Summary: Ms X complains the Council failed to provide alternative educational provision for her son Y when he could not attend school. We have found no evidence of fault in the way the Council considered these matters. So, we have completed our investigation.

The complaint

1. Ms X complains the Council failed to provide alternative educational provision for her son Y, while he was temporarily excluded from school and then unable to return to school. Ms X says this resulted in lost educational provision for Y, affected his welfare and caused her distress.

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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. 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.
4. While the Local Government Act 1974 sets out what we can investigate it also explains what we may not consider.
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. 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

8. I have investigated Ms X’s concerns between November 2024 when she contacted the Council to April 2025 when the Council issued a final amended EHC Plan. This gave Ms X appeal rights to the SEND Tribunal which she exercised. Therefore, we cannot investigate Ms X’s complaints beyond then as she had appealed to the SEND Tribunal.

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How I considered this complaint

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

Legal background and statutory guidance

EHC Plan

11. 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.

Maintaining the EHC Plan

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 (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)
13. 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 demonstrate appropriate oversight in gathering information to fulfil their legal duty. At 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.

Reviewing EHC Plans

14. 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. The process is only complete when the council issues its decision to amend, maintain or discontinue 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)
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

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.

What happened in this case

17. What follows is a brief chronology of key events. It does not include all the information I reviewed during my investigation.
18. Y has an EHC Plan and attends a special mainstream secondary school I will call School D. The school provides provision for children with social, emotional and mental health difficulties. Ms X contacted the Council in November 2024 as Y had received some fixed term exclusions due to his behaviour. Ms X wanted to discuss the matter and Y’s support needs. The Council said it would ask School D to carry out an emergency annual review to discuss the issues raised.
19. The Council contacted School D about the emergency annual review. The head teacher said they had recently spoke to Ms X and arranged a reintegration meeting for Y. So would arrange a date for annual review at the meeting. Ms X then declined to meet with the head teacher saying she felt the school did not support Y and he would not be returning to the placement.
20. The head teacher was disappointed as they considered the conversation with Ms Y focused on finding a solution to reintegrating Y and the different strategies used by the school to try and support him. The school and Ms X had agreed to reintroduce Y to class on an adjusted timetable to start the next day. The head teacher urged Ms X to continue working with the school. But Ms X confirmed while she was not deregistering Y from the school he would not be returning as she did not consider the placement worked. Ms X asked the school to provide mentoring for Y until end of December 2024, and she would ask the Council to find another school placement. An EHC Plan case coordinator from the Council told Ms X they would support where they could by attending meetings with the school.
21. School D said it would explore mentoring but there was a waiting list as the school’s SENDCo was off on long term sick leave. The school said it would like to continue working with Ms X and Y, send work home and carry out a home visit.
22. The Council says School D did not say in November 2024 or later it was unable to make the special educational provision in Y’s EHC Plan if he was to attend. But it was exploring mentoring as requested by Ms X as her preference to support reintegration back to the school.
23. In December 2024 the Council ask School D to arrange the emergency annual review. Ms X told the Council Y was out of education and asked for an alternative provision placement at a provider I will call Company E. The Council told Ms X to speak to School D about the alternative provision setting. School D told Ms X it wanted to visit Y to check in with him and confirmed it would ask the Council if it would agree the alternative provision.
24. The Council held a meeting with School D to discuss several pupils including Y. The school reported it had taken Y longer than expected to transition into school with some unsafe behaviours and fixed term exclusions. The Council advised the school again to hold the early annual review and use Y’s funding flexibly to support him including use of alternative provision if needed. The Council says although School D expressed concerns it did not indicate it could not meet Y’s needs within the school.
25. Ms X told the Council Company E had a space for Y so wanted to know when he could start. The Council confirmed School D were contacting Company E about her parental preference and would discuss it at the annual review. Ms X said Y was not keen on the placement at Company E due to travel time to get there. So, the options were closer alternative provision, and she wanted Y to move schools. School D agreed to meet with the Council and work out a plan for Y.
26. In January 2025 Ms X confirmed she was trying to get Y back into school, but he wanted a new school. They had visited the Company E placement which Y enjoyed, and he could start straight away. Ms X and the Council discussed the procedure to formally request a change of placement.
27. The Council and School D held the annual review on 16 January 2025. It noted Y’s attendance was at 40.41% with alternative provision being explored to support Y’s re-engagement with education. Ms X named an independent special school she wished Y to attend as her parental preference. The Council confirmed it was waiting for annual review paperwork from School D with the costings for the Company E placement and would consider this at a Funding Panel in early March 2025.
28. The Council issued an amendment notice for Y’s EHC Plan on 5 February 2025. Ms X requested changes to the amendment notice.
29. The Funding Panel considered Y’s case in March 2025. It agreed to increase Y’s funding but considered the oversight of the alternative provision package or the school’s SENDCo time should be funded from the school’s ordinary funding for Y. If the school needed extra funding the panel asked for a provision map. This would show how the school used existing funding for the academic year and provide a reintegration plan for Y to transition back into the school as the setting named in his EHC Plan. The Panel could then consider the situation in more detail.
30. The Council told School D it was receiving funding for Y which was sufficient to put the alternative provision with Company E in place. The Council sought an update on how the alternative provision would be made and said it aimed to continue working with the school to ensure Y had access to suitable educational provision.
31. The Council issued a second revised amendment notice for the EHC Plan incorporating Ms X’s views and noted it was still waiting for the alternative provision information from School D. Ms X remained unhappy with the content of the amendment notice. And formally complained to the Council. Her concerns included the content of the EHC Plan and Y being out of school for several months with no alternative provision made. The Council confirmed it was continuing to work with Ms X and the school to support discussions to seek a positive resolution as Y remained on the school’s roll.
32. In early March 2025 School D sent the Council the revised costing for the alternative provision and information on how the existing funding had been spent. This included the measures taken by the school to support attendance and re-engagement although Ms X had wanted alternative provision since the emergency annual review. The Council told School D it considered the level of additional funding was enough to fund the requested alternative provision for the rest of the academic year. It expected the school to make the provision without delay. School D confirmed it would put the provision in place and contact Ms X.
33. The Council issued a third revised amendment notice for the EHC Plan in March 2025. Ms X confirmed she was happy with the amendment notice. The Council contacted School D to confirm the provision was in place as Ms X was concerned Y was missing provision.
34. School D confirmed it was making the arrangements and spoken to Ms X. The school provided the revised costings, explained how it had used the existing funding to provide Y with additional support and was arranging a quality assurance visit to Company E. The Council revised the costings for Company E provision and agreed the additional funding. The Council sent consultations to schools of Ms X’s choice as she wished to change Y’s educational placement.
35. At the end of March 2025 School D told the Council Company E could not provide the necessary assurances to provide alternative provision, so had withdrawn the place for Y. The Council asked School D what alternative provision it was now putting in place for Y as Company E was not suitable. The school said it had no plans to arrange other alternative provision as Ms X’s request was for Company E as she felt it most suitable for Y.
36. School D said however Y had a full-time placement and it was not restricting it. It had been Ms X’s request to explore alternative provision as she did not want to send Y back to the school. The school said it had no evidence to suggest it could not meet Y’s need, nor had it suggested Y’s difficulties met the criteria to be permanently excluded from the school. So, Y still had a place at the school. And it would start to consider whether to act under the attendance route for Y’s unauthorised absences if Ms X continued to choose not to send him to school.
37. The Council issued a final amended EHC Plan for Y on 4 April 2025. Ms X appealed to SEND Tribunal in May 2025 about the school, college or education provider Y should attend.
38. School D told Ms X about Company E and invited her to attend a meeting. Ms X declined and said Y would not be returning to the school. School D offered Ms X a tutoring provider for Y. The Council received an offer of a place for Y at a school I will call School F. The Council’s Funding Panel agreed the placement starting September 2025. It also confirmed additional funding for School D to use the tutoring provider for 10 weeks.
39. The Council issued a revised amended final EHC Plan in August 2025 naming School F as Y’s placement. The SEND Tribunal issued a consent order as the Council and Ms X had agreed on Y’s placement.
40. The Council says Ms X has not provided any supporting evidence to it or School D to show Y was unable to attend the school. It only had Ms X’s assertion she would not send Y back to School D. Neither the school nor Council had determined Y’s needs could not be met at the setting. The Council and School D attempted to work collaboratively with Ms X to support Y’s reintegration back to school through her preferred alternative provision provider. But this was not possible as Company E did not satisfy the school’s quality assurance checks. School D confirmed again it was still able to make provision for Y’s special educational needs in the school setting and the placement remained available to him should he attend. School D had offered reintegration meetings with Ms X which she refused to engage with. The Council said it expects parents ensure their child attends school and be able to engage with education, unless there is a supported good reason for them not being able to do so.

My assessment

41. The evidence provided by the Council shows that it and School D had clear plans in place to reintegrate and support Y back into school. They included Ms X in the discussions about alternative provision. The Council and School D showed flexibility in exploring alternative provision to support that aim. I am satisfied the Council’s and school’s willingness to consider Ms X’s alternative provision preference was to support eventual reintegration rather than accepting a s19 or s42 duty as shown by the annual review paperwork in January 2025. There is therefore no evidence of fault by the Council. This is because it responded to Ms X’s concerns about Y not being in school and arranged the emergency annual review as we would expect it to do in the light of concerns raised about Y’s attendance. The Council also responded to Ms X’s request for a change of placement for Y, reviewed the EHC Plan and issued a final amended EHC Plan in April 2025.
42. Although there is limited evidence of consideration by the Council as to whether the school could meet Y’s needs in November 2024 following Ms X’s contact and the annual review in January 2025 it was clear by March 2025 the school confirmed it could meet the need. Ms X had not provided any evidence to suggest otherwise or to show why Y was unable to attend school. Therefore, I consider it reasonable to assume, on the balance of probabilities, the same would have applied and the school confirmed it met need if the Council had sought this assurance in November 2024 and January 2025.
43. I recognise it will have been disappointing for Ms X the alternative provision being sought with Company E did not go ahead and Y was not attending school. However, the evidence provided clearly shows the school made offers of home visits to see Y and provide work for him which we would expect the school to do. There is however no evidence of Ms X responding to these offers or engaging with the school. So, while it is unfortunate if Y was not accessing any educational provision, I cannot say it was due to any fault by the Council.

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Decision

44. I find no fault by the Council.

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Investigator's decision on behalf of the Ombudsman