Summary: Ms Z complained on behalf of Mr and Ms X about how the Council handled their child’s, Y, Education, Health and Care Plan, its failure to provide Y with full-time alternative provision and with the full provision set out in her Plan. There was fault by the Council which caused injustice to Mr and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Ms Z is a representative for Y and her parents Mr and Ms X.
2. Ms Z complained the Council:
1. failed to provide Y with alternative provision when she was unable to attend school on a full-time basis
2. failed to provide Y with the full provision set out in Section F of her Education, Health and Care Plan
3. delayed carrying out annual review of Y’s EHC Plan and issuing her final EHC Plan.
3. Ms Z also complained about the content of Y’s EHC Plan.
4. Ms Z said as a result, Y lost out on full-time education and specialist support, and it affected her progress, emotional health and well-being. Ms Z also said the matter caused significant distress to Mr and Ms X and the time and trouble submitting an appeal to the Special Educational Needs and Disability Tribunal.

Back to top

The Ombudsman’s role and powers

5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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.
9. 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.
10. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
11. 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)
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

13. Ms Z made a complaint to the Ombudsman in May 2025, so this investigation should start from May 2024 (12 months before she made her complaint). But I have exercised discretion to investigate matters from when Y was placed on a part-time timetable to when Ms Z made a complaint to the Ombudsman.
14. To make a meaningful investigation, I have therefore investigated matters from February 2024 to May 2025.
15. I have not investigated Ms Z’s complaint point at paragraph 3 about the content of Y’s Education, Health and Care (EHC) Plan. These are matters for the Tribunal and are out of the Ombudsman’s jurisdiction. Mr and Mrs X exercised their right of appeal to the Tribunal in relation to the contents of Y’s Plan, including ‘Section I’ after the Council issued Y’s final EHC Plan.

Back to top

How I considered this complaint

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

Back to top

What I found

Education, Health and Care Plan

18. 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.
19. 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 this duty to arrange provision is owed personally to the child and is non delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
20. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. There may also be situations when an early annual review is required. The review process includes a review meeting, and the subsequent decision, which have appeal rights. The process is only complete when the council issues a decision about the review.
21. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
22. There may also be situations when an emergency review or a re-assessment becomes appropriate particularly when a child or young person’s needs change significantly. The council can refuse a request for a reassessment if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
23. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal. (9.190 SEND Code)
24. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.
25. 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). The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.

Alternative Provision

26. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
27. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
28. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
29. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
30. If a child has an EHC Plan, the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
31. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.
32. Part-time timetables - The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
33. Additionally Resourced Provision (ARP) is a specialised, funded unit within a mainstream school designed for pupils with specific Special Educational Needs and Disabilities, usually requiring an EHC Plan. ARPs provide tailored, intensive support while allowing pupils to integrate into mainstream classes.

Background

34. Mr and Ms X’s child, Y, has some health conditions and special educational needs (SEN).
35. Y has an Education, Health and Care (EHC) Plan and she attended, an Additionally Resourced Provision (ARP) within School 1.
36. Some of the provision in Section F of Y’s EHC Plan which was issued in 2023 included:
1. to access an ARP provision situated within a whole school setting and with individualised small group provision catered towards supporting the needs of young people with social interactional, and social and emotional needs.
2. flexibly organised curriculum and a nurturing approach with regular integrated activities which support emotional regulation, and support from adults who can respond to her emotional needs.
3. highly predictable learning environment with use of a visual timetable/visual cues that correspond to the activities that are needed to be carried out.
4. weekly pre-teach and consolidation sessions 1:1 or in small groups.
5. additional provision to meet Y’s motor coordination and to be supported in an environment that will manage her sensory regulation throughout the day.

Key events

37. In February 2024, Y was unable to attend School 1 and receive education on a full-time basis due to her health condition.
38. School 1 decided to place Y on a part-time timetable / re-integration plan to enable her to continue to attend and to increase the time she spent in school. The re-integration plan was agreed with Mr and Mrs X, and the Council was aware of the arrangements.
39. Y’s part-time timetable varied from a minimum of 5 hours to a maximum of 25 hours per week and it was put in place from mid-February 2024 to early March 2025. Y’s part-time timetable was reviewed every 2 weeks by School 1 and Mrs X, and the Council kept an oversight of the arrangements. This was to ensure steps to increase Y’s time in school was agreed and that the arrangements remained appropriate for Y. The review paperwork showed there were instances when Y showed signs of fatigue by mid-day and became extremely dysregulated. There were also days she struggled with her health condition and did not attend. School 1 sent work home to Y when she was unable to attend the ARP.
40. On 25 April, an annual review of Y’s EHC Plan was held.
41. The Council consulted with its Educational Psychology (EP) service in early May as it became concerned whether the ARP was meeting Y’s needs. It was agreed that Y’s re-integration plan should continue, an EP referral should be made, and relevant information should be gathered for Y’s next EHC Plan annual review which was scheduled for October.
42. On 16 May, Mr and Mrs X asked the Council to reassess Y because they believed School 1’s ARP and Y’s EHC Plan no longer reflected and met her needs.
43. The Council liaised with School 1 and asked if it had explored alternative provision for Y. School 1 said it had not explored alternative provision for Y because she required a long-term and not a short-term provision.
44. On 28 May, the Council’s multi-agency panel considered Mr and Mrs X’s reassessment request. The panel decided a reassessment of Y’s needs was not required because there was no significant change in her needs and that School 1 had a good understanding of Y’s needs. The Council notified Mr and Mrs X of the panel’s refusal decision.
45. In mid-July, during one of Y’s part-time timetable reviews, School 1 confirmed the ARP could no longer meet Y’s needs.
46. On 6 August, the Council issued its decision letter to amend Y’s EHC Plan.
47. In September, Y continued to struggle with the part-time timetable. Mrs X asked the Council to include alternative provision (with high emotional support) for two days a week as part of Y’s part-time timetable to support her wellbeing.
48. On 1 October, the Council issued Y’s final EHC Plan following the annual review held on 25 April.
49. On 8 October, an early transition review of Y’s EHC Plan was held. The review paperwork stated it was found that there had been significant changes in Y’s needs and that a different educational placement (the parental preference / School 2) should be considered as part of the transition process.
50. On 6 November, the Council issued its decision letter to amend Y’s EHC Plan.
51. In one of Y’s part-time timetable reviews in November, it was recorded that Y had made progress with her access and engagement with her re-integration plan at the ARP.
52. In mid-December, the panel considered whether the Council should commission alternative provision for Y. The panel decided a commissioned alternative provision would not be appropriate because Y was making good progress with the reduced timetable at the time.
53. The Council notified Y’s parents of the alternative provision refusal outcome. The Council said it did not agree its duty under Section 19 of the Education Act 1996 was engaged because School 1 was available to Y. It also said Y had been put on a part-time timetable to enable her access education and to increase the time she spent in school. The Council said School 1 remained an appropriate setting for the rest of the academic year and it would then consult with other settings (including School 2) through the annual review process for a September 2025 start as part of Y’s transition to secondary school.
54. Mr and Ms X made a complaint to the Council about the suitability of School 1 for Y, the Council’s failure to provide Y with suitable education since she had been placed on part-time timetable and its failure to provide Y with the full provision set out in Section F of her EHC Plan.
55. On 24 December, the Council issued Y’s final EHC Plan. School 1 remained the named educational placement for Y until July 2025.
56. In early 2025, Mr and Ms X submitted an appeal to the Tribunal in relation to the contents of Y’s final EHC Plan (sections B, F and I).
57. In February, the Council conceded the appeal and reissued Y’s final EHC Plan with School 2 (a specialist school) as the named educational placement for an immediate start.
58. Y stopped attending School 1 in early March and she started attending School 2.
59. School 1 provided the Council with Y’s progress reports in relation to section F provision it had provided to Y. The reports showed Y had achieved some of the outcomes set out in her EHC Plan and was making progress towards other outcomes.
60. In its responses to Mr and Mrs X’s complaint, the Council:

• accepted and apologised for its delays with completing the 25 April 2024 annual review process.
• said the ability to access education on increasing amounts was available to Y through the reintegration plan/part-time timetable which was put in place for Y in February 2024. The Council clarified that Y was unable to access full-time education because of her health condition and not because of educational needs. The Council maintained its duty to provide Y with alternative provision was therefore not engaged.
• said the reduced timetable was reviewed regularly and through the annual review process. The Council said evidence showed Y’s progression and positive outcomes towards the end of 2024 and that although Y was unable to attend School 1’s ARP on a full-time basis, it found School 1 remained the appropriate placement for the rest of the 2024/2025 academic year.

Analysis

Full-time Alternative Provision

61. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. School 1 considered the reasons Y was not attending and it promptly put in place a reintegration plan / part-time timetable for Y to enable her to continue to access school. Also, School 1 worked with Y’s parents to draw up the reintegration plan and kept Y’s reduced timetable under regular review with a view of increasing it when she was able to. The Council was aware and kept an oversight of the arrangements. These were not faults.
62. While there is no specific duration in which councils should have a reduced timetable for a child, a part-time timetable must not be treated as a long-term solution.
63. School 1 informed the Council in mid-July 2024 that it could no longer meet Y’s needs. Y was unable to always attend/access School 1 on some days during the period the part-time timetable was in place. The Council issued Y’s final EHC Plan on 1 October 2024 and continued to name School 1 as the educational placement. This was an appealable decision. But I am satisfied it was reasonable for Mr and Mrs X not to appeal at this stage. There was a transition review of Y’s Plan within several days of the EHC Plan being issued. It was reasonable for Mr and Mrs X to wait for the completion of the review process to see if that addressed their concerns.
64. The arrangements School 1 had put in place continued and the panel found Y was making good progress and it refused the request for alternative provision on that basis. The Council kept the arrangements under review and was not at fault.

Providing Y with Section F of her EHC Plan

65. Y was placed on a part-time timetable due to her health condition. I find on balance that the Council provided Y with the provision set out in section F of her EHC Plan from February 2024 to March 2025 when she stopped attending School 1. Evidence detailed in paragraph 59 confirms this. The Council was not at fault.

EHC Plan Annual Review Process

Annual Review held on 25 April 2024

66. The Council should have issued its decision letter on 23 May 2024 (four weeks after the review meeting). The Council did not issue its decision to amend Y’s EHC Plan until 6 August 2024. This was a delay of approximately 11 weeks.
67. The Council should have issued Y’s final Plan on 18 July 2024 (12 weeks after the annual review). The Council did not issue Y’s final EHC Plan until 1 October 2024. This was a delay of approximately 11 weeks. This is fault. It caused Mr and Mrs X distress, and it delayed their right of appeal to the Tribunal.
68. The Council already accepted and apologised to Mr and Mrs X for its delays with completing Y’s 25 April 2025 annual review process. But I find the Council’s apology is not sufficient or in line with our guidance on remedies. This will be addressed under the ‘action’ section below.

Mrs X’s reassessment request dated 16 May 2024

69. The Council issued its decision letter on 28 May 2024 which was within 15 days of Mrs X’s request for Council to reassess Y’s needs. This was not fault.
70. The Council’s reason for its refusal to reassess Y was because the multi-agency panel found there was no significant change in Y’s needs at the time and that School 1 had a good understanding of Y’s needs. This was not fault as it is a decision the Council is entitled to make. I find it was reasonable for Mr and Mrs X to have exercised their right of appeal to the Tribunal if they remained dissatisfied with the Council’s refusal decision.

Early Annual Review held on 8 October 2024

71. The Council issued its decision letter to amend Y’s EHC Plan on 6 November 2024. This was a delay of one day and I find this caused no injustice to Y and/or Mr and Mrs X. The Council then issued Y’s final EHC Plan on 24 December 2024 within the statutory timescale. This was not fault.

Back to top

Action

72. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mr and Mrs X and make them a symbolic payment of £250 to acknowledge the delayed appeal rights caused to them by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology

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

Back to top

Decision

74. I find fault by the Council causing injustice to Mr and Mrs X. The Council will take action to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman