Summary: We found fault on Mrs Y’s complaint about the Council failing to provide her son, who was not attending school, with suitable education, as well as with provision set out in his Education, Health and Care plan. The Council agreed to send an apology, make a symbolic payment for the injustice caused, as well as taking action to ensure the failures found cannot be repeated in the future.

The complaint

1. Mrs Y complains about the Council failing to provide:
1. suitable education for Z, her son, from July 2023 to May 2025 despite him having an Education, Health and Care (EHC) plan; and
2. provision set out in his EHC plan during this period.
2. As a result, her son lost education and provision set out in his EHC plan which placed the family under great pressure and financial hardship. Her son has also been affected socially and emotionally.

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The Ombudsman’s role and powers

3. 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)
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. 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)
6. 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. 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)
7. 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

8. I have not investigated the following:
1. 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. Mrs Y complained to us in June 2025. This means we would usually only investigate from June 2024 unless we consider there were good reasons to exercise discretion to look further back. I considered Mrs Y’s explanation about why she did not complain to us sooner but saw no good reason why we should investigate any earlier complaint.
2. The law also says we cannot normally investigate a complaint when someone has a right of appeal, reference, or review to a tribunal about the same matter. As she used her right to appeal in November 2024 to challenge what the EHC plan said about his special educational needs in section B, the provision set out in section F, and the school named in section I, we have no discretion to consider investigating any complaint she may have about these issues.
3. This means the period of this investigation is from June to November 2024. Information outside of this period is given only to put the complaint into context.
4. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC plan that is not being delivered to the child or young person, and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education, when the reason the child or young person is not attending education is, in our view, unconnected to, or is not a consequence of, a matter that was, or could have been, part of an appeal to the tribunal.  

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How I considered this complaint

9. I considered evidence provided by Mrs Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of the draft decision to Mrs Y and the Council. I considered their responses.

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What I found

EHC plan process

10. A child or young person with special educational needs may have an 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. 
11. 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 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)  
12. 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 show appropriate oversight in gathering information to fulfil their legal duty. As 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 plan review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative provision

13. Section 19 of the Education Act 1996 says councils must arrange suitable alternative educational provision when they find a child is unable to attend school because of permanent exclusion, an illness, or for any other reason which makes 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.
14. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
15. 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.
16. 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.
17. 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.
18. If a child has an EHC plan, the council also has an ongoing duty to arrange the support guaranteed by the plan. This might not always be possible, such as where the Special Educational Needs (SEN) support is designed for the child’s normal classroom setting.
19. 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 parents.
20. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: ‘Supporting children out of school’. (October 2025) Our guidance says that councils should:

• consider all the reasons for a child’s absence from school and make a written evidence-based decision about whether it will arrange alternative education provision.
• as a matter of good practice, it should communicate this decision to parents. Where a council decides not to arrange alternative education, it should tell parents the expectations about school attendance, and the potential consequences for continued absences.
• where it decides to arrange alternative education, it must ensure the provision meets the individual needs of the child. As a matter of good practice, it should explain its reasons for providing a part-time education if it decides the child cannot cope with full-time provision.
• keep all cases of part-time education under review with a view to increasing when the child is able.
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary.
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) to ensure issues are dealt with promptly by the right people, and any complaints are identified and responded to under the relevant policy.

21. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Councils should keep oversight and control to ensure their duties are properly fulfilled.
22. The courts considered the circumstances where the section 19 duty applies. Case law established a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

23. Mrs Y complained her son Z, who is now 15 years old, was out of education from July 2023 as his mainstream school (school 1) could not meet his needs. The Council named school 1 in his EHC plan which it issued at the end of the year. Although it was aware of him being out of school in November, it said it issued consultations to schools and was satisfied his EHC plan could be met within mainstream education provision.
24. Despite her repeatedly raising concerns, and asking for alternative provision, she said the Council failed to act to ensure he received suitable education provision. Her husband gave up his job to arrange suitable education for Z.
25. In January 2024, Mrs Y told the Council Z was not attending school and asked for section 19 provision. This was because school 1 could not meet his needs. The Council consulted six schools in response, including school 2.
26. In February, the Council discussed Z with school 1. This included discussions about non-attendance, lack of engagement with online learning, attempts at flexi-timetables, and the school considering alternative provision.
27. In May, the Council again met with school 1. This was to discuss the offer of school 2.
28. In June, there was a submission to the Placement Resource Panel (the panel) as Mrs Y wanted Z to go to school 2. The offer from school 2 was considered by the panel. It noted Z was not currently attending school and had not done so since June 2023. He had a temporary flexible timetable, but the school had large classes which did not meet his needs.
29. In July, the Council told Mrs Y the placement she wanted had not been agreed which meant school 1 would remain on his EHC plan. It would ensure casework continued over the summer holidays. It suggested meeting her in September to discuss the next steps and update his EHC plan. He would be going into Year 10 that month. He was making no progress at school, and the school said it was not suitable for his needs. The panel decided further exploration was needed for a mainstream setting, possibly a flexi placement.
30. In September, the Council held its annual review. The school again explained Z had not attended school since June 2023. The Council confirmed it had been aware of this in November 2023. The school said in its consultation, it made it very clear why it could not meet Z’s needs. It tried to offer some of the provisions in his EHC plan, but he refused to engage. He was completely isolated from staff and his peers.
31. The school suggested attempting alternative provision, but Z refused it. It set out what it had attempted. This included trying to get Z to an onsite alternative provision, which he refused. It tried to send classroom work home through an online platform, but this was also refused as he liked to keep home and school separate. It also spoke to another provider but, Mrs Y refused for the same reason. The school noted Mrs Y said that until Z received the placement to which he was entitled, he would not attend a school setting.
32. The Council named school 1 in his EHC plan in November instead. She appealed this decision to a tribunal.
33. In April 2025, the tribunal ordered Z attend school 2 and he started there in May.
34. Mrs Y complained about two years of lost education.
35. In response to our enquiries, the Council accepted:

• she asked for section 19 provision, but it could provide no copy of its response to her.
• school 1 implemented alternative provision, but the Council had no details of when this started or how many sessions were attended. Any alternative provision was monitored by school 1.
• there was no evidence on its system about contact and liaison between it and school 1 about Z’s attendance and provision. The casework officers from this period have since left.
• it could not provide evidence it objectively considered whether any education arranged by the school was suitable. It would explore further options of mainstream education within a ‘targeted mainstream provision’.

My findings

Complaint a): suitable education

36. I found fault on this complaint. On reaching this view, I considered the following:
1. There was a failure by the Council to show it ensured, and was satisfied, that Z received a suitable education. It could not show it objectively considered whether the education and support the school provided was suitable for Z.
2. The Council accepted school 1 implemented some alternative provision but could give no details about when this started or how many sessions Z attended, for example.
3. It also failed to show it considered any attempts the school made for Z’s reintegration back into school.
4. There was also nothing to show the Council reached an evidence-based, objective decision, taking account all the reasons for Z’s continued absence from school, about whether it was necessary to step in and make alternative provision itself.
5. The Council could provide no evidence of contact between it and the school about attendance and what was being provided.
37. I consider these failures amount to fault which caused Mrs Y and Z an injustice. This was a frustrating period for them. They were caused stress and Z lost provision. There was also some uncertainty about whether the situation would have been different had the fault not happened.

Complaint b): provision under EHC plan

38. I found fault on this complaint. In reaching this view, I took account of the following:
1. The Council failed to show it ensured, and was satisfied, that Z received provision set out in his EHC plan. It had been aware for some time that Z was not attending school. While much of the provision set out in the EHC plan was based on Z being in the classroom, the Council failed to show evidence of contact between it and the school about provision.
2. The Council failed to show it properly monitored the problem with EHC plan provision.
3. I consider the failures caused Mrs Y and Z an injustice. They caused frustration, stress, and Z lost provision under his EHC plan.

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Action

39. I considered our guidance on remedies. I also considered Z’s special educational needs, the lack of provision, and the impact this had on the family as a whole.
40. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for the injustice caused by the failure to: show it ensured, and was satisfied, that Z received suitable education, as well as provision set out in his EHC plan; show evidence of contact and liaison with the school about provision; provide proper oversight of his EHC plan provision.
2. Make a symbolic payment of £1,600 (0.5 x term: June to July 2024; and 0.5 term: September to November 2024: total 1 term x £1,600) to Mrs Y for the injustice caused by the fault found.
3. Act to ensure that on future cases, it can show it satisfied itself that a child out of school received suitable education and that it considered the steps taken to reintegrate the child back to school.
4. Ensure there is a written record of any decision about whether it needed to make section 19 alternative education provision.
5. Ensure records of contact and liaison with a school are made and retained showing it was aware of what education and provision under an EHC plan was being made by the school.
6. Ensure it had a written record showing it considered whether provision under an EHC plan was being provided for a child not attending school.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I found the following on Mrs Y’s complaint against the Council:

• Complaint a): fault causing injustice; and
• Complaint b): fault causing injustice.

43. The agreed action remedies the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman