Summary: Ms X complained the Council delayed issuing an Education Health and Care Plan for her child and it failed to provide alternative education provision when they could not attend school. We found the Council at fault for failing to provide education and support for Ms X’s child. This fault caused Ms X’s child to miss out on educational provision and caused distress for Ms X. The Council has agreed to apologise and make a payment to repay Ms X’s reasonable costs and to recognise the injustice caused to her and her child.

The complaint

1. Ms X complained the Council refused to provide alternative provision for her child, Y, when they could not attend school due to their needs.
2. Ms X also complained the Council delayed issuing an EHC Plan, which delayed Y starting an education otherwise than at school (EOTAS) package. She said that because of the Council’s actions, she had to pay for Y’s tuition and Y did not get all their education which negatively impacted their development and wellbeing.
3. Ms X said there was also fault in the Council’s decision-making around a personal budget and EOTAS. She said this caused delays and frustration.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
8. 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)
9. 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.
10. 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)
11. 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

Tribunal appeals

12. The courts have established that 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.
13. This means that 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 educational placement in the EHC Plan, we cannot investigate a lack of alternative educational provision.
14. The period we cannot investigate starts from the date the appealable decision is made and given to the parent. If the parent goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
15. Ms X appealed Y’s EHC Plan because she said they could not attend any mainstream school and needed EOTAS. Therefore, Y’s non-attendance at their mainstream school is not separable from the issues in Ms X’s appeal.
16. In Y’s case, this means we cannot investigate issues in Ms X’s complaint which are linked to the appeal from October 2024 until February 2025. For this period, we cannot look at:

• the Council’s failure to provide alternative education provision or special educational provision;
• the Council’s decision making around EOTAS; and
• how the Council considered Ms X’s request for a personal budget and direct payments,

as these are linked to the issues in the appeal.

Proportionality

17. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
18. On the broader point, we cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.

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How I considered this complaint

19. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
20. Ms X and the Council had 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

Alternative education provision

21. 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.
22. This applies to all children of compulsory school age living in the council’s area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’, January 2013)
23. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Supporting children out of school (October 2025)

Education, Health and Care Plans

24. 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.
25. 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).

Education Otherwise Than At School

26. If school or college is not appropriate for the child or young person with an EHC Plan (for either all or part of their education), the council can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school, college or early years setting. This is known as ‘education otherwise than at school’ (EOTAS). (Children and Families Act 2014, section 61)

The First-tier Tribunal (Special Educational Needs and Disability)

27. Parents and young people can appeal the contents of an EHC Plan to the Tribunal. Where a council concedes an appeal about the way a child’s special educational provision is described in the EHC Plan it must amend the Plan within five weeks of it telling the Tribunal it is conceding the appeal. (Regulation 44 of the Special Educational Needs and Disability Regulations 2014)
28. Case law has established councils have a legal duty to secure the special educational provision in an EHC Plan by the time the amended final EHC Plan is issued following an appeal to the Tribunal. (BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin))

What happened

29. In May 2024 Ms X asked the Council for an EHC needs assessment for Y. The Council agreed to this.
30. In September 2024 Y was on the roll of a mainstream school, but they could not attend the school because of their needs.
31. Ms X then asked the Council to provide alternative education provision for Y because they could not attend school.
32. In October 2024 the Council sent Y’s final EHC Plan to Ms X. Y’s EHC Plan said they would attend a mainstream school, but it did not name a specific school. Y stayed on the roll of their school even though it was not named in their EHC Plan.
33. Ms X appealed Y’s EHC Plan to the Tribunal. She said Y could not attend any mainstream school and needed EOTAS.
34. Ms X then asked the Council to agree a personal budget for Y. She explained she wanted to ask for direct payments so she could arrange Y’s provision herself.
35. In December 2024 Ms X started paying for tuition for Y.
36. In February 2025 the Council told the Tribunal it agreed to provide EOTAS and would concede the appeal.
37. In March 2025 the Council sent Y’s amended final EHC Plan to Ms X.
38. In May 2025 the Council started providing Y’s EOTAS package.

Analysis

Alternative education provision

39. As explained earlier, I cannot consider the Council’s actions between October 2024 and February 2025 because the law says we cannot investigate this.
40. Therefore, I have only considered the Council’s actions between September 2024 and October 2024, and after mid-February 2025.
41. There was no fault by the Council in September 2024. No one told it Y was not attending school until late-September 2024, so it could not have acted earlier.
42. Between February 2025 and March 2025, the Council failed to provide any education for Y while it amended their EHC Plan after the Tribunal appeal. This was fault. Although the Council agreed it would provide Y with EOTAS, it still had a duty to provide them with alternative education provision until it sent an amended final EHC Plan and started providing Y’s EOTAS package.
43. This fault caused injustice to Ms X because she had to pay for tuition for Y as the Council did not offer them any alternative education provision.

Delays in sending an EHC Plan and providing EOTAS

44. The Council sent Y’s amended final EHC Plan in March 2025. It should have sent it within five weeks of it conceding the appeal, but was 10 days late. This was fault, but it was not significant fault and doesn’t warrant further investigation.
45. The law says the deadline for councils to send the amended EHC Plan and ensure provision is in place is five weeks after a council tells the Tribunal it is conceding an appeal.
46. Therefore, the Council should have provided EOTAS from mid-March 2025 onwards. The Council did not start providing Y’s EOTAS package until May 2025. This was fault.
47. This fault caused injustice to Ms X because she had to pay for tuition for Y to make sure they still received educational provision.

Remedy

48. Our guidance on remedies explains that where we find a council’s fault caused a child to miss out on a suitable education, we may consider reimbursing the parent’s costs for education materials or tuition, if we decide those costs were reasonable and as a result of the council’s fault.
49. In Y’s case, Ms X has sent us evidence she paid for tuition for Y. These costs were likely reasonable because Y would not have received any education or support otherwise.
50. Y’s EHC Plan finalised in March 2025 stated they needed 25 hours a week of tuition, which means they likely needed about the same amount in February 2025.
51. However, Ms X paid for 6.5 hours of daily tuition for Y. This was more than Y needed.
52. Therefore, the Council will reimburse Ms X’s tuition costs, but only up to 25 hours per week of tuition.

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Agreed action

53. Within one month of our decision, the Council will:
1. apologise to Ms X and Y for the injustice caused to them by the failings identified during this investigation. This apology should follow our guidance for making an effective apology; and,
2. reimburse Ms X’s tuition costs between the date the Council conceded the Tribunal appeal, until the date Y started receiving provision through their Council-funded EOTAS package (subject to Ms X providing the Council receipts of her tuition costs).
54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. 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