Summary: Ms X complained the Council failed to provide her son with alternative provision when he stopped attending school in March 2024. She also says the Council delayed providing her son with an education after it issued his Education, Health and Care Plan in October 2024 and its complaints handling was inadequate. We find the Council was at fault for failing to arrange a suitable full-time education for Ms X’s son and for failing to record its decision making. This meant Ms X’s son received limited education. It also caused Ms X distress and upset, and it had a financial impact. The Council has agreed to apologise to Ms X and her son, make a financial payment and implement a service improvement.

The complaint

1. Ms X complained the Council failed to provide her son (Y) with alternative provision when he stopped attending school in March 2024. She also says the Council delayed providing Y with an education after it issued his Education, Health and Care (EHC) Plan in October 2024. Finally, she says the Council’s complaints handling was inadequate.
2. Ms X says Y’s education has been significantly disrupted. The family have had to pay privately for tutors which had had a significant financial impact.
3. Ms X is represented by her advocate (Ms Z) in bringing the complaint to the Ombudsman.

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The Ombudsman’s role and powers

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. 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)
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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(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).
9. 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

10. I have investigated Ms X’s complaint about Y’s alternative provision from May 2024 (when it became aware Y was out of school) to 18 October 2024 (when it issued Y’s EHC Plan).
11. 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).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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
12. Ms X appealed to the Tribunal about the placement in Y’s EHC Plan. Her complaint about the education Y received after 18 October 2024 is linked to her appeal to the Tribunal. Therefore, I have not investigated what education Y received after 18 October 2024.

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How I considered this complaint

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

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What I found

Special educational needs

15. 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. 

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. We refer to this as section 19 or alternative provision.
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
18. The education provided by the council must be full-time unless the council determines that 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)
19. 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’)

What happened

20. This chronology provides an overview of key events and does not detail everything that happened.
21. Y has special educational needs. His school (School A) made a referral to the Council’s medical needs team (MNT) in mid-May 2024. The MNT provides short term provision for children who cannot attend school. School A said Y had not attended since March 2024 because of his medical needs.
22. An officer from the MNT emailed Ms X in mid-May. He said the team could provide Y with online support in Maths, English, Science and Geography. He suggested an online planning meeting in mid-June.
23. Ms X wrote to the Council in early June and asked it to complete an EHC needs assessment for Y. This is an assessment of a child or young person’s EHC needs.
24. Y started receiving some online 1:1 lessons from the MNT from late-June.
25. The Council issued Y’s final EHC Plan on 18 October. It named School A as the placement to deliver the provision in the Plan.
26. Ms X appealed to the Tribunal about the placement and the special educational provision in Y’s EHC Plan. She said Education, Otherwise Than At School, rather than School A, would meet Y’s needs.
27. Ms Z contacted a senior officer at the Council in January 2025. She said Y had not attended School A since March 2024, and the MNT had closed his case. Ms X was funding private tuition (nine hours per week) for Y. She asked for more education for Y.
28. Ms Z emailed the Council at the end of January and asked it to escalate the case to stage two. The Council agreed to investigate the concerns as a formal complaint.
29. Ms Z provided further information to the Council about the complaint in February. She said the Council failed to provide Y with interim education and this had negatively affected him.
30. The Council responded to the complaint at the end of February. It said School A was responsible for providing Y with an education before he had an EHC Plan. It also said the MNT provided Y with some support. Finally, it said it did not always respond to communication within its target of five working days. It apologised for this.

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Analysis

31. The Council’s MNT received a referral from School A in mid-May 2024. The MNT picked up the referral within two days and accepted it had a section 19 duty to provide Y with alternative provision. This started in late June 2024.
32. There is no statutory timescale for when alternative provision should start. However, it should start as soon as possible. A suitable timescale for when Y should have started receiving alternative provision would have been at the beginning of June 2024. This did not happen. Therefore, the Council was at fault for its delay in providing Y with alternative provision.
33. The Council said in its complaints response School A was responsible for providing Y with an education before he had an EHC Plan. This is incorrect. The law is clear about councils’ duties to arrange suitable education for children who are out of school because of exclusion, illness or otherwise, if they would not receive suitable education without such arrangements. Y had stopped attending School A in March 2024 and he was not receiving an education.
34. Section 19 of the Education Act 1996 says the education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests.
35. The MNT provided Y with around two hours of education per week. This was limited to mainly Geography, with occasional support in English. This is significantly short of a full-time education. The Council has not evidenced it assessed Y, or how it decided such limited education was appropriate for Y’s age, ability, aptitude and special educational needs. This is fault.
36. Y engaged with the education the MNT provided. Ms X also privately organised and funded nine hours per week of education for Y which he engaged with. Therefore, I consider it is more likely than not Y would have coped with more education if the Council had acted without fault. The Council’s fault has caused Y a significant injustice as he did not receive a suitable or full-time education which he is legally entitled to. While Ms X provided Y with some education, it was still not equivalent to a full-time education.
37. The Council’s fault has also caused Ms X distress and upset. She took ownership of organising Y’s education which also had a financial impact.
38. Ms Z says the Council’s complaints response was a desktop exercise. She says the officer who investigated the complaint did not interview School A or other officers. She also says the officer did not secure any evidence and stated “it is understood” to various points of the complaint.
39. The Council’s complaints response is detailed and addresses all parts of the complaint. The response states “To investigate your concerns, I have reviewed our records and files to understand the situation”. Therefore, it is clear the officer dealing with the complaint reviewed the file and looked at the evidence. It is entirely at the Council’s discretion on how it decides to investigate the complaint, and it was under no obligation to contact School A or other officers if it did not consider that was necessary. I do not find fault.

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Action

40. By 20 February 2026 the Council has agreed to:

• Apologise to Ms X and Y for the injustice caused by fault in this statement.
• Reimburse Ms X the money she spent educating Y from June 2024 to 18 October 2024 (on receipt of copy invoices from Ms X).
• Pay Ms X £1,200 to reflect the lack of education for Y from June 2024 to 18 October 2024. We recommend Ms X uses this for Y’s educational benefit.

41. By 20 March 2026 the Council has agreed to:

• Review how it makes decisions regarding alternative provision to ensure it offers full-time education where appropriate or provides clear and documented reasons when it decides a part-time table is a suitable education for a child. This record should include an assessment of how much the child can manage when they are too unwell to access a full-time education.

42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. There was fault by the Council, which caused Ms X and Y an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman