Summary: The Council delayed issuing Y’s final Education, Health and Care Plan following an annual review and there were faults in its communication with Ms X. The Council has agreed to apologise and make a payment to acknowledge the frustration and delayed right of appeal this caused. There was no fault in the way it reached the decision not to provide alternative provision when Y was out of school between April and September 2025.

The complaint

1. Ms X complained the Council failed to provide her child Y with the provision in their Education, Health and Care (EHC) Plan or any alternative education since Y was unable to attend school. She says her child’s education and welfare have suffered and she has been caused distress and financial loss.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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) 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)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. As I have explained above, we cannot investigate a complaint if someone has appealed to a Tribunal about the same matter, even if they later withdraw all or part of the appeal. 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 and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
10. Ms X has appealed to the Tribunal about the school named in Y’s EHC Plan thereby placing the matter out of our jurisdiction. So, I cannot consider any complaint regarding the content of the Plan.
11. 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.
12. 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. I can investigate what happened from April 2025 when Y stopped attending school, until September 2025 when the Council issued the final EHC Plan. I cannot look at what happened after September 2025 when Mrs X’s right of appeal started. This is because Y’s missed education is linked to the issues Mrs X appealed.
13. 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).

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How I considered this complaint

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

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What I found

Relevant Law and Guidance

Education, Health and Care Plan

16. 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.
17. The EHC Plan is set out in sections. Section B of the EHC Plan sets out the child’s special educational needs, section F sets out the special educational provision needed by the child and section I outlines the name and/or type of educational placement. We cannot direct changes to the sections about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
18. 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

Annual review

19. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Alternative education provision

20. 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.
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)

What happened

22. Y has a diagnosis of autism spectrum disorder and other health conditions. Y attended a mainstream primary school and had an EHC Plan finalised in May 2024. During the year, Y was missing school one to two days a week.
23. The following is a summary of the main events relevant to the complaint.
24. In March 2025 the Council arranged an early annual review at Ms X’s request. Ms X wanted Y to attend an alternative provision on a part time basis. She did not consider the school was meeting Y’s needs and said Y was not attending school full time.
25. As part of the review an Educational Psychologist (EP) visited Y at school and recommended some ways forward to continue to support Y. The EP noted:
• despite Y’s diagnosis of autism Y appeared to be socially well-integrated at school.
• Y had no difficulty relating to the EP, their peers or teacher and Y’s sensory sensitivities seemed to be effectively managed at school.
• Y was making good progress but there was more to be done especially in relation to maths.
• Y worried disproportionately about certain issues.
26. The EP said Y would continue to benefit from ‘Quality First Teaching’ with some additional teaching assistance about managing and understanding their emotions. They noted the school’s emotional literacy support assistant (ELSA) was likely to be well positioned to provide this support.
27. The annual review noted Y’s attendance was 73% which was in line with the previous year. Y missed one or two days a week at school due to autistic meltdowns or chronic pain. The review noted Y had met the outcomes from their EHC Plan. Y was performing at a year below their age but had made a year’s progress. It noted ‘the relationship with mum has completely broken down and the school feel unable to meet with her’. It noted a change of setting was requested and Ms X had requested two days a week at an alternative provision provider. It noted the school felt Y’s ‘needs could be met through quality first teaching with reasonable adjustments and ELSA support’. The review recommended amendments to Y’s EHC Plan. I have seen no evidence the Council issued an amendment notice following the annual review.
28. In late April 2025 Ms X told the Council Y would not be returning to the school. She reported that other pupils had been hitting Y and she did not consider the school could safeguard Y. She requested alternative provision be arranged.
29. The Council’s decision making group considered Ms X’s request for alternative provision in May 2025 but declined it as it considered Y’s needs could be met in their mainstream school.
30. Ms X contacted the Council again in early June as she had not received a reply to her request for alternative provision. The Council responded that the EHC Team were looking to seek suitable provision for Y and in the meantime they would request tutoring. Y remained on the school’s roll. The Council sent out consultations to seven primary schools.
31. Ms X complained to the Council about the lack of education provision.
32. In late June 2025 the Council’s Head of SEND met with the headteacher and SENCO at Y’s school. They emailed Ms X following the meeting. They said:
• The school’s professional view was that it could support Y’s needs. Ms X disagreed and the Council accepted the relationship had broken down which did not support a longer term prospect of Y returning to the school.
• The Council had consulted schools but had not yet received an offer. It was following these up.
• It had consulted Children’s Services professionals who considered Y did not meet the criteria for section 19 provision. A suitable placement including appropriate support was available at Y’s mainstream school and when there, Y engaged appropriately.
• The school remained responsible for Y’s provision until the Council issued a new EHC Plan naming a different school. The Council requested the school put tuition in place until the end of term as Y was unlikely to return there.
33. The school did not arrange tuition for Y.
34. As Ms X had not received a complaint response within 14 days she asked to go to the next stage of the complaints procedure and also complained about poor communication.
35. In mid July 2025 the Council responded at stage one of its complaints procedure. It did not uphold Ms X’s complaint. It considered a place remained available for Y at their mainstream school and when they attended Y engaged positively and actively in learning. Until another placement was named the school remained responsible for Y’s education. It said it would continue to look for an alternative school.
36. It then responded at the next stage of its complaints procedure in late July 2025. It apologised for the late stage one response. It explained it had introduced a new complaints tracking system to improve timeliness. It remained of the view Y’s needs could be met by the school and they did not qualify for alternative provision. It apologised for the lack of consistent and timely communication which it said was due to staff shortages. It said it had a new case management system and a permanent team of staff which should lead to improvements. It said a new case worker took over in late June who had already contacted Ms X.
37. In August 2025 Ms X sent the Council a letter from a paediatric consultant who referred to Y needing a specialist setting and being physically and mentally unwell. She requested an alternative provider for three days a week with two days of tutoring.
38. The Council wrote to Ms X in early September that it had not agreed alternative provision and said it would be finalising Y’s plan and naming a mainstream school. It said it would refer Y to its hospital and outreach education service to support their transition and it did not agree with the consultant’s view that Y needed a specialist school. It issued an amendment notice to Ms X.
39. In mid September 2025 the Council issued Y’s final amended EHC Plan which named a type of school as a mainstream school. It said it would also refer Y to its hospital and outreach education service. It said it believed Y’s needs could be met in a mainstream school with short to medium term support from the hospital outreach service. In October it named a specific mainstream school in the EHC Plan.
40. Ms X told the Council Y would not attend the new school as they could not attend a mainstream school. Ms X appealed the EHC Plan to the Tribunal about the special educational provision in section F and the school named in section I.
41. In November 2025 the Council agreed to complete a new assessment of Y. It advised Ms X that it could not take the consultant’s letter of August 2025 as placement advice as it was not within that consultant’s area of expertise but said they had asked the consultant for medical evidence to support the referral to the Hospital and Outreach Education Service.

Findings

42. The Council arranged an early annual review of Y’s EHC plan in March 2025. It did not issue a decision within four weeks of the review. This was fault. It consulted a number of schools but did not issue a final amended EHC plan until September 2025. This was around four months later than it should have, had it issued an amendment notice after the March review. This delay was fault which caused Ms X frustration and delayed her right of appeal to the Tribunal.
43. The Plan named an alternative mainstream school. Ms X disagreed with the school named in Y’s Plan. She had a right of appeal to the SEND Tribunal over the school named in the Plan and used that right. Whether the school named in the Plan was a suitable school which Y could attend is a decision for the Tribunal. As I have explained above, we cannot investigate a decision where it has been appealed to tribunal and cannot consider the consequences of that decision. Y’s absence from school from the point of appeal, and their lack of education, is not separable from Ms X’s appeal. This means I cannot look at the Council’s decision to name the mainstream primary school in the Plan or whether Y should have been provided with alternative provision during the appeal period.
44. However, I can consider what happened from when Y stopped attending school in April 2025 until the Council issued the final EHC Plan in September 2025.
45. Y stopped attending school in April 2025. Ms X contacted the Council to request alternative provision. It was for the Council to decide whether there was a suitable and accessible education on offer for Y. At that time, it was satisfied there was a school place that was available Y could attend. There was no evidence of fault in the way the Council reached that decision. That school place could also deliver the special education provision set out in Y’s Plan so I cannot criticise the Council for Y not receiving their SEN provision. However, the Council delayed advising Ms X of this and that delay was fault which caused her frustration.
46. The Council’s Head of SEN later met with the school. They considered the school’s views, the view of the EP who visited Y at school and professionals within Children’s Services and considered Y did not meet the criteria for alternative provision. They did acknowledge the relationship with school had broken down and requested the school arrange tutoring for Y. This tutoring did not happen. However, the Council had decided it did not owe a section 19 provision and so it was for the school to arrange tutoring. The school’s failure to do this, at that time, was not Council fault and we cannot investigate internal school matters.
47. There were delays in communicating with Ms X and in responding to her complaint. These delays were fault which caused Ms X frustration. The Council acknowledged this fault in its complaint response and explained the action it has taken to prevent a recurrence of such faults in future. I have not recommended any further service improvements.

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Agreed Action

48. Within one month of the final decision the Council has agreed to apologise to Ms X and pay her £200 to acknowledge the frustration caused by its poor communication, delay in responding to her complaint and the delayed right of appeal to the Tribunal. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman