Summary: The Council was at fault for failing to properly consider if it needed to arrange alternative education for Mr X’s child, W, when they struggled to attend school. This caused Mr X avoidable uncertainty about whether, had the Council not been at fault, it would have arranged education for W. To remedy Mr X’s injustice, the Council will apologise and make a symbolic payment. The Council will also take action to prevent fault in future.

The complaint

1. Mr X complained the Council placed his child, W, in an unsuitable school (school A), which had said it could not meet W’s needs. Mr X said that as a result, W’s attendance declined. Mr X said that when this happened, the Council failed to ensure W still received a suitable education and the special educational provision in their Education, Health and Care (EHC) Plan. Mr X also complained about the school’s actions with regards to an alleged attack on W on school grounds. Mr X said these matters traumatised W.

Back to top

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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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.
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).

Back to top

How I considered this complaint

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

Back to top

What I found

Law and guidance

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 SEND Tribunal or the council can do this. 
9. The sections include: 

• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of educational placement 

10. Councils have 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).
11. 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 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) 
12. 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.

Alternative provision

13. 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.
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.

What happened

16. In February 2023, the Council issued an EHC Plan for W which named school A from September 2023. Mr X was initially happy with the decision to name school A. The provision in the Plan included:
• Use of strategies designed by a Speech and Language Therapist (SALT) for a minimum of 20 minutes per day;
• Help building relationships with peers;
• Individual support to help W access learning;
• Strategies to help W learn new routines, adapt to change and manage their emotions;
• Help with dressing, going to lunch and using the toilet; and
• Close monitoring to keep W and pupils around them safe.
17. Mr X says W began struggling to access school from the beginning of their time attending.
18. In early July 2024, school A held an annual review meeting on the Council’s behalf. The meeting heard W was only attending school for three mornings per week and that W’s needs had changed significantly, and school A felt it could not meet their new needs. School A recommended the Council make amendments to W’s EHC Plan.
19. The Council says it decided to maintain W’s EHC Plan unchanged because school A had not provided evidence to support the suggested amendments. It did not issue a decision to maintain W’s Plan.
20. In November, school A resubmitted the annual review documents with the addition of SALT report.
21. In mid-January 2025, Mr X decided W should not go to school at all, as he felt doing so was distressing for them. They did not return for the rest of the school year.
22. A day later, the Council issued a decision to amend W’s EHC Plan.
23. In May, Mr X complained to the Council. The Council responded later than month and said that if W was not able to go to school, it was the school’s responsibility to arrange alternative provision. It noted school A had since arranged provision, which the Council had funded until the end of the summer term.
24. The Council issued W’s amended EHC Plan in July 2025. It named a different alternative provision in section I and different special educational provision. The new provision included:
• Staff training from a SALT, as needed;
• For W to be supported by a higher ratio of staff than normal;
• A small team of key staff to help W when they became emotionally dysregulated; and
• An intervention designed to help W develop their fine motor skills, for ten minutes per day.
25. Mr X appealed the Plan because he wanted W to attend a different placement.

Findings

Period under investigation

26. 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)
27. Mr X did not complain to the Ombudsman until November 2025, but his complaint related to matters back to September 2023. This means the period before November 2024 is late. I have seen no good reason why Mr X could not have complained sooner, so I will not investigate the entire period he has complained about. My investigation into W’s alternative provision and special educational provision covers the period September 2024 to May 2025. This is the part of the 2024/2025 school year when W was without any alternative provision.
28. With regards the W’s annual review, I have investigated from July 2024 because that is when the annual review began and it would not be possible to come to a sound decision without considering that period.

Alternative provision and special educational provision

29. The Council aware W was not attending school A full-time following the July 2024 annual review meeting. There is no evidence it considered whether W was receiving a suitable full-time education, and therefore, whether it needed to arrange alternative provision until May 2025, when it responded to Mr X’s complaint. This was fault. The fault occurred because the Council wrongly believed it was the school’s responsibility to arrange alternative provision. That is not the case; the duty set out in section 19 of the Education Act 1996 applies to councils, not schools.
30. I cannot say, even on balance of probabilities, that had the Council considered whether it owed W the duty to arrange alternative provision, it would have done so or if it accepted the duty, when it would have done so. That is because it is for a council to decide whether, based on their judgement, a child is out of education for health or other reasons. School A said it could not meet W’s needs, which was why they were not attending full time. However, the Council may have concluded it could meet W’s needs, if the school put different or additional support in place. In that case, the duty to arrange alternative provision would not apply. The fault therefore caused Mr X avoidable uncertainty about whether or not the Council would have agreed alternative provision for W.
31. The Council owes W the duty to secure the special educational provision in their EHC Plan. However, W was not receiving the full provision because they were not in school-full time, or at all from January 2025. If the Council had arranged alternative provision, we would have expected it to deliver as much of W’s special educational provision as possible. Because I cannot say the Council would have arranged alternative provision, I cannot say W missed out on special educational provision they should have had.

Annual review

32. The Council was at fault for delay completing the annual review of W’s EHC Plan. It held the annual review meeting in July 2024 so the Council should have completed the review by issuing its decision to amend W’s EHC Plan by August 2024. It should then have issued W’s amended EHC Plan by late September 2024. Instead, it issued its decision to amend W’s EHC Plan in January 2025 and the final Plan by late July, almost ten months late.
33. Part of the delay appears to have been because the Council decided to informally ‘maintain’ W’s EHC Plan between July and November 2024, while school A provided more evidence about W’s new needs. This is not a valid reason to delay an annual review. The new information the school sent in November 2024 was a SALT report. If the Council felt SALT advice was necessary following receipt of the July 2024 annual review meeting records, it should have sought that advice promptly or ensured the school did so. This would have allowed the Council to make its decision to amend or maintain W’s EHC Plan within 12 weeks of the meeting.
34. Had the Council not delayed carrying out the annual review and amending W’s EHC Plan, W would have received the additional provision in the July 2025 EHC Plan by late September. This means that between late September 2024 and January 2025, W missed out on that provision while they were in school three mornings per week.

What I have not investigated

35. I cannot investigate Mr X’s complaint about the school’s actions in relation to an alleged attack on W. This is because we cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the child or young person’s EHC Plan (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended).
36. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
37. I will not investigate Mr X’s complaint about the Council’s decision to name school A in W’s February 2023 EHC Plan. Mr X was initially happy with the Council’s decision. However, in July 2025, Mr X found out that when the Council was deciding whether to name school A in the February 2023 EHC Plan, it consulted with the school, which said it could not meet W’s needs. Mr X feels the Council should not have named school A in the Plan.
38. I will not investigate this matter because only a council and the SEND Tribunal can make decisions about what school should be named in a child or young person’s EHC Plan. I could not say that the Council’s decision was wrong, so investigation could not result in the outcome Mr X wants.

Back to top

Action

39. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mr X for the frustration he felt because of the Council’s failure to properly consider whether to arrange alternative provision for W. 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.
2. Pay Mr X £500 to recognise that injustice.
3. Pay Mr X £300 to recognise the impact of the lost special educational provision on W.
4. Clarify with staff that the responsibility for arranging alternative provision under section 19 of the Education Act 1996 lies with councils, not schools. Therefore, when the Council becomes aware a child is not attending school full-time, it must consider if the duty to arrange alternative provision applies. The Council may then ask the child’s school to arrange that provision, but the duty remains the Council’s.
40. Within three months of the date of my final decision, the Council will review the systems it has in place to ensure it seeks information needed for a child’s annual review promptly, to allow it to complete the review and any amendments to the child’s EHC Plan within the 12-week timescale. The Council will consider what steps it needs to take and tell the Ombudsman when it will complete them by.
41. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

42. I find fault causing injustice. The Council has agreed actions to remedy that injustice and prevent fault in future.

Back to top

Investigator's decision on behalf of the Ombudsman