Summary: We have found the Council at fault for its poor communication in response to Ms X’s request for Education Other Than At School for her son, Y. The Council also failed to consider it Section 19 duty when Y stopped attending school. This fault caused Ms X and Y avoidable distress and caused Y to miss out on alternative provision. The Council has agreed to take action to remedy this injustice.

The complaint

1. Ms X complains the Council failed to provide her son, Y with a suitable education during his last year at school. She said the Council also provided poor communication in relation to her request for Education Other Than At School (EOTAS).
2. Ms X said that Y could not sit his GCSEs as result of the Council’s fault and says the whole situation has taken its toll of her and Y’s mental health.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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.
6. 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)

Back to top

What I have and have not investigated

7. I have not investigated the Council’s decision about Ms X’s request for EOTAS for Y. Ms X could have appealed this decision when the Council issued Y’s final amended EHC Plan. I have however considered how the Council reached its decision.

Back to top

How I considered this complaint

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

Back to top

What I found

Law and guidance

EHC Plan

10. 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.

Post-16 – review, provision and naming placement deadline

11. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

Section 19 duty

12. 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.

Establishing a section 19 duty

13. 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.
14. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
15. 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.

Part-time timetables

16. 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.

What happened

Background

17. Mrs X’s son, Y has SEN and an EHC Plan since 2023. Y was attending a mainstream secondary school. However, after he experienced substantial social, emotional and mental health (SEMH) challenges, his attendance declined. He started at a community school in September 2023. This provided an alternative route to gain a suitable education. Y stopped attending in October 2023 due to increased anxiety. The school provided online work between October 2023 and January 2024.

Investigation period

18. In January 2024, Y returned to school on a reduced timetable (8 hours a week plus mentoring) although his attendance remained low (under 20% in December 2024).
19. In November 2024, the Council carried out an annual review of Y’s EHC Plan. Ms X requested an Education Other Than At School (EOTAS) package as Y’s anxiety was a barrier to him attending school.
20. The SEND panel rejected Ms X’s request for EOTAS in February 2025 stating that he should consider some post-16 options. The Council consulted three post-16 establishments and the school confirmed that it could continue to offer Y alternative provision until the end of the academic year. Two of the colleges were unable to offer Y a placement.
21. In May 2025, the Council issued a draft amended EHC Plan. Ms X provided comments, requesting EOTAS again. The panel reviewed Ms X’s request in June but did not approve it.
22. Ms X complained to the Council the next day. She said that Y had not received any education since 2024 despite EOTAS being requested at the annual review in November.
23. The Council responded to Ms X’s complaint. The Council explained why it did not agree to Ms X’s request for EOTAS. It did not respond to Ms X’s concerns that Y had not received an education.
24. Ms X brought her complaint to the Ombudsman in July.

Update

25. In July, the SEN panel refused Ms X’s request for EOTAS again. The Council then issued a draft amended EHC Plan. Ms X responded and asked the Council to name a local post-16 college. The Council chased the college for its consultation response (sent in February). It then issued a final amended Plan, naming Ms X’s preferred choice. Y started college in September 2025.

My findings

Poor communication re EOTAS request

26. The Council misinterpreted Ms X initial request for EOTAS. It considered it as a request for post-16 provision rather than an immediate request as Y had stopped engaging with the AP delivered by the school.
27. Poor communication with Ms X to clarify the request meant that the Council delayed informing Ms X of the panel’s decision until June 2025. By this time, it was too late.
28. This was fault. It is unclear whether the panel’s decision would have been any different but for the poor communication and therefore I cannot say that the fault caused Y to miss out on education. However, on balance, I consider the poor communication from the Council caused Ms X avoidable frustration and uncertainty. The Council has agreed to apologise and make a symbolic payment of £500 in recognition of the avoidable distress caused.

Missed provision

29. In February 2025, the Council became aware that Y was not attending his reduced timetable placement at school. I have seen no evidence that the Council considered its Section 19 duty. All focus appeared to be on finding Y a post-16 placement for September.
30. This was fault. The Council had a duty to ensure that Y received an education and his EHC Plan provision. When it became aware that Y was not receiving the offered provision, it should have considered whether it had a duty to secure alternative provision.
31. This fault caused Y to miss out on a suitable education between February and July 2025. This was Y’s GCSE year and therefore the injustice to Y was more significant. I have reflected this in my recommended remedy.
32. Y missed approximately 2 school terms. I recommended a remedy in line with our Guidance on Remedies, taking into account that it was a significant school year and Y’s SEMH challenges. The Council has agreed to make Ms X (on behalf of Y) a symbolic payment of £1500 per term (£3000 in total) in recognition of the missed provision.
33. In response to my enquiries, the Council said that its approach to the consideration of its Section 19 duty has developed and changed since February 2025. The Council has agreed to provide us with details of the new approach and how it will prevent Section 19 decisions being missed in future.

Back to top

Agreed action

34. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Ms X for its poor communication in relation to her EOTAS request and its failure to consider its Section 19 duty.
2. Pay Ms X £500 in recognition of the distress caused by the Council’s fault.
3. Pay Ms X (on behalf of Y) £3000 in recognition of the missed provision caused by the Council’s failure to consider whether it is needed to secure alternative provision for Y.
35. Within 3 months, the Council has agreed to:
1. Share details with us of its new approach to the consideration of its Section 19 duty and how this will prevent alternative provision being missed in the future.
36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

37. I find fault causing injustice. The Council has agreed to take action to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman