Summary: We found fault on Mrs Y’s complaint about the Council failing to ensure her son Z received the provision set out in his Education, Health and Care plan. It failed to show it considered whether alternative provision was needed and whether provision under his plan was being provided when circumstances changed. It also delayed holding an annual review of his plan. The Council agreed to send her an apology, £3,600 for lost educational provision, £200 for the delay, and review its procedures to ensure the failures found cannot be repeated on future cases.

The complaint

1. Mrs Y complains that despite the Council not telling her it approached several schools, including the one her son was registered with but not attending, who all said they were not the appropriate setting for him, it continued to fail to provide him with:
1. provision set out in his Education, Health and Care (EHC) plan; and
2. alternative education provision when he was unable to attend school.
2. As a result, he missed months of education as his needs were not met which caused him a great deal of anxiety, affected the wellbeing of the family, as well as causing financial loss.

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The Ombudsman’s role and powers

3. 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)
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. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
7. 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.
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said section 26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
10. 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

11. Usually, we would investigate Mrs Y’s complaint from June 2023. This is because she complained to us in June 2024. The law says any complaint about the Council’s actions before June 2023 is late. I exercised discretion to investigate from January 2023. This was because she had continued to take issue with the Council about her concerns which involved continuing fault.
12. I have not investigated any complaint Mrs Y has about the naming of a school, or the provision the Council decided to set out in the EHC plan. This is because she had the right of appeal against those decisions, which I note she used.
13. Nor have I investigated any complaint she has about Z missing free school meals. This is because we do not have jurisdiction to investigate it. The duty to provide free school meals is not the responsibility of the council but the maintained school (Transfer of Functions Concerning School Lunches etc.) (England) (No.2) Order 1999 and Transfer of Functions Concerning School Lunches etc. (England) (Amendment) Order 2013). This means the school is not a body in our jurisdiction.

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How I considered this complaint

14. I considered evidence provided by Mrs Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs Y and the Council. I considered their responses.

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What I found

Education, Health and Care Plan

15. A child with special educational needs may have an EHC plan. This 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 education or name a different school. Only the Tribunal can do this.
16. 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)  
17. 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 show appropriate oversight in gathering information to fulfil their legal duty. As 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. 

18. 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.

19. The courts decided 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)
20. This means 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.
21. 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 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.
22. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

Alternative Provision

23. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
24. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
25. Suitable education means efficient education suitable to a child’s age, ability and aptitude, and to any special educational needs they may have. (Education Act 1996, section 19(6))
26. The education provided by the council must be full-time unless the council decides 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)
27. The law does not define full-time education but, children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
28. A council may arrange any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution. It may only do so if satisfied it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place. (section 61, Children and Families Act 2014)
29. The courts considered the circumstances where the section 19 duty applies. Case law states 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)

What happened

30. Mrs Y’s son, Z, who is 12 years old, has autism and suffers from anxiety. He had an EHC plan since 2020. She complained he missed several months of school due to the Council failing to meet his needs, which caused him anxiety. She argued the Council’s failure to provide suitable education led to his deregistration from school in 2023.
31. Mrs Y asked for Z to receive ‘education other than at school’ (EOTAS), but this was refused as the Council considered his needs could be met within a school. She claimed this was despite schools telling the Council they were not an appropriate setting for him.
32. She complained Z did not receive free school meals during this period which added to her expenses. She provided invoices amounting to £1,590 for various activities and sessions away from school in 2024 and 2025.

2023:

33. In March, Z was attending school half the time. The school suggested different approaches to support him which included online learning, reduced timetables, a change of class and teacher, and an allocated member of staff to keep in touch. The school would consider alternative provision if Mrs Y could provide medical evidence he was too unwell to attend school. She did not do so. The school maintained Z’s non-attendance was due to a relationship breakdown between Mrs Y and the school, not any medical needs of Z. In response to our investigation, the Council accepted the school placement broke down this month.
34. In June, there was an annual review meeting which the Council also accepted was late as it was due in December 2022. Mrs Y received a letter from the Child and Adolescent Mental Health Service (CAMHS) which said the impression gained, based on a conversation with her and information/observations from Z’s CAMHS Care Coordinator, was he appeared to have anxiety. This was mostly social anxiety. He had significant anxiety around school and avoided anything to do with school.
35. In July, her request for EOTAS was considered by the Special Educational Needs and Disability panel (the panel) but it did not agree to it.
36. From September, Z was registered for elective home education. This meant the Council did not need to make any provision under his EHC plan. The panel again considered her request for EOTAS or elective home education provision. It would not agree a personal budget for an EOTAS package as the Council was not responsible for provision. The Council’s view remained the school could meet his needs. It agreed a significant part of the EHC plan required revision.

2024:

37. In March, there was an annual review meeting and the Council agreed to amend the EHC plan.
38. In May, the final amended EHC plan was issued. The Council also told Mrs Y her request for EOTAS was refused. This explained the reason was the section 61 criteria had not been met. To meet it, the Council had to exhaust all options and ‘must have evidence that no school would be appropriate. As only 4 schools have been consulted’, the panel did not consider the Council had exhausted all options. It did not consider there was enough evidence and so remained of the view his needs could be met in specialist provision. It also said there was no medical evidence which said he could not attend school, although it noted he had anxiety mainly related to school. If she disagreed with the decision, she could appeal it to the Tribunal.
39. Mrs Y complained to the Council saying Z missed months of school between 2021-2023 and was not provided with suitable education. The Council responded the following month. It noted consultations were sent to several schools in June 2023 as part of Z’s annual review of his EHC plan. Of the five schools consulted, the Council told them Mrs Y had expressed a preference for one of them to be named in his EHC plan. This was incorrect and the Council apologised for the mistake.
40. In July, Mrs Y provided the Council with medical evidence from CAMHS which recommended Z receive EOTAS, although the exact date of the report is not given on it. This recommended Z having, ‘an identified alternative educational provision’. It went on to say the, ‘high levels of anxiety associated with attending an educational establishment for [Z] and his family mean that he is currently unsuitable for a classroom setting’. The panel again refused her request for EOTAS having considered all the evidence. The CAMHS report was not listed which I have assumed was because it was issued after the panel met.
41. In September, there was an annual review (emergency) which also considered the request for EOTAS, which was again rejected. The July CAMHS report was considered. It agreed to her request to electively home educate Z. CAMHS discharged Z.
42. The Council issued the draft EHC plan in November and the following month, issued the final EHC plan. Several days after, it received a letter from CAMHS saying a school based setting would not be appropriate for Z. It said Z had significant levels of anxiety associated with any educational establishment. It concluded ‘a school-based setting would be inappropriate’ for him ‘at this point in time’. A conventional school environment did not align with his emotional, social, and educational needs.

2025:

43. In February, the Council sent Mrs Y its final complaint response after she had complained to us. It explained it considered the CAMHS evidence and if she disagreed with its decision, she had the right to challenge it to the Tribunal. The head teacher of Z’s named school said Mrs Y would not engage with them to meet Z’s needs. The school had sought multi-agency support from the police, social care, the transitions team, CAMHS, and the Council to resolve problems and get Z back into school. The school maintained there was provision for him there.
44. The Council accepted there was a period when the school placement broke down when Z should have been provided with interim education. It had asked why Z had not been referred to its internal teaching service at the time. It also explained the panel had considered her request for EOTAS but decided it did not meet the legal threshold. The Council continued to believe Z could attend a suitable school which would need identifying. It accepted he was currently unsuitable for a classroom setting. Once a school was found, Z may need supportive transition through an alternative package of education to build his self-confidence, for example.
45. In March, Mrs Y appealed the final EHC plan to the Tribunal. She told it she no longer wished to electively home educate Z. Tutoring was proposed but Mrs Y rejected the offer.
46. In April, the Council issued an EHC plan which named a different school for Z than before. This named school took account of the medical evidence which said Z was currently unsuitable for a classroom setting. It was updated as part of the Tribunal proceedings. The school is a specialist setting which offered very small group settings and therapeutic support. It would take on a key worker at additional cost. The Council also pointed out the placement was in line with the CAMHS recommendations.
47. The Council confirmed Mrs Y has ongoing Tribunal proceedings about sections B, F, and I of the EHC plan issued in December 2024.
48. It also decided the reports from CAMHS in 2024 did not say Z was too ill to attend school, just that a classroom setting was currently unsuitable for his needs which the Council accepted. It accepted that between September 2022 and February 2023, the Council should have considered its duties under section 42 and whether this applied to his missed education between these dates.
49. It noted he had access to a full time placement at a specialist setting at the time and the school made reasonable adjustments to support his return to school. Mrs Y also had a responsibility to support Z attend the placement. It explained by this point in the academic year, Z was attending school for half the time. The Council also considered it appropriate to make an offer of a financial remedy following the breakdown of the school placement in March to July 2023.
50. Based on this, the Council offered:

• £ 726.60 (21 weeks from September 2022 to February 2023).
• £2,769.30 (15 weeks from March to July 2023).

Total: £3,495.90

My findings

51. I found the following on this complaint:
1. The Council accepted it failed to consider whether to provide Z with interim education (alternative provision) between January and February 2023. On balance, I am satisfied it also failed to satisfy itself the provision under the EHC plan was being made as well. These failures were fault.
2. By March 2023, Z’s placement at the school had broken down. This was accepted by the Council. On balance, I am satisfied it failed to consider whether alternative provision was needed following the breakdown to when the annual review was held in June. I am also satisfied it failed to satisfy itself the provision under the EHC plan was being made during this period. These failures were fault.
3. The annual review held in June was late as this should have been held six months earlier. This was fault.
4. I consider the identified fault caused Mrs Y and Z an injustice. They were caused frustration, uncertainty, lost the opportunity to have the situation considered and possibly resolved sooner, along with lost educational provision.
5. I have taken account of the periods when Z was registered for elective home education. This meant the Council was not obliged to make provision under the EHC plan.
6. During 2024, there was an annual review meeting. While the Council continued to refuse to make EOTAS provision, it agreed to arrange a specialist setting for Z. If Mrs Y was unhappy with the specialist setting, or the decisions to refuse her request to include EOTAS in the EHC plan, she could appeal the decisions to the Tribunal.
7. In December 2024, it received evidence from CAMHS that Z was currently unsuitable for a classroom setting and made provision for a specialised setting. Again, if Mrs Y was unhappy with this decision, she had the right to appeal it to the Tribunal which she has done. The appeal is ongoing.

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Action

52. I took account of our guidance on remedies. When considering the lost educational provision, I considered the time periods when Z was not receiving any education or provision under his EHC plan, his age, his anxiety, his needs, and the acknowledgement of the breakdown of the school placement.
53. I also took account of the Council’s financial offers and its reasoning behind them. Part of its offer involved a period not covered by this investigation (September to December 2022). While this part is outside of this investigation, I have assumed the Council will go on to make a payment to cover this period when the final decision is made on this case.
54. The Council agreed to take the following action within four weeks of the final decision on this case:
1. Send Mrs Y a written apology for the injustice caused by the failure to: consider whether her son was receiving the provision under the EHC plan he should have been; consider whether it needed to provide alternative education provision; hold the annual review on time.
2. Pay £800 to Mrs Y for the lost educational provision between January to February 2023 (about half a term x £1,600).
3. Pay £2,400 to Mrs Y for the lost educational provision between March and June 2023 (about one term x £2,400).
4. Pay £200 to Mrs Y for the delay carrying out the annual review.
5. Review procedures to ensure it considers whether provision under an EHC plan is being made when a child is not attending school.
6. Review procedures to ensure it considers whether it needs to make alternative education provision when a child with an EHC plan is not attending school.
7. Review why the annual review was not held on time and ensure delays are not repeated on future cases.
55. The Council should provide us with evidence it has complied with the above actions.

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Decision

56. I found the following on Mrs Y’s complaints against the Council:

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Investigator's decision on behalf of the Ombudsman