Summary: The Council failed to provide a suitable alternative education to Mrs X’s child, Y, for one term. This included two weeks of missed Special Educational Needs (SEN) provision. The Council also delayed issuing Y’s final Education, Health and Care (EHC) Plan. The Council has agreed to apologise and make a payment to Mrs X to recognise the impact of the fault.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with a suitable alternative education when they were unable to attend school. She also complained the Council delayed finalising an Education, Health and Care (EHC) Plan for Y. Mrs X says this caused her family severe distress and Y has missed out on a prolonged period of their education. She wants the Council to provide Y with a suitable education.

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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 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)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. 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

Late complaints

7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. Y began attending secondary school in September 2023 and Miss X says issues with their education began shortly after. Miss X did not complain to the Council until May 2025 and the Ombudsman in September 2025. It was open to Mrs X to complain sooner about any lack of education and I have seen no good reasons why she did not. I have investigated matters from September 2024 to September 2025.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council have had an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

The Law

Education, Health and Care (EHC) Plans

11. 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. 
12. 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 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.
13. 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) 

Special Educational Needs Tribunal

14. 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.
15. 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)
16. 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.
17. 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.

Alternative Provision

18. 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.
19. 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.

What happened

20. Y started secondary school in 2023. Y has sensory needs and struggled with severe anxiety in school. In September 2024 Y’s school reviewed the SEN provision it was delivering Y. Y’s provision focused on their sensory needs, wellbeing and social interaction skills. Mrs X and Y said they were happy with the proposed provision, Mrs X noted she remained concerned over Y’s ability to cope in a school environment.
21. A school review of the provision in October 2024 noted that Y was still finding school stressful. Mrs X said she felt Y was at risk of refusing to attend school. In February 2025 Y’s school noted that Y’s attendance and engagement had declined. Y’s school asked the Council to carry out an EHC needs assessment on 16 February 2025. Y’s school said the current measures in place were not enough for Y to cope in school.
22. Mrs X says Y stopped attending school at the end of March 2025. An Educational Psychologist (EP) completed an assessment of Y on 8 May 2025. Their report set out Y’s needs and suggested provision to meet their needs.
23. Mrs X complained to the Council on 21 May 2025. She said the Council had not provided Y with a suitable alternative education or responded to the school’s request for an EHC needs assessment. The Council responded at stage one of its complaint process on 5 June 2025. It said it was aware of Y’s case from previous involvement over Y’s engagement with their education. It said a panel would consider the EHC Plan request in the next week. It said Y’s school had reviewed the EP report and said it could meet Y’s needs and would work with Y to do this. The Council did not address Mrs X’s request for a suitable alternative education for Y.
24. A Council panel agreed to issue an EHC Plan on 10 June 2025 and the Council issued a draft EHC Plan on 16 June 2025. Mrs X escalated her complaint to stage two of the Council’s complaint procedure and the Council responded on 19 June 2025. It said Y’s school was responsible for their alternative provision. The Council said it would contact the school to establish why it hadn’t done this. The Council accepted it was under a duty to ensure the alternative provision was in place and upheld Mrs X’s complaint. Mrs X continued to contact the Council saying she was concerned about Y’s education.
25. The Council issued a stage three complaint response on 7 August 2025. It apologised for the delay finalising Y’s EHC Plan and arranging alternative provision. It said alternative provision was now in place from September 2025 and offered Mrs X £500 to recognise the impact of its failings.
26. The Council issued Y’s final EHCP on 22 September 2025. It named Y’s current school as Y’s provision. Mrs X appealed the EHC Plan to the Tribunal because she felt Y should attend a different school. The Council also put in place alternative provision from September 2025. Mrs X remained unhappy and complained to the Ombudsman.

My findings

EHC Plan delays

27. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Having agreed to assess Y and then issue an EHC Plan the Council should have issued the final EHC Plan within 20 weeks. This was 6 July 2025. The Council issued Y’s EHC Plan on 22 September 2025; a delay of two months. This was fault.
28. The EP completed their assessment of Y by the end of May 2025, and the Council issued a draft EHC Plan in June 2025. On balance, I am satisfied the provision set out in the September 2025 was no different to the provision that would have been in place, had the Council issued the EHC Plan within the statutory timescales. As a result of the delay, Y missed out on around two weeks of SEN provision before the end of the school year in July 2025. The delay also caused Mrs X uncertainty and frustration over what SEN provision Y was entitled to.
29. I have not investigated events from September 2025 for the reasons set out in paragraphs seven and eight. Even if I were to investigate beyond September 2025, I could not investigate Y’s SEN provision or alternative education as this is linked to Mrs X’s appeal to the Tribunal.

Alternative Provision

30. Between September 2024 and March 2025, Y’s school worked with Y to adapt their provision to meet their needs so Y could continue to attend school. There is no evidence to suggest the Council needed to consider its duty to provide a suitable alternative education during this time. The Council was not at fault.
31. Y stopped attending school in March 2025. The Council has failed to confirm when it became aware of this. Given the Council’s previous involvement with Y, I am satisfied the Council owed Y a section 19 duty to provide a suitable alternative education from March 2025. There is no evidence of any alternative education until September 2025. This was fault. As a result, Y missed out on one term of alternative education and Mrs X was caused further uncertainty and frustration.
32. The Council already has an action plan in place to address how it responds to cases of children out of school, following previous investigations from the Ombudsman. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

33. Within one month of the final decision the Council should:
1. Apologise to Mrs X for the impact of Y missing a term of alternative provision, including two weeks SEN provision, and the frustration and uncertainty caused by this and the delay finalising Y’s EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss. Y missed one term of alternative provision, which included two weeks of SEN provision. The Council should pay Mrs X £1200 to recognise the impact of the lost provision on Y. This amount includes the £500 already offered to Mrs X. The Council should adjust the payment accordingly if Mrs X has already accepted this offer.
3. Pay Mrs X £200 to recognise the uncertainty and frustration caused by its two-month delay finalising Y’s EHC Plan.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman