Summary: Mrs X complained the Council failed to provide suitable alternative provision to her granddaughter when she could not attend school. We cannot investigate the period from January 2025 when the Council decided not to reassess the Education, Health and Care Plan which Mrs X appealed. The loss of education is too closely linked to the matters subject to appeal. For the period September 2024 to January 2025, we found fault causing uncertainty and consider the recommended action of an apology and symbolic payment provide a suitable remedy.

The complaint

1. Mrs X complains the Council failed to provide suitable alternative provision to her granddaughter, Z, when she could not attend school from September 2024 to July 2025. She says her granddaughter has missed education and the family have suffered avoidable 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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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.
5. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. 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)
8. 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). 
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)
10. 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

11. I have not investigated events after June 2025. This period has not yet been considered under the Council’s own complaint process, so it is premature for the Ombudsman to consider it. (Local Government Act 1974, section 26(5))
12. I have not investigated matters where a right of appeal has been used, or which would overlap with matters the Tribunal was asked to consider and would risk the Ombudsman trespassing onto the role of the Tribunal (Local Government Act 1974, section 26(6)(a), as amended). This means the period after January 2025 is also outside our jurisdiction. I have explained this further below.
13. I have not investigated Mrs X’s complaint the Council failed to make suitable alternative educational provision for Z after January 2025. This is when the Council notified the family of its decision not to reassess Z’s October 2024 EHC Plan; and their right to appeal to the Tribunal against the decision.
14. This is because:

• 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;
• 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); and
• 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 decision not to issue an EHC Plan, the special educational provision or educational placement in an EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

15. 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, or if the appeal is withdrawn or conceded.
16. Z’s parents had the right to appeal against the Council’s decision in January 2025 not to reassess Z’s EHC Plan issued in October 2024. They exercised this right in February 2025 and did not withdraw their appeal until October 2025.
17. In my view, Z’s non-attendance at school is linked to the disagreement about the Council’s decision not to reassess Z’s EHC plan and the family’s wish for Z to receive education otherwise than at school (EOTAS) as demonstrated by their subsequent application to the Tribunal to amend the grounds to include both Sections F and I which was rejected by the Tribunal. On this basis we cannot investigate Mrs X’s complaint about a lack of educational provision for Z from January 2025 to October 2025.
18. I have investigated whether the Council properly considered its duty to make alternative provision for Z from September 2024 when she stopped attending school until January 2025 when the Council decided not to reassess her EHC Plan.

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How I considered this complaint

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

Law, policy and guidance

EHC Plan 

21. 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. 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.
22. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person 
• Section I: The name and/or type of educational placement 

Reassessments of EHC Plans

23. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
24. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request 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.

Section 19 duty

25. 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.
26. If a child has an Education, Health and Care (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.

What happened

27. The following is a summary of key events. It does not include everything that happened.
28. Z was attending a mainstream primary school (School A). She has an autoimmune condition which affects immunity to infection which impacts her attendance at school. There was also an ongoing Education, Health and Care (EHC) plan assessment process.
29. On returning to school in September 2024 at the start of Year 2, Z experienced anxiety and difficulties in attending. The school contacted the Council in September with concerns about Z’s attendance.
30. There was a disagreement between the school and Z’s parents about the approach to take in encouraging Z’s attendance. There was email correspondence between the Education Welfare Officer, Z’s mother and the school. The EWO supported the development of a Personalised Learning Plan (PLP) but the school considered Z should be in school on a full time basis. Attempts to re-engage Z were not successful due to her level of anxiety. The Council explored school move options with Z’s parents.
31. An EHC Plan was issued on 24 October 2024 which named a different mainstream school (School B) in accordance with parental preference. The plan required a slow transition for Z.
32. Z’s family attended mediation about the plan which concluded at the end of November 2024. The mediation certificate sets out concern about 1:1 support and confirmation of funding for an additional member of staff and agreed a minor wording amendment. Z’s parents did not appeal the EHC Plan at this time.
33. School B provided a detailed provision map to support Z’s transition and met with Z’s mother and grandmother in November 2024.
34. Z visited School B with her mother in early December 2024. Z’s mother reported this had been difficult for Z and it was agreed to slow down the transition and build familiarity with her Teaching Assistant (TA) first.
35. Following an online meeting with the class teacher and TA in December 2024, Z attended the school in early January 2025.
36. Z then became unwell and spent some time in hospital. On returning to school towards the end of January, Z would not leave the car. It was agreed to develop a new transition plan which would include the TA meeting Z at the car and a Forest School style walk followed by art and story activities. Z’s mother subsequently sought a limited amount of online learning support with the TA which was provided.
37. Z’s mother sought an early review of the EHC plan at the end of January 2025. The Council considered this request and determined that a reassessment at that point would be premature as the EHC plan had been in place for only three months and Z had only attended school for a limited time during that period. It was recommended that enough time needed to be allowed for reintegration to happen and for the provision within the plan to be fully implemented.
38. In February 2025, Z’s family appealed the decision not to reassess the EHCP. A subsequent application to amend the grounds to include sections F and I was rejected by the Tribunal. The parents withdrew the appeal on 27 October 2025.

My assessment

39. Until a final EHC Plan is issued we cannot look at the education a child is receiving in school (please see paragraph 6 above). However, if a child is out of school for medical reasons or other reasons, we can look at whether the Council’s section 19 duty has been triggered and has been fulfilled.
40. The Council were contacted by School A in September 2024 with concerns about Z’s attendance. From this date the Council should have taken steps to consider whether it owed Z a duty to secure access to suitable, full-time provision. There is no clear evidence the Council properly considered its section 19 duty at this point and communicated any decision to Z’s family. This is fault.
41. However, it is not clear, even on the balance of probabilities, whether the Council would have considered it owed Z such a duty. This is because there is evidence the relationship between School A and Z’s parents broke down when their proposed plan of care was not agreed. In the Council’s subsequent complaint correspondence with Mrs X, it noted there was no medical evidence that Z could not attend. Therefore, I consider the injustice to Z’s family here is a degree of avoidable uncertainty.
42. The EHCP that was issued towards the end of October 2024 named a different school (School B) in accordance with parental preference and required a slow transition for Z. There was a delay before Z started to attend School B in January 2025. However, I note there was a transition plan in place and additional funding was agreed during mediation in November 2024. A visit to the school with Z in December 2024 had been difficult and her mother asked for the transition to be slowed down. In the circumstances, I do not consider there was avoidable delay which would constitute fault during this period.

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Action

43. The Council will take the following action within one month of my final decision:
1. write to Mrs X to apologise for the failure to properly consider its section 19 duty in September 2024 and communicate any decision about this to Z’s family at the time; and
2. make a symbolic payment of £500 for the family’s avoidable uncertainty.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. For the period we have investigated, 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