Summary: Ms X complains there were failings in the way the Council dealt with the Education Health and Care Plan for Miss Y’s son, delayed making and paying a personal education budget and ensuring Miss Y’s son received the educational provision specified in his Education Health and Care Plan. We have found no evidence of fault in the way the Council considered these matters. We found fault as the Council delayed carrying out the annual review of the Education Health and Care Plan. But this fault did not cause Miss Y an injustice, so we have completed our investigation.

The complaint

1. Ms X complains for Miss Y there were failings in the way the Council provided special educational provision for her son Z. In particular Ms X says the Council:
• Delayed making alternative provision for Z between January to March 2024 when he was not attending school.
• Delayed processing and making personal education budget (PEB) payments in 2024 and the PEB review in July 2024 forced Z back into school.
• Refused to consider Miss Y’s request to provide Z with alternative provision between January and March 2025.
• Failed to support Z as a child with an Education Health and Care Plan (EHC Plan) while at risk of permanent exclusion, identify risks and put solutions in place. Ms X says the Council failed to understand Z’s SEND needs so the support in the EHC Plan was not being implemented. And the Council failed to act on concerns they raised the school were not delivering educational provision specified in the EHC Plan from January 2024, so Z has missed out on educational provision causing distress.
• Failed to recognise a duty to provide Z with free school meals (FSM).

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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. 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). 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.
4. 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)
5. 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

6. I have investigated Ms X’s concerns from January 2024 to 4 April 2025 when the Council issued a final amended EHC Plan. Miss Y had the right of appeal after the Council issued the EHC Plan in April 2025. It was open to Miss Y to have appealed to the Tribunal if she was unhappy with the EHC Plan, setting and provision. And it was reasonable to expect Miss Y to have done so as the Tribunal can order changes to the EHC Plan and provision.

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How I considered this complaint

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. 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 statutory guidance

9. 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.

Maintaining the Plan

10. 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 have 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)
11. 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 demonstrate appropriate oversight in gathering information to fulfil their legal duty. At 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 review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Reviewing EHC Plans

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176). Case law says councils must issue the final amended EHC Plan within a further eight weeks.

Alternative provision

13. 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.
14. 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.
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.
16. 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.
17. If a child has an 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.
18. 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 the parents.

What happened in this case

19. What follows is a brief chronology of key events. It does not include all the information I have reviewed as part of my investigation.
20. Z has an EHC Plan for Social, Emotional and Mental Health (SEMH). The Council named School B, a mainstream school as Z’s placement and he started there in September 2023. Z often struggled to regulate his behaviour resulting in some exclusions from school.
21. Z was out of school in January 2024, and the Council and School B held a reintegration meeting to discuss his return. The Council confirmed School B remained Z’s placement and it had no evidence it was unavailable or inaccessible to him. The Council was satisfied School B had made reasonable adjustments for Z including behaviour support planning, provision in the Pupil Learning Centre (PLC) and reintegration work. And School B gave access to learning and support in line with Z’s SEN needs.
22. In February 2024 Miss Y told the Council Z would not be returning to School B and submitted a request for a PEB to use for alternative provision for Z.
23. The Council agreed to the PEB on 11 February 2024 to ensure continuity of Z’s education. It was satisfied a suitable school placement remained available and accessible to Z. And agreed the PEB to facilitate Z’s return. The Council did not consider the placement had broken down but considered Z’s reduction in attendance was linked to his lack of engagement with school. The Council confirmed there was no medical or other evidence preventing Z’s attendance.
24. The Council sent Ms X the PEB contract the next day for 19 February 2024 to 1 April 2024. The PEB agreement:
• Included 10 hours per week tuition at Company C, a tuition provider, access to a secondary school online learning platform, personal training, snooker club, football camp, and a one-off payment for a laptop.
• payments would be made directly to service providers, with some payments made directly to Miss Y subject to proof of expenditure.
• Funds were for support in the family home or community to help Z to transition back to school.
• The Council had no responsibility for costs outside the agreed budget and expenditure evidence must be maintained.
• The Council would review the PEB in April 2024.
25. Miss Y asked for the PEB payments to be fast tracked. The Council confirmed it would process it quickly and Miss Y could still go ahead with the tuition as the providers would invoice the Council directly anyway.
26. In May 2024 the Council extended the PEB from 1 April 2024 to 31 July 2024, continuing the tuition and enrichment activities to Z’s support reintegration. The Council confirmed it processed payments via its financial systems, with pro-forma invoices evidencing direct payments to Miss Y. The Council told Miss Y it would consider the PEB in July 2024 to review Z’s return to full time education and how the budget had been administered.
27. The Council reviewed the PEB in July 2024. The outcome was:
• The PEB would cease at the end of July 2024 in line with its agreed purpose with the expectation Z would return to full time education at School B as the agreement clearly stated.
• The school remained Z’s named placement.
• Z’s tuition reports confirmed he had engaged and made academic progress.
• School B had a clear plan for reintegration and continued support including a behaviour support plan.

Events from September 2024

28. Z returned to School B in September 2024. In October 2024 the Council sent the school the annual review documents. School B said it found difficulty arranging the annual review as Ms X and Miss Y did not respond to proposed dates until the day before. This made it too late as other meetings had been scheduled.
29. School B and the Council held the annual review meeting on 8 November 2024 with Miss Y. The meeting notes reported Z doing well with learning. But Miss Y said Z was struggling due to anxiety from being separated from friends. This was due to School B imposing sanctions because of his behaviour and having to go to the PLC. Miss Y disagreed with the school’s behaviour support plan and considered Z’s special educational needs were not being met. Miss Y asked the Council to rewrite Z’s EHC Plan and agree a PEB for extra tuition to enable Z to catch up on some missed learning.
30. School B said Z was referred to the PLC to avoid repeated suspensions and potential permanent exclusion. School B confirmed Z had access to targeted support and interventions in the PLC. If Z engaged with the behaviour support plan and improved behaviour he would have a route back to normal lessons.
31. The Council refused Miss Y’s request for a PEB and confirmed Z was on a very high level of funding so School B should be facilitating any gaps. The Council was satisfied by School B’s documents and review material showing it was providing access to learning and support in line with Z’s SEN needs.
32. School B issued a proposed amended EHC Plan on 19 December 2024 to Miss Y for comments following the annual review meeting. It would then send her comments to the Council.

Events from January 2025

33. Ms X responded to the EHC Plan in January 2025 asking for professional input through assessments from an Educational Psychologist (EP), Occupational Therapist (OT) and Speech and Language Therapy (SALT). School B agreed to seek the input but needed Miss Y’s consent to do so. It advised how Z could access his work as he was not attending school.
34. The Council asked School B for the annual review paperwork as it had not been received. School B explained Miss Y’s request for professional input, and she had given consent for EP involvement but not yet for SALT and OT. The school said it was considering Miss Y’s request for alternative provision.
35. Ms X complained to the Council in January 2025 alleging Z had been too anxious to attend school since December 2024. Ms X said it was due to School B’s approach to place him in the PLC rather than attending mainstream school. Ms X said this impacted detrimentally on Z as a child with an EHC Plan with SEN. Ms X said the Council as well as being responsible for the EHC Plan provision, should have taken responsibility for Z’s educational provision as he was absent from school for 15 days or more due to ill health. Ms X submitted another PEB request for alternative provision for Z until July 2025.
36. On 17 January 2025 the Council told Miss Y and School B on it intended to amend Z’s EHC Plan.
37. The Council declined the PEB request on 27 January 2025, confirmed Z remained on roll at School B and it was a placement available to him at all times. The Council said it had named the school as a placement for Z as part of his EHC Plan. If Z needed alternative provision it should come from its funding to the school. The Council confirmed it had asked School B to look into doing so.
38. The Council said it ensured the provision in section F of the EHC Plan was being delivered. This was by naming the school placement with the school responsible for delivering the provision in the EHC Plan with Council oversight. The Council was satisfied School B:
• continued to offer Z access to learning and provided education and support.
• Provided links and mechanisms for Z to access work during periods of absence.
• Developed an alternative provision offer in February 2025 with its own resources via Company C according to Ms X and Miss Y’s requests. However, Ms X declined it saying it was ‘not fit for purpose’ and took up the offer for Z to return to school. The Council says Ms X and Miss Y did not discuss alternative provision further with School B.
39. The Council did not consider its duties under s 19 to provide alternative provision were triggered as a school space remained available to Z. It confirmed Z’s absence was not due to lack of provision but due to his engagement and Ms X and Miss Y’s disagreement over delivery. The Council advised Miss Y of Section 7 of the Education Act 1996 about a parent’s duty to ensure their child receives an efficient full-time education. So, the Council asked Miss Y to keep working with School B to ensure Z continued to receive a full-time education.
40. The Council issued a draft amended EHC Plan to Miss Y on 10 March 2025. Ms X asked the Council to extend the statutory 15-day deadline for parents to respond with comments, but this was declined by the Council. Ms X submitted comments on 24 March 2025 and requested a meeting to discuss the draft EHC Plan.
41. The Council met with Ms X and Miss Y on 31 March 2025 to discuss their comments on the draft amended EHC Plan. The Council issued the final amended EHC Plan on 4 April 2025 naming School B, a mainstream secondary school, as Z’s placement.
42. The Council held a mediation meeting with Ms X and Miss Y to discuss comments made on the final amended EHC Plan as part of Miss Y’s appeal rights. The Council issued a further amended final EHC Plan on 24 June 2025 following the mediation. Ms X complained to us in July 2025.
43. The Council responded to Ms X’s complaints about FSM for Z when he was not attending school. The Council confirmed its role was to determine eligibility for FSM. Once this was confirmed the school the pupil was on roll at had the responsibility for providing the meal. If a pupil was not attending school but remained on the school roll and were entitled to FSM, then the school was responsible for providing the free meal. Z had been on roll at School B since September 2023 therefore the Council said School B was operationally responsible for providing any FSM and not the Council.

My assessment

44. Ms X says the Council delayed making alternative provision for Z between January to March 2024 as he was not attending school. The Council confirmed Z remained on roll at School B during this time and it had no evidence the placement was unavailable or inaccessible to him. The Council was satisfied School B was making reasonable adjustments for Z and the reduced attendance was due to lack of engagement. There was therefore no requirement for the Council to make alternative provision for Z between January to March 2024. And so, no evidence of fault by the Council. It quickly agreed to Miss Y’s request for a PEB to support Z’s transition back into school.
45. There is no evidence from the documents provided the Council delayed setting up the PEB in February 2024. This was because it was submitted by Miss Y in early February 2024 and agreed about a week later. The Council advised Miss Y she could start arranging the provision before it made the PEB payments as the providers would be invoicing the Council directly.
46. The Council agreed to continue with a PEB in May 2024, backdated it to April 2024 until 30 July 2024. The PEB review in July 2024 confirmed Z would be returning to school in September 2024. The Council considered the short term PEB had enabled Z to engage and achieve academic success. And it was satisfied School B had a reintegration plan in place along with a behaviour support plan. The Council confirmed it was always the intention the PEB would be a temporary plan to support reintegration and Miss Y was aware of this from discussions and the PEB agreements. Therefore, there is no evidence of fault by the Council in agreeing, setting up and paying the PEB. And the documents show Ms X and Miss Y were aware the PEB was until July 2024 with the intention of Z returning to School B in September 2024.
47. The documents provided show the Council did consider Ms X and Miss Y’s request for alternative provision between January to March 2025 but declined it. This was because the Council was satisfied there was a school place available and accessible to Z. And School B was receiving high funding for Z so could make alternative arrangements for him if necessary. There is therefore no evidence of fault by the Council.
48. The documents provided show the Council did consider Z’s needs as a child with an EHC Plan and ensured he had support. The PEB arrangements are evidence of this to provide support to his transition back into school. The evidence provided further supports this by showing liaison between the Council and School B over Z’s education. The evidence also supports there was liaison between School B and the Council over Z’s EHC Plan provision as we would expect a council to do. The Council satisfied itself the placement at School B was considered available and accessible, provision was due to be delivered in school, and it had also arranged a PEB to support reintegration. The Council was also satisfied that there was no medical or other evidence to prevent Z’s attendance so its duty under s19 was not triggered. There is therefore no evidence the Council failed to respond to Ms X and Miss Y’s concerns School B was not delivering the educational provision in Z’s EHC Plan.
49. If Miss Y considered the Council had not understood Z’s SEN, then she had right of appeal to the SEND Tribunal in April 2025 when the Council issued a final amend EHC Plan if she did not agree with the provision being made. As paragraph six explains, I consider it reasonable to expect Miss X to have use those rights to challenge the EHC Plan and provision.
50. The Council has explained that once it established eligibility for FSM it is the responsibility of the school the child is on roll at to make that provision. Therefore, it is for Miss Y to pursue any issues about FSM with School B.
51. The documents provided show the annual review took place on 8 November 2024. The Council issued the draft amended EHC Plan on 10 March 25 and the final amended Plan on 4 April 2025. The whole annual review process should take 12 weeks from the date of the annual review meeting. This means the Council should have issued the final amended EHC Plan in mid-February 2025 according to the timescales laid down in the regulations. Therefore, there was a delay by the Council in carrying out the annual review process in 2024. This is fault as the Council did not follow the statutory timescales.
52. However, I consider the injustice caused to Miss Y is mitigated as some of the delay was due to her requests for further professional assessments of Z and in providing consent to carry out the assessments. The evidence also shows the Council was mindful of timescales. This is because it refused Ms X’s request for an extension of time to comment on the draft EHC Plan thereby not allowing matters to drift. Therefore, there is limited injustice caused to Miss Y by the delay in this case to warrant our further involvement. Therefore, I am ending my investigation into this part of the complaint.

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Decision

53. I find fault not causing injustice.

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Investigator's decision on behalf of the Ombudsman