Summary: Mr B complained that the Council in respect of his son C, failed to complete the annual review process and issue an amended final Education, Health and Care (EHC) Plan with a right of appeal. It also failed to consider its section 19 duty when C was not attending school. We have found fault in the actions of the Council. The Council has agreed to issue an EHC Plan, apologise to Mr B and C, and make a symbolic payment to them.

The complaint

1. Mr B complained that Milton Keynes Council (the Council) in respect of his son, C, failed to:
• complete the Annual Review process and issue an amended Education, Health and Care (EHC) Plan;
• consider whether section 19 of the Education Act was engaged between September 2024 and July 2025 when it was made aware that C was struggling to attend school;
• misadvised Mr B that he had a right of appeal against the Specialist Placement Admission Panel decision that mainstream education was appropriate; and,
• failed to provide any reasons as to why mainstream education was appropriate, given the view of the school, Mr B and some medical professionals that a specialist placement may be more suitable.
2. Mr B says C has missed out on significant amounts of education and the family has been caused significant distress and frustration.

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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. 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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How I considered this complaint

5. I considered evidence provided by the Council and Mr B as well as relevant law, policy and guidance.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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 found

Special educational needs

8. 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. 

Reviewing EHC Plans

9. 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. Following the review meeting the council must issue a decision to either 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) 
10. Where the council proposes to amend an EHC Plan, 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.

Section 19 duty

11. Section 19 of the Education Act 1996 says that the council 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

12. 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.
13. 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.
14. 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

15. 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

16. Mr B’s son, C has autistic spectrum disorder. His last EHC Plan was issued on 8 April 2024 naming his current mainstream provision (the School).
17. In early September 2024 Mr B contacted the Council about C not wanting to attend the School. The Council advised Mr B to meet with the School’s SEN officer and C’s teacher to discuss the difficulties.
18. The School contacted the Council on 18 September to say C had only attended three out 11 days so far that term. By 26 September he had stopped attending at all. In October C received an additional diagnosis of ADHD. In early October the School informed the Council of the measures it had put in place to assist C. It said C had not had attendance issues previously and it was unsure of the cause of the difficulties now.
19. On 11 October the School agreed a part-time timetable with Mr and Mrs B for C to attend for the mornings only and to review the situation after half-term. Emails from the School in November 2024 indicate that the part-time timetable was in place and C was coping well.
20. By early December C’s attendance had deteriorated again and on 9 December Mr B contacted the Council to explain the situation was really difficult and C was getting very distressed about attending school. They could not consider home schooling due to work commitments, and they could not afford taxis to transport him to accommodate the part-time timetable. He sent a second email on 16 December as he had received no reply. He suggested trying an alternative school or help with the home-schooling option. C’s SEN caseworker (Officer Z) said she had been meeting with the School and C went in on the odd day. She suggested arranging a meeting with the School to discuss the next steps.
21. Mr B responded saying he had had over 10 meetings with the School and nothing was working. C was getting more and more distressed about attending. He would sometimes go in on a Friday because it was the weekend the next day. Mr B suggested another alternative placement. Mr B also provided details of the medical options they had pursued (GP, paediatrician, CAMHS and virtual counselling) but they were either unsuitable or involved long waits for appointments and treatment.
22. Mr B met with the School on 18 December, and it agreed that the current situation was not sustainable. It mentioned an alternative placement it worked with but said a referral was needed to apply for this. In terms of an alternative school the Council needed to initiate this, and the School was happy to meet with the Council in this regard. Mr B said C was going to try an AI robot to allow him to attend lessons remotely.
23. Officer Z agreed to ask the School to review C’s EHC Plan after Christmas and then his case could be forwarded to the specialist placement admission panel (the Panel). She also said the School could make a referral to the dual support placement already mentioned by the School.
24. Mr B contacted the Council in mid-January 2025 to say that C was still struggling to attend school and again asking for help. Officer Z replied saying that she was attending a meeting with the School on 13 February, prior to the Annual Review in March 2025.
25. On 12 March the School requested medical evidence to support C’s absence. Mr B replied saying C was absent due to anxiety not illness and the situation was getting worse. They were waiting for appointments with both CAMHS and the paediatrician. Mr B requested transport to school from home and again asked about the possibility of the AI robot from home.
26. On 31 March the School discussed with the Council C’s health situation and detailed the adjustments it had made at school to assist C. The note of the Council’s conclusion recommended that Officer Z continued to work with the School and if any advice from a health professional came out of the annual review it would review the position. But it said there was no evidence to suggest there was a health reason for non-attendance.
27. The Annual Review was held on 2 April. The record of the review acknowledged that C had severe anxiety about attending school which was getting worse. He had been trying to attend for two days but the previous week he had not attended at all. His attendance so far that year was 25%. The School recognised it may not be able to meet C’s needs and he may need a specialist placement. Mr B said C had a paediatrician appointment in May and he would approach his GP and CAMHS for a letter confirming his difficulties attending school. The meeting discussed putting his case forward to the Panel on 25 April or perhaps waiting to receive more medical reports. The alternative placement via the School was again discussed and another part-time timetable was agreed.
28. On 1 May the Council considered section 19 provision. It said the School had made flexible adjustments to assist C, but there was no wider health professional involvement to advise that C was not able to attend school or that adjustments could not be made. It said it was satisfied that the school’s flexible approach was meeting need and enabling C to access education suitable to his needs, so it did not consider section 19 had been triggered. It said that if further health information became available the School should make a further referral for section 19 provision.
29. The Panel met on 3 June and noted that C had attended school for a limited amount of time and Officer Z was working with the School on emotional-based school avoidance strategies.
30. The Panel met again on 8 July and said the same as it had the previous month. It decided that C should remain at his current setting and mainstream provision remained appropriate. It would not consider the case again.
31. On 16 July the Council notified Mr B that the Panel had not agreed to a specialist placement but did not give any reasons. The School questioned the decision given the evidence it had provided that it was struggling to meet C’s needs.
32. On 22 July Mr B complained to the SEND Tribunal on the advice of a third party. He said the Council had refused to carry out an assessment.
33. On 24 July he complained to the Council. He also received a decision from the Council refusing to provide transport to enable to attend the School for mornings only. The decision said there was no physical reason why C could not use the bus with his peers and he should be making use of his bus pass. Mr B appealed this decision.
34. Mr B added to his complaint on 31 July saying that C was not attending school at all, his attendance over the previous nine months was 20% and he was refusing to attend school for the rest of the time. Mr B requested alternative provision under section 19 saying C needed 1:1 tuition. He could not continue with the part-time timetable due to the inflexibility of the transport arrangements.
35. On 1 August the Council notified Mr B by letter of the decision of the Panel to refuse specialist provision. The letter said Mr B had a right of appeal to the SEND Tribunal against this decision.
36. On 2 August the Council responded to Mr B’s complaint:
• It apologised for delays in communication and lack of clarity.
• Two senior managers had reviewed the file and apologise if the response to the case had felt disjointed at times.
• It would arrange a meeting to find a way forward.
• It was seeking clarity on the decision of the Panel as the decision did not provide sufficient detail.
• It enclosed the formal Panel outcome letter of 8 July and apologised for not sharing this sooner.
• It acknowledged that an appeal had been submitted.
37. Mr B escalated his complaint to stage two of the complaints procedure.
38. On 14 August the Council issued a draft EHC Plan, still naming the School in Section I.
39. On 3 September the Council responded to Mr B’s stage two complaint. It said the Panel considered the current mainstream placement was suitable. The School had demonstrated a strong ability to meet needs similar to C’s and evidence indicated that when C attended he engaged well. Specialist headteachers had said more input was required from the Educational Psychologist and mental health services before a specialist placement could be considered. But the case would be placed back on the agenda for future meetings. Officer Z was going to arrange a multi-agency meeting and for the EHC Plan to be updated and finalised.
40. In terms of C’s education, it said it was working with the School to extend C’s attendance, and a structured timetable would be developed over the next six weeks to support this. The Council did not agree to any alternative package of education as it believed with further assessment, adaptations to teaching and collaborative support that C could make progress in his current placement. It repeated that Mr B could appeal to the Tribunal against the Panel’s decision and/or complain to us.
41. Mr B responded the same day saying he struggled to understand how the School could be suitable when C was not attending and the School had said it could not meet his needs. Mr B could not fund taxis any more to fit the reduced timetable and transport had been refused.
42. Mr B complained to us in September 2025
43. The Council upheld the transport decision in September 2025 saying that C’s problems were more to do with non-attendance than transport.
44. On 30 October the Council again considered section 19 provision and noted C was finding it difficult to engage with the education offered by the School despite the various adjustments that had been made. It said a specialist teacher would be allocated to work with the School to look into a package of support which would be suitable for C.
45. By February 2026 C was attending school one day a week, receiving five hours of tuition and two sessions of online tuition.
46. The Tribunal struck out Mr B’s appeal on 30 April 2026. It said it had been wrongly registered as there was no appealable decision because the final EHC Plan had never been issued.
47. In response to my enquiries the Council said its processes for considering the section 19 duty has changed significantly since the events of this complaint. The Council now works more closely with the school attendance service to track student attendance so that the SE N service is immediately notified if a child with an EHC Plan is not attending school. The Council has also said it has changed its practice in terms of the notifying people about appeal rights and that these only arise when a final plan is issued not when a decision of the Panel is made.

Findings

Alternative provision

48. The section 19 duty places the responsibility for provision of education when a child is absent from school due to exclusion, illness or other reasons, on the Council. The Council is the decision-maker and once it is aware that a child is absent from school for an extended period, it should consider whether its duty is engaged.
49. The Council was first aware in that C was not attending School in September 2024. It directed Mr B in the first instance to the School to consider what adjustments it could make. The School implemented various strategies including mentoring and a reduced timetable which initially appeared to be working. I do not find the Council at fault during this period as it was allowing the School some time to try different approaches, which were showing some success.
50. However, by early December 2024 it was clear that C was not attending School very much. Officer Z responded positively to Mr B’s approach stating that a review would be arranged in the New Year. But the review did not take place until 2 April with only one meeting with the School (on 13 February) in the intervening period. There was no official reduced timetable in place and no intervention by the Council, despite Mr B requesting support and mentioning the possibility of an AI robot on two occasions. This was fault.
51. I consider the review of the EHC Plan including the placement should have taken place in January 2025 and a clear plan developed for C’s education. While there was not an unbroken absence of more than 15 days, he was only attending at best on some Mondays and/or Fridays. There is no evidence the Council considered its section 19 duty until 31 March 2025.
52. When the Council did consider the duty, it only considered the possibility of absence due to illness. As it did not have any clear medical evidence stating that C was unable to attend school it did not consider its duty was engaged. However, there is no evidence that the Council considered whether C’s absence was due to ‘other reasons’ and whether the education on offer was suitable and accessible given that C was only attending for approximately 25% of the time, there was no reintegration plan in place, and the School said it could not meet his needs. This was fault as the Council did not properly consider the extent of its section 19 duty and whether it applied in cases where a child was not attending school due to severe anxiety and awaiting further medical evidence and appointments.
53. The Council does not have to wait for medical evidence before deciding that the section 19 duty is engaged. It has to consider all the available evidence from all sources and reach its own decision based on that evidence. There is no evidence the Council considered whether the low attendance was all that C could manage or whether additional tuition would have been appropriate. It just continued to rely on the School putting in strategies to help. While this was appropriate initially it should not have carried on for nearly a year before alternative provision was considered. This was fault which caused uncertainty to Mr B and missed education to C.
54. I note by early 2026 C was engaging with five hours of additional tuition, two online tuition sessions and a day at school. This indicates he could have engaged with more education between December 2024 and September 2025.

Review of EHC Plan

55. Following the Annual Review the Council should have notified Mr B within four weeks (by 30 April 2025) whether it intended to amend the EHC Plan and sent him a copy of the amended Plan. It did not issue a draft EHC Plan until 14 August 2025, 3.5 months late. This was fault which meant C missed out on appropriate special educational support for at least a term.
56. The Council has still not issued a final EHC Plan. This is fault. The delay has in part been caused by the erroneous appeal lodged by Mr B on the advice of a third party. But the error was compounded by the Council’s letter of 1 August 2025 confirming the Panel’s refusal not to name a specialist placement and incorrectly saying Mr B had a right of appeal against it. This was fault and indicates the Council has potentially been giving incorrect advice about appeal rights to other people.
57. It then took the Tribunal eight months to confirm that the appeal was invalid as there was no appealable decision.
58. If the Council had focussed on issuing the draft EHC plan within the statutory timeframe, it could have consulted the Panel on a placement before issuing the final EHC Plan with the correct right of appeal. Mr B would then have had the opportunity to challenge the Council’s decision on a specialist placement in the proper manner. Instead, he and C have been left in a state of limbo with no alternative provision and no finalised EHC Plan.

Specialist placement

59. The decision on the placement in an EHC Plan is a matter for the Tribunal. For the reasons given above Mr B has been unable to pursue an appeal on that issue. However, I note the Panel’s decision given in July 2025 to Mr B had no reasoning for the decision that mainstream was appropriate. This was not provided until 3 September 2025 when the Council responded to the complaint This was fault as Mr B was left with uncertainty as to why the decision had been made. This uncertainty was also shared by the School who had been clear it could not meet C’s needs.

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Action

60. In recognition of the injustice caused to Mr B and C, I recommended within one month of the date of my final decision that the Council:
• issues a finalised EHC Plan with a right of appeal; and
• apologises to C and Mr B and makes a symbolic payment of £1000 (for two terms of missed provision @£500 per term).
61. As the Council has made changes to its procedures since this complaint was made I have not made any service recommendations.
62. The Council has agreed to the recommendations and should provide us with evidence it has complied with the above actions.

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Decision

63. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman