Summary: There was fault by the Council when it failed to make alternative educational provision for a child who could not attend school. The Council also took too long to issue a final EHC Plan. The Council’s failings meant that the child was without a suitable education, causing distress to the child and her mother. The Council has already made improvements to its service. It has agreed to apologise to both the mother and the child, and make a symbolic payment in recognition of the education missed.

The complaint

1. Miss X complains that the Council:
• Failed to make alternative educational provision when her child, K, could not attend school;
• Failed to take safeguarding action when K was self-harming in school;
• Failed to take action against the school when it wrongly recorded K’s attendance at school and threatened enforcement action with regards to her attendance; and
• Took too long to issue an Education Health and Care (EHC) Plan.
2. Miss X says that the Council’s shortcomings meant that K missed education. It also caused her and her child distress and uncertainty.

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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 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)
4. 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)

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What I have and have not investigated

Educational provision after January 2025

5. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. 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 special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
7. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
8. Miss X has appealed to the Tribunal about the Council’s decision to name her child’s current school in the EHC Plan and not to allow Education otherwise than in a school (EOTAS). K is not able to go to school because she and Miss X believe it cannot meet her needs. As the reason K is not going to school is linked to a disagreement about the school named on her Plan, I cannot investigate the lack of education provided after the Council issued the final Plan (31 January 2025).

Safeguarding actions

9. 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)
10. Miss X raised safeguarding concerns about her daughter with the school. If the school referred these to the Council it would have a duty to consider these. I cannot look at the school’s actions here, only the actions of the Council. However, Miss X raised these in 2023 and her daughter stopped going to the school in January 2024. Miss X complained to us in March 2025 and so more than 12 months had passed since she first suspected her safeguarding concerns may not have been acted on. I appreciate that Miss X has been dealing with difficult situations with her daughter. But there is no good reason why she could not have complained about her safeguarding concerns sooner. For this reason, I have not investigated whether the Council should have taken safeguarding action based on the concerns she raised with the school.

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. 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 found

The law and guidance

The EHC Plan process

14. 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. 
15. 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);  

Alternative educational 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.

What happened

17. This is a summary of the main events relevant to my investigation. It is not an account of everything that happened.
18. Miss X’s child, K, has poor mental health as well as a developmental disability. She had been going to school and was doing well, but her disabilities meant that she began to struggle with various aspects of school and became increasingly distressed. In January 2024, K stopped going to school.
19. The school contacted Miss X to discuss alternative provision and in February Miss X sent the school details of K’s recent autism diagnosis and a Child and Adolescent Mental Health assessment. Miss X asked the school for an EHC needs assessment.
20. At the end of March, the school offered K some online learning. However, she was not able to engage with this.
21. On 16 April, the Council told Miss X that it would consider her request for an EHC needs assessment. On 14 May, the Council agreed to complete the assessment. It said it would decide whether to proceed with an EHC Plan by 25 July.
22. In the meantime, the Council’s children’s services provided early help support. This is a low-level kind of support to stop problems getting worse. The Council held several meetings with the various professionals working with K.
23. In July, K tried to return to school in a special learning hub, but she became distressed and had to leave after two visits. The school suggested that K try again in September. Miss X told the Council this and that K had not had access to much education since January 2024. The Council said that it was progressing with the EHC Needs assessment and referred Miss X to a specialist service to support her in the EHC Plan process.
24. In September, K tried school again in a special learning hub. Again, she could not cope and Miss X had to collect her. The school met with Miss X and said it would meet her again, but it did not. Miss X told the Council this and that the school would not offer K any more alternative educational provision.
25. The Council told Miss X that it would be proceeding with an EHC Plan on 13 September and it issued the draft EHC Plan on 23 September. This was nearly nine weeks later than the legal time frame.
26. Miss X told the Council that the school could not meet K’s needs and had suggested she looked elsewhere. She sent the Council a letter from the Child and Adolescent Mental Health Service saying K could not attend that school. The school told the Council K’s needs would be best met elsewhere. The Council met with Miss X to discuss the draft EHC Plan. Miss X and the Council discussed that K might need education other than at school (EOTAS).
27. Despite this, the school tried again with online learning in December. However, by this time K had been out of school for almost a year and felt she was very far behind others in the online class. Again, K could not cope and so the provision stopped.
28. In the meantime, the school had authorised K’s absence from school. However, the school later changed its position so that K’s absence was unauthorised. The school wrote to Miss X to say that she could be prosecuted if K did not start going to school. Miss X complained about this to the Council. In November, the Council asked the school to stop threatening prosecution. It explained to Miss X that it could not tell the school whether to authorise absences because it is an academy run school.
29. At the end of January 2025, the Council refused to agree EOTAS for K. It issued the final EHC Plan naming the current school for K to attend. The Council had issued the final Plan 23 weeks later than the legal deadline. Miss X appealed against the contents of the Plan and the school named.
30. Miss X found an alternative educational provider for creative work and another for tutoring. The Council agreed to fund both and K started at one in June 2025. Once settled with that provider, K was able to add the tutoring in September.
31. Miss X complained to the Council in November 2024 and February 2025. Overall, the Council’s position is:
• It cannot tell the school whether to authorise the absences, but it did tell it to stop sending notices and letters about prosecution.
• The school worked with the Council to put alternative provision in place. The Council has increased its staff for alternative provision and improved its practices.
• It acknowledged that it did not make alternative educational provision between April and October 2024 and this caused distress to Miss X and B. The Council offered to compensate Miss X.
32. Miss X asked the Council why it had only considered April to October 2024 when K had been out of school since January 2024, and still had no education that she could access. The Council did not offer any further explanation. Miss X complained to the Ombudsman.

Was there fault by the Council causing an injustice to Miss X and K?

Failed to make alternative educational provision when her child, K, could not attend school

33. It is for the Council to decide whether it has a duty to make an alternative educational provision for K, and if so, what would be a suitable alternative education.
34. The Council has not shown that it properly considered its duty or explained this to Miss X and this was fault. The Council could decide that a suitable education is available at the school and if K had the right support she could access this. However, in this case, efforts to reintegrate K to school did not work and so I would have expected the Council to review its approach and the provision it was making. The Council agreed that there should be alternative provision but took too long to properly engage with what that should be.
35. The Council has accepted that it did not make provision for K between April and October 2024. It did not explain to Miss X why it only accepted a duty from April, when K was out of school from January, nor why it did not extend its duty past October.
36. My finding is that the Council failed to make provision between April 2024 and the end of January 2025. My remit ends at the end of January because this is when Miss X first had a right to appeal the EHC Plan.
37. I appreciate that K was out of school from January 2024. However, it is clear that the school was trying to reintegrate K by reduced timetables and attending the school learning hub and so we may not expect the Council to accept that it had a duty to provide an alternative at that stage. By March 2024, the Council had more information about how the school’s approach was not working, and also more information from the mental health service and a specialist clinic. By April, the Council had also agreed to do an EHC needs assessment.
38. There was no real provision throughout the period until January 2025 when my remit ends.

Took too long to issue an Education Health and Care (EHC) Plan

39. The Council took too long to issue the EHC Plan. If Miss X requested the Plan at the beginning of April, the Council should have issued the final Plan by 22 August. It issued the final Plan on 31 January 2025. This was 23 weeks later than the law allows. This was fault by the Council.

Failed to take action against the school when it wrongly recorded K’s attendance and threatened Miss X with prosecution

40. There was no fault by the Council. It cannot tell the academy run school how to record the absence. The Council told the school not to threaten prosecution when Miss X complained to it about this.

Injustice

41. The Council’s failings meant that K has missed out on suitable educational provision between April 2024 and January 2025. The EHC Plan shows that K is particularly vulnerable and has special educational needs. K would have been in Years 9 and 10 during the period I have investigated, and these are important years in terms of K’s secondary school exams, such as her GCSE’s. K was at times receiving some provision but it was not accessible to her.
42. Miss X has described how K’s mental health deteriorated severely during this time. Miss X has also described the distress the Council’s shortcomings caused her.

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Action

43. I have recommended a remedy in line with our guidance on remedies. As part of earlier investigations into complaints by other parents, the Council has agreed to complete service improvements to better deal with its duties around alternative educational provision and EHC Plans. We monitor the Council’s compliance with our remedies. I have made no additional recommendations to improve its service.
44. The Council has agreed that within one month of the date of this decision it will:
• Apologise to Miss X and to K separately for the impact on them. 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 to Miss X a symbolic payment in recognition of the impact on Miss X and on K of the missed educational provision. The Council should pay at total of £4,500. This represents £1,800 a term which is in line with our guidance on remedies.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council has agreed to take the above action to remedy the injustice to Miss X and her child.

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Investigator's decision on behalf of the Ombudsman