Summary: Ms X the Council failed to provide her son with alternative provision and a full-time education when he was unable to attend school. We have found no evidence of fault in the way the Council considered these matters. So, we have completed our investigation.

The complaint

1. Ms X complains the Council has failed to provide her son Y with alternative provision and a full-time education as he has been unable to attend school since December 2024. This has caused distress to Ms X and Y and lost educational opportunity for Y.
2. Ms X wants the Council to provide suitable face to face alternative provision while it searches for an appropriate specialist school which can meet Y’s needs.

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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. While the Local Government Act 1974 sets out what we can investigate it also explains what we may not consider.
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. 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)
7. 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.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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 concerns from January 2025 until 24 April 2025 when the Council issued a final EHC Plan following an EHC needs assessment. It was open to Ms X to have appealed to the Tribunal in April 2025 if she was unhappy with the EHC Plan, setting and provision. And it was reasonable to expect Ms X to have done so as the Tribunal can order changes to the EHC Plan and provision. Ms X subsequently appealed to SEND Tribunal in July 2025 so has exercise her right of appeal.
11. I have not investigated Ms X’s wish for the Council to provide suitable face to face alternative provision for Y while it searches for an appropriate specialist school which can meet his needs. This is because these concerns refer to events after the Council issued the final amended EHC Plan in April 2025 and so are not a matter we can consider as Ms X had appeal rights to the SEND Tribunal and has now appealed.

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How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms 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

Legislation and guidance

14. 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.

EHC needs assessment

15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. If a council agrees to carry out an EHC needs assessment it must decide whether to issue an EHC Plan. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)) including the child’s educational placement and an educational psychologist.

Alternative provision

16. 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.
17. 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.
18. 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.
19. But councils must have regard to statutory guidance - Arranging Education for Children who cannot attend school because of health needs (December 2023). This makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support such as placing a child on a reduced timetable, or where a school has made arrangements to deliver suitable education outside of school. We would expect the Council to provide evidence that it has objectively considered whether the education arranged by the school is suitable in situations where it has decided not to arrange alternative education. 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.

What happened in this case

20. What follows is a brief chronology of key events. It does not include all the information I have reviewed as part of my investigation.
21. Y attended a mainstream primary school I will refer to as School B. Y struggled to manage his emotions and became dysregulated at times but did not have an EHC Plan. Y had a special educational need (SEN) support arrangement in place from School B. This outlined the support and adapted provision Y received from the school. The Council says between September 2024 to December 2024 there were no concerns raised about Y’s attendance.
22. In November 2024 School B submitted a request for Y to have an assessment of education, health and care needs to see if he had special educational needs and needed an EHC Plan. The school said Y required provision ‘significantly over and above that a mainstream school should ordinarily provide’. The Council agreed to the EHC needs assessment and started the assessment process.
23. The Council held a meeting with School B to discuss Y in December 2024. This acknowledged there were lots of professionals working with him. It was reported Y had become disengaged with education and placed on a temporary part time timetable with a high level of one-to-one support in place to encourage him. Y then stopped attending School B at the end of term in December 2024. This was due to challenges with his emotional regulation, displaying disruptive behaviours and anxiety.
24. In January 2025 Y was placed on a further reduced timetable. The Council’s Inclusion Team was involved as it had been monitoring the situation around Y’s attendance as well as liaising with School B. Y had been issued with a three-day suspension by School B and there were unauthorised absences. After the half term holiday in February 2025 the school recorded Y’s absences as unauthorised.
25. Ms X expressed a preference for Y to attend a different mainstream primary school as she wanted Y to have a fresh start at a school. I will refer to the school as School C, (part of an academy trust) and made an in-year admission application. School C accepted the application in January 2025. The Council contacted School C to confirm a start date, but it said Y’s parents had not yet decided on a date.
26. The Council held discussions with the schools about Y’s start date as School C wanted to discuss the appropriate support needed for him. Ms X wrote to School C at the end of February for a start date saying Y had not been in school and receiving any education since January 2025.
27. The Council responded to School C and offered support. This included the Inclusion Services joining discussions so all factors could be considered for the placement and a robust support plan drawn up. Correspondence in February 2025 shows School B offered to continue to send work home to Y to access and he was welcome to return to school if he wished to. School B said Ms X did not respond to this.
28. The Council agreed to hold a Professionals meeting on 27 February 2025 following ongoing efforts by the Inclusion Team to negotiate a start date at School C. The meeting discussed transition arrangements, and the Council advised Ms X of the outcomes that day.
29. A further meeting was held on 5 March 2025 which Ms X attended. It was agreed:
• Y would start at School C on a reduced timetable.
• A teaching assistant (TA) to be available to support Y in class.
• Specialist Teachers for Inclusive Practice (STIPS) from the Council to be made available for assistance.
• Y would have access to Surrey Online School (SOS) to be provided on Mondays at 45 minutes per session.
30. Y was diagnosed with autistic spectrum disorder in March 2025.
31. The Council says its records show Y’s move to School C went ahead. Y came off the roll at School B on 6 March 2025 and started at School C on 7 March 2025 with the agreed arrangements in place. There was involvement from the STIPS Team to oversee and coordinate Y’s transition. The Council noted School C had put a SEND support plan in place for Y and he received regular TA support in class.
32. Y experienced a deterioration in his presentation leading to a ‘serious incident’ on 1 April 2025 at School C. The school said the incident was severe enough for Y to be permanently excluded but it decided not to do so.
33. The STIPS Team spoke to the school’s SENCo on 3 April 2024 about the transition and how Y was settling into school. School C advised Y was only coming in for his preferred lessons and it had adapted the timetable to enable this.
34. School C said Y was asking for more time in school but becoming more demand avoidant. The Council said it would be issuing an EHC Plan for Y with Ms X now considering specialist provision for Y through the EHC Plan process due to Y’s behaviour. The Council noted School C was now implementing a further reduced timetable and continuing to work on strategies to support Y.
35. On 22 April 2024 School C told the Council about the incident from 1 April 2025. The school asked about options for alternative provision for Y and said it had extended the online school offer to Ms X for two days a week. The Council acknowledged it was a complex situation for the school and there had been a lot of work to help Y’s transition to School C. But the EHC needs assessment was still being undertaken with the EHC Plan due to be finalised soon. The Council said School C had some SEN funding for Y’s provision already assigned so should use this in the first instance to fund a positive learning experience through the school’s budget. The Council could then learn from this while doing the EHC needs assessment process and putting an EHC Plan together.
36. The Council issued a final amended EHC Plan for Y on 24 April 2025. This listed Y’s placement as a mainstream one but did not name a specific school. The Council issued an updated final EHC Plan naming School C as Y’s placement on 22 May 2025. Ms X then appealed to the SEND Tribunal on 5 July 2025.
37. The Council confirms that from 11 March 2025 to 24 April 2025 Y remained on a part time timetable to support his reintegration into School C.

My assessment

38. The documents provided in this case show clear evidence of ongoing liaison by the Council with both schools and Ms X over Y’s education. This had started in December 2024 with a meeting to discuss Y and an acknowledgement of the high level of support he was receiving. The Council continued the liaison between January and April 2025 and its Inclusion Team were involved and monitoring the situation. Y’s place remained available at School B until 6 March 2025 as he started at School C on 7 March 2025. It appears Ms X chose to remove Y from School B before that date and the school’s offer to send work home and for Y to return to school was not responded to.
39. While Y had been offered place at School C in January 2025 this is an academy trust school and as such the Council had no powers to direct the school to give a start date. There is evidence the Council encouraged School C to arrange a start date as there was no EHC Plan yet in place for it to name a placement for Y. The Council held meetings to encourage School C to try and overcome any obstacles to Y starting. It is unfortunate it took time for School C to arrange start date, but we have no powers to investigate the actions of the school over the delay. However, despite the delay there was still place for Y at School B who had been providing support to Y as acknowledged in December 2024 and it had offered to send work home for Y to do during January and February 2025.
40. Once Y started at school C in March 25 the documents show the Council’s Inclusion Team was still involved to oversee and coordinate Y’s transition. The Council was aware School C had a SEND support plan in place, and he was receiving TA support in class. From April 2025 onwards the evidence shows the Council continued to contact School C and checking the arrangements in place to support Y. There is therefore no evidence of fault by the Council as it maintained an overview of Y’s education and transition to School C.
41. School C contacted the Council on 22 April 2025 requesting alternative provision after the incident involving Y on 1 April 2025. The Council responded the EHC needs assessment was ongoing and the school should use the SEN funding to provide a positive learning experience. There is no evidence in Council’s response it had considered whether the placement at School C remained available and accessible to Y at that point according to the statutory guidance. We would usually expect a council to give consideration to this. However, events overtook this as the Council issued a final amended EHC Plan on 24 April 2025. This gave Ms X appeal rights to the SEND Tribunal if she disagreed with the plan and provision. So, we would not investigate the matter further as Ms X had appeal rights which she then engaged.

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Decision

42. I find no fault by the Council in this case.

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Investigator's decision on behalf of the Ombudsman