Summary: Ms X complained about how the Council secured alternative provision for Y while he was out of school and delays in securing provision set out in his Education, Health and Care Plan. The Council was at fault for delay, causing uncertainty. The Council has agreed to apologise and make payment to recognise the injustice caused.

The complaint

1. Ms X complains the Council failed to make alternative provision available to her son, Y while he was out of school between September 2023 and September 2025 and failed to secure Occupational Therapy (OT) provision until April 2025. Ms X also complains the Council delayed in securing Speech and Language Therapy (SALT) provision set out in Y’s Education, Health and Care (EHC) Plan and delayed in responding to her complaint. Ms X says this has had a real impact on her and Y’s mental health.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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(1), 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 investigated Ms X’s complaint as set out above between September 2023 and September 2025. Any mention below to events that took place either before September 2023 or after September 2025 are for reference only.
10. I have not investigated any matters related to Ms X’s appeals to the Tribunal. This includes named the named provision and the named educational placement.

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How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. Ms 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 policy

EHC Plans

13. A child or young person with special educational needs (SEN) may have an 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. 
14. The EHC Plan is set out in sections which includes Section F: The special educational provision needed by the child or the young person.
15. 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).

Alternative provision

16. 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.
17. 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)
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. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

What happened

20. I have summarised below some key events leading to Ms X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
21. Y has SEN and his education is supported by an EHC Plan. Y’s EHC Plan named School A and provided for SALT sessions, a 1:1 teaching assistant, support during unstructured times, a differentiated curriculum, reviews and interventions by an OT.
22. In January 2023 Ms X appealed Y’s EHC Plan to the Tribunal as she did not believe School A was suitable to meet his needs.
23. Provision was put in place for Y at School A but he stopped attending in late September 2023 as Ms X said he was too anxious to attend. School A referred Y to a pupil referral unit, but this was not accepted due to a lack of medical advice around Y’s absence from school.
24. The Council met separately with Ms X and Y’s father, Mr Z, to discuss reintegrating him to School A, however they had differing views about Y’s ability to attend. Ms X provided a letter from Y’s GP stating it seemed sensible for him to remain off school until the outcome of the Tribunal appeal, however this gave no specific medical reason why Y could not attend. As a result, the Council worked on the basis it should put a gradual reintegration plan in place for Y to eventually return to School A.
25. Up to the end of 2023, the Council discussed several options with School A, Ms X and Mr Z about how to ensure Y received educational provision while he was off school. This included work being sent home, online learning, meeting in a community space away from school, visits to school and reduced timetable. While the Council and School A maintained Y could be reintegrated and the school environment remained suitable for him, Ms X only accepted work being sent home.
26. From the start of 2024, the Council held further meetings with School A and with Ms X and Mr Z separately. The Council referred Y to the mental health team, its family link team, a neurodiverse specialist for support for families, and mentoring services. It also completed an Early Help Assessment and Plan.
27. The Tribunal heard Ms X’s appeal in February 2024 but decided School A could meet Y’s needs and suggested a gradual transition plan to help him reintegrate. The Tribunal also order detailed direct SALT and increased OT hours. The Council has said there was a delay in sourcing professionals with availability.
28. The Council continued to work towards putting the support in place to reintegrate Y to School A, in line with the Tribunal order.
29. In July 2024 Ms X provided a letter from a doctor who explained Y was not able to attend School A because of his mental health and questioned whether it was a suitable placement to meet his needs. Based on this and the limited success at reintegrating Y, the Council agreed reintegration would not be possible and the agreed to commission alternative provision.
30. From the start of the academic year in September 2024, the Council offered alternative provision for Y, but Ms X and Mr Z disagreed on what elements of this would be appropriate for him.
31. The Council has provided records to show Y was offered his full entitlement of SALT sessions between September 2024 and February 2025 with six out of eight sessions being attended.
32. From the start of the academic year, Y was entitled to 22 hours of OT provision, however this was not in place for the start of the year as the Council was still struggling to source an OT with availability. He had also not received nine ours of OT provision he was entitled to from the previous year.
33. The Council has provided emails from October 2024 to show alternative provision providers arranged appointments with Ms X to assess if they were suitable for Y but she did not attend these.
34. In October 2024 the Council reviewed Y’s EHC Plan and began consulting with alternative educational settings.
35. The Council has provided further emails from January 2025 to show further offers of alternative provision were made to Ms X and Mr Z. However, they did not agree these would be suitable for Y.
36. Through February 2025, the Council continued to consult with various alternative provision settings. One setting said it did not have availability for Y, but in any case, Ms X had previously not turned up to arranged visits.
37. During this time Mr Z also refused parental consent for alternative provision providers to deliver services to Y.
38. In February 2025 the Council issued a final EHC Plan still naming School A but stating Y would move to an appropriate specialist school in September 2025, once one was identified.
39. Between March 2025 and July 2025, Y received the 22 hours of OT he was entitled to across the 2024/25 academic year.
40. By March 2025 the Council had agreed an alternative provision provider that both Ms X and Mr Z were in agreement with. This provision started delivering 18 hours of provision per week in April 2025.
41. The Council has said that since September 2025, Y has been receiving weekly OT sessions, above the level of provision set out in his EHC Plan which it feels makes up for the deficit of missed OT provision between March 2024 and July 2024.

Analysis

42. From the start point of my investigation, the provision set out in Y’s EHC Plan was secured and available for him at School A. I do not find fault with the steps the Council took to secure Y’s EHC Plan provision.
43. Following the Tribunal decision of February 2024, the existing provision remained in place and available to Y. I do not find the Council at fault here.
44. However, the Tribunal decision required additional SALT and OT for Y. There was delay in securing these additional therapies, which is fault and caused frustration and uncertainty for Ms X and Y which is injustice.
45. The Council has provided evidence to show that while its start was delayed, Y’s full SALT provision was delivered from September 2025. I do not find the Council at fault for failing to deliver the provision, however the delay remains fault, causing caused uncertainty for Ms X which is injustice.
46. The Council did not secure any OT provision for Y between March 2024 and July 2024. This is fault and while I accept the Council’s point that this missed provision has been made up since the start of the 2025/26 academic year, it still caused injustice to Ms X in the form of uncertainty. Similarly, while I accept the full entitlement for the 2024/25 academic year was delivered, this was only done after a delay which remains fault and caused uncertainty to Ms X which is injustice.
47. While the EHC Plan provision was secured for Y, he was not attending School A from September 2023 so he was not accessing this. The Council then had a duty to consider whether to enforce attendance or make alternative provision available to Y.
48. The Council consulted with School A, who maintained it could meet Y’s needs and initially tried to reintegrate him to the school. However, on receipt of a letter from Ms X’s GP stating it would be sensible for Y to remain off school until the outcome of the Tribunal, the Council agreed to put a package of alternative provision in place for him. As there was no specific medical reason given for Y not to return to School A, the Council proceeded on the basis that he would be gradually reintegrated. I do not find fault with the Council’s decision-making process here.
49. From that point up until the Tribunal decision of February 2024, the Council remained in contact with School A, Ms X and Mr Z to attempt to arrange suitable alternative provision for Y. The Council encountered difficulties as opinions pulled in different directions around what offered provisions were suitable for Y and should be accepted.
50. It is not my role to say what alternative provision would have been appropriate for Y across that time, but the Council made several offers based on consultation with everyone involved and I do not find fault with its decision-making process. I can understand Ms X’s frustration here, but where the Council followed the right process to offer alternative provision, I cannot find it at fault.
51. Once the Tribunal decided School A should be named on Y’s EHC Plan, it began working towards reintegrating him to school. I do not find the Council at fault here. However, Ms X then provided a doctor’s letter stating that School A may not be suitable for Y, and this was impacting his mental health. The Council then agreed, reintegration would not be possible. From that point, in August 2024, the Council was under a new duty to make alternative provision available to Y.
52. The Council has said there was a delay in arranging alternative provision for Y as Ms X and Mr Z would not agree on what was suitable for his needs. The Council has provided evidence it consulted with numerous alternative providers and agreed services with some of them, but these were not taken up by Ms X or Mr Z. I understand Ms X and Mr Z had different opinions on what was suitable for Y. But based on the information available to me, the Council acted correctly in consulting with various providers to secure alternative provision that it deemed to be suitable for Y. I cannot find the Council at fault where Ms X and Mr Z ultimately choose not to engage with these providers.
53. Again, it is not my role to say what alternative provision was right for Y. However, the Council appears to have followed the right process in considering this and making offers to Ms X and Mr Z, so I do not find it at fault here.
54. The Council has accepted it was at fault for a delay of around six months in responding to Ms X’s complaint and a failure to communicate clearly about this process. The Council has apologised to Ms X and offered to pay her £200 in recognition of the time and trouble she was put to in the complaints process. I find this suitable action to address the injustice here.

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Action

55. To remedy the injustice identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Ms X to apologise for the delay in securing additional therapies for Y between August 2024 and September 2025. 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 Ms X the £200 previously offered to recognise the injustice caused by the delay in complaint handling if this has not already been paid.
• Pay Ms X a further £500 to recognise the injustice caused by the delay in securing the SALT and OT provision Y was entitled to.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. 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