policy

22. The Council’s complaint policy says it will respond to stage one complaints in 20 working days and stage two complaints within a further 20 working days but no more than 40 working days.

What happened

23. Mrs X’s child Y is of secondary school age with SEN. In October 2024, Y was unable to attend school.
24. In late October 2024 the Council issued an Education, Health and Care (EHC) Plan naming mainstream school A in section I. Mrs X did not make an appeal to the SEND Tribunal.
25. In October 2024 the Council agreed to 12 weeks of home tutoring with provider A. The Council withdrew this tutoring for Y in February 2025 advising Mrs X this was due to exhausted funding.
26. In late March 2025 an annual review of Y’s EHC Plan was carried out.
27. At the beginning of April 2025 Mrs X complained to the Council about the unexpected removal of the tutoring in February 2025. She said Y was without access to the educational provision as directed in their EHC Plan.
28. The Council issued Y’s amended final plan in late July 2025. Mrs X appealed section I and the naming of mainstream provision. Prior to the appeal being heard, specialist provision was named through the mediation process.
29. In September 2025 the Council provided a response to Mrs X, it said:
• it apologised for not providing a stage one response to Mrs X’s complaint. As a result, it had escalated the complaint straight to stage two;
• the annual review in March 2025 had found Y had engaged well with provider A and was ready to return to a school setting, suggesting tutoring had concluded. However, it could not find any evidence of provision for Y from February 2025 to the end of the summer term and apologised for the gap in educational provision;
• it offered a payment £1,385 for a loss of one and a half terms education and specialist provision.

Findings

30. The Council did not communicate its decision with Mrs X that it deemed Y able to return to school. Further it has accepted that it failed to consider its section 42 duties when Y’s tutoring stopped in February 2025. It acknowledged in its complaint response that Y missed out on the education and the provision in section F of their EHC Plan from February 2025 to July 2025 a period of one and a half terms, causing distress, frustration and uncertainty to Mrs X. It has already apologised and offered a suitable financial remedy for the injustice this caused to Mrs X and Y.
31. After the annual review of Y’s EHC Plan in March 2025, the Council should have issued a final amended plan by mid-May 2025. It did not do so until late July 2025, a delay of eight weeks which was fault, delaying Mrs X’s right of appeal.
32. The Council’s final complaint response was a total of 65 days over the maximum 60 days in the Council’s policy for both complaint stages, this is fault. The Council recognised it had failed to adhere to its complaint policy and apologised to Mrs X, escalating her complaint to stage two immediately. The apology and action taken by the Council was appropriate to remedy the injustice caused.
33. I have not made service improvements related to this case. The Council has recently agreed to service improvements about the similar matters in other cases where the Ombudsman investigation found fault. We will monitor the Council’s response and actions to these through our casework.

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Decision

34. I found fault causing injustice. The Council has already offered suitable remedy for the injustice.

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Investigator's decision on behalf of the Ombudsman