Summary: Ms X complains the Council has failed to deliver the provision set out in her child, Y’s, EHCP and has failed to make alternative educational provision. We have concluded our investigation having not made a finding of fault. The evidence demonstrates the Council made offers of suitable alternative provision whilst it searched for a permanent placement for Y. Offers proposed by the Council were available and accessible to Y.

The complaint

1. Ms X complains the Council has failed to deliver the provision set out in her child, Y’s EHCP and has failed to make alternative educational provision since October 2022. Ms X complains that as a result, Y has missed out on provision that should have otherwise been delivered.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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(i), as amended)
5. Under an information sharing agreement, we will share our final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I liaised with Ms X and considered the information she provided. I also made enquiries with the Council and considered the information it provided. Ms X and the Council were offered an opportunity to comment on my draft decision and I considered any comments submitted before making a final decision.

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What I found

Relevant guidance and legislation

Special Educational Needs provision

7. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and the arrangements made to meet them.
8. The council must arrange for a review of the EHC Plan at least once a year. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process completes when the council issues a decision about the review. This should happen within four weeks of the review meeting when the Council tells the child’s parent if it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
9. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents of their right to appeal the decision to the SEND tribunal.

Alternative Provision

10. 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.
11. This applies to all children of compulsory school age living in the local council area, whether or not they are on a school roll. (Statutory guidance ‘Alternative Provision’ January 2013)
12. The courts have considered the circumstances when the section 19 duty applies. Caselaw says 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 them 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)
13. Where a council agrees to make alternative education arrangements under Section 19, for reasons other than medical absence or exclusion, guidance says it should do so as soon or as quickly as possible. (Statutory guidance: Alternative Provision – January 2013 and ‘Arranging education for children who cannot attend school because of health needs – December 2023).

What happened

14. I have included a summary of some of the key events in this complaint, this is not intended to be comprehensive account of everything that took place.

September 2022

15. In September 2022, Y was on the roll and attending Provider A, an independent non-maintained specialist school.

October 2022

16. Provider A emailed the CWO with a summary of a meeting with Y and his parents following an incident at the school. They informed the CWO that Y would be on a reduced timetable for the following week, with weekly reviews related to his needs. During the AR meeting, Provider A expressed concerns about meeting Y’s needs after receiving an OT report from CAMHS.
17. Provider A later confirmed that Y and his parents did not wish to continue with their program, although the CWO received an email from the parents indicating a desire to explore options for Y's return. Ms X emailed the CWO regarding unanswered queries, emphasizing their continued interest in Provider A's on-site attendance. Provider A reiterated their inability to meet Y’s needs while awaiting social care referral outcomes and offered Provider A as an alternative.
18. The school called to discuss the situation, noting Y's refusal to engage in education and his dislike for animal-related activities, including Provider B. Lastly, an email was sent from the school to CAMHS confirming that Y is on the waiting list for but will not be seen soon due to backlog issues.

November 2022:

19. An email from CAMHS Lead to Ms X and Provider A reviewed the type of school needed. Ms X requested on-site provision from Provider A, and the CWO confirmed the offer of Provider A due to safety and mental health concerns while seeking CAMHS's input. Following the receipt of AR papers, Ms X expressed dissatisfaction with the Provider A offer, leading to a referral to the next SEN case review.
20. During the case review on in early November 2022, Provider A proposed a virtual package. However, Provider A later withdrew this offer, requiring a new placement for Y. The CWO suggested Provider B as interim provision and contacted HSEND regarding the notice period for Provider A's termination.
21. By the case review in early-November 2022, it was confirmed that Provider A had terminated the placement, prompting HSEND to search for a new placement. The CWO communicated these outcomes to the parents and Provider A, and an interim education offer was made to the parents while the contract with Provider A was formally terminated.

December 2022:

22. HSEND confirmed that Provider C could not meet Y's needs. Provider D notified that Y and his parents were visiting, requesting further mental health information. Provider D later reported that Y and his parents did not attend the scheduled visit, and it was rescheduled for another date.
23. In mid-December, Ms X confirmed their visit to Provider D and expressed interest in securing a place for Y. The CWO explained the process, indicating that if an offer was made, it would go to the SEN case review for a decision; otherwise, the search for a placement would continue.

January 2023

24. In early January, an update was sent to parents, along with a request for feedback from HSEND regarding Provider D. A few days later, the CWO contacted Provider B about a potential placement but received no response. The CWO noted parental dissatisfaction about communication and their interest in Provider B.
25. The CWO then shared Y's EHC Plan and reports with Provider B to evaluate their ability to meet his needs.
26. In mid-January, an email update confirmed Provider B's willingness to welcome a visit. Provider B indicated they could offer one afternoon but wanted Y to visit first. The CWO checked if the family wanted to contact the farm directly or needed assistance.
27. A few days later, the parent confirmed their visit to Provider B. The CWO followed up with Provider B for updates and notified HSEND about Provider D's lack of communication. Later, a 2-hour taster session for Y was confirmed at Provider B. Afterward, the CWO requested feedback and costings for the case review panel. The parents mentioned a trial day at Provider D in March, and another weekly update was sent. Ms X then requested that the CWO call Provider B for further discussions.

February 2023:

28. Provider B offered one afternoon session. The CWO responded to Ms X, confirming receipt of the offer and stating it would be referred to the case review.
29. Mid-February brought an update from HSEND indicating there was no current school offer, along with a trial day scheduled at Provider D for early March.
30. In the second week of February, consults were sent to various institutions regarding alternative provisions. A case review meeting determined that Provider B would provide alternative provision for one session per week.
31. Later in February, the case review outcome was shared with Ms X and Provider B before formalising. Provider B confirmed a start date toward the end of February.
32. Following concerns raised during Y's first session at Provider B, it sent an email addressing these issues. Ms X also expressed concerns about the session.

March 2023

33. In early March, Provider E communicated that they could not meet Y's needs for September 2023. Ms X expressed dissatisfaction with the arrangements confirmed for Monday sessions at Provider B. The CWO sent a weekly update reiterating the confirmed arrangements at the farm and provided information regarding the commissioning team's ongoing search for interim education.
34. A few days later, the parents reached out again, expressing their views and considering a formal complaint. Additional emails followed, as the parents remained unhappy with the farm's arrangements.
35. in mid-March, Provider B responded to the parent's email and issued a formal apology regarding the family's complaints. The CWO continued to communicate with the parents, addressing their concerns and keeping them informed of the ongoing situation, including updates from HSEND indicating no current offers available.

April 2023

36. In early April, consultations were initiated with Provider F for September 2023. An email was sent to Provider G seeking a response.
37. The weekly update was sent to parents, addressing their previous email and clarifying that updates would resume in mid-April.
38. In mid-April, an email update was provided to parents, along with HSEND updates and a request for consent to contact the CAMHS Lead Professional. The Communication Strategy was reviewed, and it was agreed to maintain it until the next review in August 2023.

May 2023

39. In early-May, a consultation was sent to Provider H regarding Year 11 and Year 12 provision.
40. A few days later, the CWO met with HSEND to discuss ongoing consultations and confirmed that consent from Y and his parents was still pending to contact CAMHS for additional information to support the placement search.
41. In the following week, the parents emailed expressing dissatisfaction, reiterating their refusal to provide consent for contacting CAMHS while requesting input from the Educational Psychologist (EP). The CWO responded with a weekly update, interim education offers, and details about personal budgets, again asking for CAMHS consent for the third consecutive week.
42. In mid-May, the CWO sent a consent form to the parents for the EP consultation and offered to meet them as requested. Another attempt was made to obtain CAMHS consent.
43. Later in May, the parents submitted the signed consent form for the EP but still had not granted clear consent for CAMHS. At the end of the month, the CWO sent another weekly update to the parents, again requesting CAMHS consent and offering a meeting date.

June 2023

44. In early June, the parents requested an emergency Annual Review instead of the meeting they had initially requested.
45. By mid-June, the CWO received an email from the parents requesting a reassessment. Later that day, the CWM confirmed that the reassessment had been authorized by the SEN Panel.
46. The SEN Panel outcome confirmed agreement to a full reassessment. An internal note indicated that the current CWO would carry through to finalizing the reassessment and then hand it over to the Post 16 Team as Y would be of Year 12 age within 20 weeks, while the Commissioning Team would continue the search for a suitable setting.
47. The CWO made another request for consent to contact CAMHS nothing that all health professionals contacted so far had no further information to add or contribute.

July 2023

48. In early-July, HSEND provided an update indicating that no schools had been identified.
49. The weekly update for the following week confirmed the offer from Provider I for a Year 12 Post 16 placement in September 2023. In response, the parents expressed concerns regarding uniform requirements and restrictions on mobile phone usage at the school.
50. In mid-July, an email from HSEND included an Expression of Interest (EOI) offer from Provider I. Provider I were contacted regarding uniform and mobile phone policies, confirming that Post 16 students are required to wear uniforms and are not allowed to have mobile phones.
51. Later in the month, the parents requested information about Provider B, noting that it had offered a weekly session with a preferred worker. The request was referred to the case review for a decision about Provider I and Provider B.

August 2023

52. In early-August, documentation was submitted to the SEN Panel, which included educational psychologist (EP) advice noted as subject to change due to parents contacting the EP regarding some amendments.
53. During the case review in early-August, it was noted that there was an offer from Provider I, but the family expressed a preference for Provider B. The review highlighted that more information was needed regarding what ECF could offer, as it seemed to only provide an afternoon session compared to Provider I’s full-time placement.
54. A few days later, the parent expressed concerns regarding HSEND's search and showed interest in visiting Provider J with Y, which was shared with managers for feedback.
55. By mid-August, Provider J was informed of the parents' request for a visit, and a weekly update was sent. Later in mid-August, the SEN Panel outcome confirmed the EHCP. The panel suggested that while a special setting is appropriate, a smaller mainstream Post 16 setting may also be suitable.
56. The draft amended EHCP was issued to parents and professionals some days later, and Provider B was confirmed to provide one weekly session. Toward the end of the month, Ms X raised concerns about delays in communication, which were due to the weekly communication strategy, and requested responses outside of this framework.

September 2023

57. In early-September, the final EHCP was issued. The CWM emailed Provider J again to follow up on consultations and shared the advice and final EHCP with HSEND.
58. The following day, a meeting occurred with the CWO and HSEND, during which it was agreed that consultations would be sent to various provider’s as the parent choices. A visit to Provider J was booked for mid-September.
59. In mid-September, Ms X reported that they had set up a taster session. Feedback from the visit to Provider J indicated it went well, with the school considering offering Y a Functional Skills course alongside entry-level courses to boost his confidence. They also proposed a trial afternoon.
60. Mount Camphill confirmed it could not meet Y's needs. The weekly update issued toward the end of September highlighted the awaited response from Provider J and addressed the situation with Provider K. An email was also sent to Provider I to confirm a placement was not being pursed.
61. Toward the end of September, discussions took place with the educational psychologist (EP) regarding support for Y's transition under the complex SEMH pathway if he transitioned to Provider J. It was noted that Y was on the GIDS waiting list.

October 2023

62. In early October, the parents emailed to report that they attended an open evening at Provider D. While the experience was as positive as could be expected, they noted that Provider D and Provider J were the only viable options and were attempting to arrange taster sessions for both schools to evaluate how well they suit Y. The parents inquired whether both options could be presented to the panel for consideration, hoping that one of them could start as soon as possible due to Y's prolonged absence from educational provision.
63. Some days later, a telephone call was made to Provider B to discuss Y's attendance. It was confirmed that Y attends weekly, with parents present, resulting in one return journey per week. It was mentioned that while they are exploring placements, the current arrangement is a trial.
64. In mid-October, an update from HSEND noted that Y was unable to attend his visit to Provider J and, as of that time, it had not been rebooked. The completed tour at Provider D went well, and another visit was scheduled for the following week. Provider D expressed confidence in their ability to meet Y's needs but had concerns about peer group dynamics and staffing.
65. Later that month, another weekly update was sent to parents, inquiring whether Ms X would like assistance in following up on the Provider J taster session if it had not yet been booked. It was stated that the case review would proceed once both responses were received.

November 2023

66. In early November, outreach was made to Provider K and Provider L. Contact was also made with Sew Fabulous.
67. A few days later, a response was received from Provider M. It was clarified that their program is designed for young people in Year 8 and above who are keen on sewing, operating in groups of six with sewing teachers rather than SEMH-trained support workers. The oldest group members would be Year 12, and parent attendance is not permitted due to the small group sizes.
68. Later that week, the parents communicated that they were not interested in one-to-one support from Develop Outdoors and inquired about CAMHS and care. Provider K and Provider L offered an invitation to visit, noting that while there are usually 25-30 participants on workdays, they can accommodate individual needs.
69. In mid-November, an update was provided that Y had visited Provider J and they were considering a three-day offer. Discussions followed regarding the specifics of the offer, including requests to see qualifications. Ms X expressed that Y needs to feel comfortable with any one-to-one support before moving forward. They highlighted his heightened sensory issues and various fears but expressed a willingness to try Provider J.
70. A weekly update confirmed the decision to pursue the Provider J plan. Ms X expressed a desire for Provider J as soon as possible while continuing with Provider B transport arrangements.
71. As the month progressed, further clarification was sought regarding costs, leading to an explanation that the fee could no longer be pro-rated due to staffing limitations and uncertainty about Y’s extension of hours. It was also noted that Provider B would need to be managed separately.
72. The case review held agreed to placements at Provider J and Provider B. The local authority agreed to fund the core fee for Provider J.
73. The final arrangements for the transportation costs to Provider B were confirmed, with the Provider J costs submitted for consideration.
74. By the end of the month, a weekly update was sent to parents, including transport application links and further details, with instructions for the school to coordinate with parents regarding the start date.

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Analysis

Alternative Education

75. As per paragraph 10, Councils are obligated to arrange suitable education at school or in alternative settings for pupils who are unable to attend due to exclusion, illness, or other reasons if they would not otherwise receive appropriate education. This duty ensures that pupils have continued access to education when their regular school placement is disrupted.
76. The courts have provided clarification on when a council’s duty under section 19 arises. Case law establishes that a council must provide alternative education under section 19 when no suitable education is available that is “reasonably practicable” for the child to access. The key consideration, often referred to as the “acid test,” is whether the educational provision offered by the council is both “available and accessible” to the child in question.
77. Once a council agrees to make alternative education arrangements under Section 19—except in cases of medical absence or exclusion—guidance states that these arrangements should be made as swiftly as possible to avoid any unnecessary gaps in the child’s education.
78. In this case, the critical issue revolves around whether suitable alternative education was offered once Y’s placement at Provider A was terminated. It is important to recognize that, towards the latter stages of Y’s time at Provider A, they were on a reduced timetable to accommodate their mental health needs. There was also an agreed plan to gradually increase Y’s attendance back to full-time prior to the termination of the placement.
79. After Y’s placement at Provider A was terminated, the Council promptly offered interim educational provisions beginning in November 2022, including tutoring services through Provider 1 and Provider 2, which the Council believed would meet Y’s educational needs as outlined in their EHCP. However, Ms. X stated that these offers were unsuitable as they did not provide the 1:1 or small-group setting required by Y’s EHCP. The Council maintained that these were the only options available at the time and that they aligned with Section F of the EHCP. Despite this, the Council kept these options available throughout the duration of the complaint, ensuring that Y had a standing offer for educational provision. Additionally, in February 2023, the Council arranged for Y to attend Provider B for one afternoon per week, with Y beginning attendance there in September 2023. Following this, Y transitioned to full-time attendance at Provider J in November 2023.
80. These actions demonstrate an effort by the Council to ensure access to education, despite the fact that certain offers were declined. It is important to note that while Y was without formal education for periods during this time, the evidence demonstrates that this was not because of inaction by the Council, but rather the parental decision not to engage with the tutoring and interim provisions proposed by the Council.
81. The Council has maintained that the educational provisions offered through Provider 1 and Provider 2 were sufficient to meet the requirements of Section F in Y’s EHCP and were appropriate alternatives following the termination of Y’s placement at Provider A. The school’s are well known to the Council and it asserts that it has a good understanding of the SEN needs profile they could support from past experiences.
82. Ms X maintained that Y could not access 1:1 support which is why the offers were not suitable by the Council. The Council advised that these offers were the only ones available at the time. Further, Y’s EHCP stated that ‘Y cannot cope with working within a large group and teaching will need to be on a 1:1 or 1:2 basis’. Based on the information provided, I have not seen evidence to suggest that these options were unsuitable or that they were inaccessible to Y. Rather, the gap in Y’s education arose from the parents’ choice not to take up these offers, rather than any failure by the Council to provide appropriate educational alternatives. It is clear the Council continued to make reasonable efforts to fulfil its duty under Section 19 by offering accessible, appropriate options. In light of this, I cannot find grounds to criticize the Council’s actions in providing alternative education for Y during the period in question. On this point, I have not made a finding of fault.

Suitability of placements contacted

83. Ms X asserts the Council wasted time in contacting settings that were otherwise not suitable for Y. The Council’s efforts extended to identifying a range of options, with ongoing discussions with the parents about various suitable provisions.
84. The Council's HSEND Commissioning Team employed a comprehensive and multi-faceted approach to finding appropriate educational placements for Y after their placement at Provider A was terminated. The team used a system to contact a wide range of independent schools. Ms. X contended that the Council wasted time contacting schools that were clearly unsuitable for Y’s needs, but the Council argued that this process was necessary to ensure all possible options were explored. While this system is efficient in reaching many schools, it also contacts some that may not be suitable. However, this is an inherent aspect of the process. In addition to this, the Council also undertook a manual search using specialized SEN search engines and their team's expertise to find appropriate day placements within a reasonable travel distance for Y.
85. The reality is that the number of special schools within close proximity to Brighton is very limited, meaning the search had to extend to schools located up to an hour away. This approach ensured that the Council explored all possible avenues for Y’s placement. The DPS software, though designed to filter by travel distance, sometimes allows consults to reach schools located further afield, but this did not distract from the focus on local and suitable options.
86. Overall, I do not find that the Council wasted any time in its search for placements. There is no indication that the Council focused on contacting schools that were not suitable at the expense of contacting other appropriate placements. Instead, the Council appears to have simultaneously pursued multiple channels to ensure that every potential option was explored, balancing the use of dynamic purchasing with manual searches and interim educational offers. On this point, I have not made a finding of fault.

Delay in communication

87. The evidence from the provided chronology and emails indicates that there was no significant delay or lack of response from the Council in its communications with Y's parents. In response to increasing demands of communicating, the Council took steps to manage this situation by seeking advice from their Customer Feedback team and implementing a structured Communication Strategy.
88. This strategy involved setting up a process where one consolidated email would be sent each week from a single point of contact. This email served to provide updates and address any queries or emails received from Y's parents in the preceding week. Exceptions were made when the CWO believed a quicker response would be in Y’s best interests, ensuring the strategy remained flexible to the Y’s needs. The Casework Manager informed Y’s parents of this arrangement and the strategy was reviewed, where it was agreed to continue with the communication plan until the next review in August, in preparation for Y’s transition to the Post-16 Team.
89. There is no evidence to suggest that this strategy led to any delay in the Council's responses, nor have I seen evidence that it acted as an obstacle to Ms X. The evidence demonstrates that emails were addressed within the structured weekly communication, and Y’s parents continued to raise formal complaints during this time, which were dealt with according to the Council’s complaints policy. However, Ms. X expressed frustration that the communication strategy led to delays in receiving responses and felt it hindered her ability to advocate for Y effectively. The Council maintained that the strategy was necessary to manage the high volume of correspondence efficiently and ensured exceptions were made for urgent matters. On this point, I have not made a finding of fault.

Delayed right of appeal

90. There is no evidence to suggest that Y’s parents experienced any delay in receiving their right of appeal. However, Ms. X argued that the Council’s communication delays created a perception of limited opportunities to engage with the process. In accordance with the statutory process, appeal rights were provided at the time of issuing each of the relevant plans. On this point, I have not made a finding of fault.

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Final decision

91. We have concluded our investigation having not made a finding of fault. The evidence demonstrates the Council made offers of suitable alternative provision whilst it searched for a permanent placement for Y. Offers proposed by the Council were available and accessible to Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman