Summary: Mrs X complained the Council failed to provide education for her child Y, when she was unable to attend school and delayed completing an Education, Health and Care Needs Assessment. We found fault by the Council on both matters. The Council has agreed to apologise to Mrs X and Y and make a payment to recognise the injustice caused to them.

The complaint

1. Mrs X complained the Council did not provide her child, Y, with alternative provision when she was too unwell to attend school. She also complained about delays in completing an Education, Health and Care Needs Assessment (EHCNA)
2. Mrs X stated the Council’s failure to provide alternative education to Y means she has missed education she is entitled to and her wellbeing has been negatively affected. She also explained the lack of provision has caused her stress and made doing her job difficult due to needing to support Y.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (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 SEND Tribunal in this decision statement.
6. 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). 
7. 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)
8. 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 special educational provision or the educational placement in the EHC plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. 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.
10. 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(i), as amended)
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
12. 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

13. I have investigated Mrs X’s complaints about the EHCNA and the lack of alternative education.
14. I have not investigated any decisions which included a right of appeal to the SEND Tribunal or any matters which were a consequence of a decision which had a right of appeal.

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How I considered this complaint

15. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
16. 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

17. 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.
18. 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. It says the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• The process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC plan or refuse to issue a plan within 16 weeks.
• If the council goes on to issue an EHC plan, the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

Alternative education

19. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
20. 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)
21. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that 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)
22. 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)
23. 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;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and 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; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

24. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

25. Mrs X’s child, Y, attended a mainstream school. In September 2024 Y became unwell and struggled to go to school.
26. In October 2024 an Educational Psychologist (EP) completed an assessment of the barriers to Y receiving an education.
27. Following the EP’s assessment and subsequent report, Y’s school introduced measures to help reintegrate Y back into education.
28. Also, in October Y received online educational provision however this stopped shortly after as funding was not approved.
29. Y’s case was discussed at Integrated Consultation Panels held in November 2024, December 2024 and in January 2025. The panel recommended Y be referred to the Early Help and Support Team and the school nurse. However, Y was too anxious to engage and this support was declined.
30. On 20 December Mrs X requested an Education, Health and Care Needs Assessment (EHCNA) for Y.
31. On 7 January the Council considered Y’s case and asked her school to put in place a plan to help her reintegrate back into school however the measures were unsuccessful.
32. On 21 January 2025 the Council decided to assess Y for an Education, Health and Care (EHC) Plan.
33. The Council gathered information including from Y’s school and an Educational Psychologist for the assessment, which it received in May 2025.
34. On 3 July the Council issued a draft EHC Plan for Y.
35. Mrs X was unhappy with Section F of the draft plan, and a series of meetings were held between her and the Council throughout September.
36. On 13 October the Council issued Y with a final EHC Plan. The plan named Y’s current school in Section I. Section F of the plan set out the specialist interventions Y needed to help support her accessing education.
37. In November Y’s school advised that it could not offer her a place as it could not deliver the provision set out in Section F of her EHC Plan. In response the Council reviewed Y’s EHC Plan and sough an Occupational Therapy assessment to support consultations for a new placement.
38. Meanwhile Mrs X appealed details of Y’s EHC Plan to the SEND Tribunal.
39. In early January 2026 the Council began to consult with other schools to find a placement for Y.
40. Also, in early January the Council completed an online tutoring referral requesting lessons in English and Maths, with the amount of provision to increase over time.
41. In mid-February the Council ended Y’s online provision as she had been unable to engage.
42. In March the Council made a referral for 10 hours per week of face-to-face tuition for Y.
43. Also, in March the Council requested its Occupational Therapy service stop working with Y as she was unable to engage with the service. It also asked Mrs Y to visit a school which said it could meet Y’s needs.
44. Mrs X’s appeal to the SEND Tribunal is ongoing.

Mrs X’s complaints

45. Mrs X complained to the Council in January 2025 about its failure to provide Y with alternative education because she could not attend school due to being unwell.
46. The Council replied. It said it had provided appropriate support and interventions to help Y access education. It did however note delay between its decision to assess Y for an EHC Plan and seeking the specialist advice it needed to do so.
47. Unhappy Mrs X escalated her complaint to the second stage of the Council’s complaints process.
48. The Council’s replied in April 2025. It said a full-time education is available to Y at her school with a suitable support package in place.
49. Unhappy Mrs X complained to the Ombudsman.
50. We made enquiries of the Council. It told us:
• it considers Y’s school place was available and accessible to her prior to her EHC Plan being finalised in October 2025. This was for the same reasons as set out in its complaint replies to Mrs X.
• there was a delay in progressing the EHCNA request due to delay in receiving advice from Y's school and the EP.
• Mrs X’s appeal to the SEND tribunal is ongoing and it considers it has acted appropriately to find Y an alternative placement.

Finding

EHC process

51. The SEND Code of Practice states that councils must give their decision in response to any request for an EHCNA within a maximum of six weeks from when the request was received, and that the whole process from the point when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks. 
52. The Council received Mrs X’s request for an EHC assessment on 20 December 2024. Therefore, it should have issued Y with a final EHC Plan by 22 April 2025. However, it did not do so until 13 October 2025. This is a delay of 25 weeks and is fault by the Council. It caused Mrs X distress and delayed her right of appeal to the SEND Tribunal.
53. The Council issued a final EHC Plan on 13 October 2025. The plan set out the provision Y required. If there had been no delays by the Council, the provision set out in Section F of the plan should have been in place by late April 2025. Therefore, because of the delay Y missed out on provision to meet her needs. This is injustice.

Alternative education

54. Mrs X stated Y has not received any education from October 2024 onwards. We cannot investigate the lack of education from 13 October 2025 onwards for the reasons explained in paragraphs 7-9. The lack of education during this period was connected to the Council’s decision that Y could continue attending her mainstream setting, which had a right of appeal.
55. I have investigated whether the Council should have provided alternative education between 1 October 2024 and 13 October 2025.
56. The Council is required to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or otherwise. In September 2024 the Council was made aware that Y was not attending school. At this time Y’s school was trying to reintegrate Y back into school. It was reasonable for the Council to wait to see if the measures it implemented were successful before deciding whether it needed to arrange alternative provision.
57. In November 2024 Y’s case was discussed at an Integrated Consultation Panel and so the Council was aware the measures implemented by her school were unsuccessful and she was not receiving an education. At this point the Council should have recognised it had a duty to provide Y with alternative education. Its failure to do so is fault. It caused Y to miss out on education she was entitled to between November 2024 and 13 October 2025. This is injustice.
58. I acknowledge the Council continued to liaise with Y’s school to see if it could provide her with suitable education from November 2024 onwards. However, the efforts were unsuccessful and so it should have provided Y with suitable alternative education between November 2024 and 13 October 2025.

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Agreed Action

59. Within one month of my final decision the Council should:
• Apologise to Mrs X and Y for the identified fault. The apology should be in accordance with our guidance, Making an effective apology
• Make a payment of £3600 for not providing Y with suitable education between November 2024 and October 2025. This figure equates to £1200 per term and is in keeping with our guidance on remedies and considers the loss of both alternative provision and the specialist provision set out in Section F of Y’s EHC Plan for the period I have investigated.
• Make a payment of £300 to Mrs X to acknowledge her distress, frustration and the time and trouble she has been put to in pursuing the matters complained about.
• Remind staff of its duties under law and guidance to provide alternative provision when a child of statutory school age is out of school for health reasons. The Council should share a copy of our focus report ‘Out of school…. Out of sight?’ and our final decision with the reminder.

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

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Decision

61. find fault causing injustice. The Council has agreed to take the above action to remedy the injustice caused to Mrs X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman