Summary: The Council was at fault in how it decided what alternative provision to arrange for Miss X’s child, W, when they stopped attending school. This meant they missed out on education and the special educational provision in their Education, Health and Care Plan. It also caused Miss X avoidable upset and uncertainty. To remedy Miss X and W’s injustice, the Council will apologise to Miss X and pay her a total of £2,000. It should also identify what steps it needs to take to ensure it obtains relevant information on a child’s current education before making a decision on the child’s case.

The complaint

1. Miss X complained the Council failed to provide suitable education or arrange for her child, W, to receive the special educational provision in their Education, Health and Care (EHC) Plan. Miss X also complained:
1. The Council delayed carrying out an emergency annual review of W’s EHC Plan in October 2023;
2. The Council delayed carrying out a recommendation from a previous Ombudsman’s investigation to consider what catch-up educational provision it should arrange for W;
3. The catch-up provision the Council agreed was inadequate;
4. The Council did not obtain updated advice from an educational psychologist on W’s needs;
5. The Council took too long to carry out the annual review of W’s EHC Plan ready for their transfer to secondary school in September 2025;
6. The Council did not tell her it was consulting with schools to see if they could offer W a school place after she asked for them to have Education Otherwise Than At School (EOTAS).
7. The Council wrongly named a mainstream secondary school in W’s EHC Plan for them to attend from September 2025;
8. The Council communicated poorly with her; and
9. W’s school failed to act appropriately to help W after they struggled to attend school.

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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. 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(i), 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

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. Miss X complained to the Ombudsman in January 2025, about matters dating back to September 2023. The period between September 2023 and January 2024 is late because they occurred more than twelve months before Miss X complained to the Ombudsman. However, I have decided to investigate the late period because the matters that occurred in that period were closely linked to those that occurred later and so there are good reasons to investigate them now.
9. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6). The Council issued its final response to Miss X’s complaint in late May 2025. If Miss X is unhappy with events that occurred since May 2025, it is reasonable for her to make a new complaint to the Council. My investigation covers the period between September 2023 and May 2025.
10. The law says we cannot investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter and it was reasonable for them to have used that right of appeal. (Local Government Act 1974, section 26(6)(a), as amended). In addition, 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)
11. I cannot investigate Miss X’s complaint that the Council decided to name the secondary school in W’s January 2025 EHC Plan because she appealed that decision to the SEND Tribunal.
12. I am satisfied that the restrictions in paragraph 10 do not apply to Miss X’s complaint about W’s education and special educational provision so I have investigated that matter between September 2023 and May 2025.
13. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
14. I have not investigated Miss X’s complaint that the Council did not tell it would consult with schools after she asked for EOTAS for W in 2024. The Council can only lawfully name EOTAS in a child’s EHC Plan when it is satisfied the child cannot attend any other school. To come to that decision, the Council needed to ask other schools if they could meet W’s needs. The Council acted appropriately by carrying out the consultations so any failure to tell Miss X about them is unlikely to have caused her a significant personal injustice.
15. I cannot investigate Miss X’s complaint about the school’s actions because we do not have the power to look at how schools provide education to pupils. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

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

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What I found

Relevant law and guidance

Education, Health and Care Plans

18. 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, which include:

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

19. There is a right of appeal to the SEND Tribunal against a range of council decisions including:

• The special educational provision specified in section F;
• The school or placement named in section I or that no school or other placement is specified; and
• A decision not to amend an EHC Plan following an annual review or reassessment.

Education, Health and Care Plan reviews

20. 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. The process is only complete when the council issues its decision to amend, maintain or discontinue 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) 
21. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the Tribunal.
22. 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.
23. If, the council then decides it will not amend a child or young person’s Plan, it must tell the child’s parents or the young person within eight weeks of the date it sent them the amendment notice.
24. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers are: 

• Early years provider to school;  
• Infant school to junior school;  
• Primary school to middle school;  
• Primary school to secondary school; and  
• Middle school to secondary school.  

Alternative provision

25. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as alternative provision.
26. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
27. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
28. We made six recommendations. These included that councils should:

• Keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

29. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

30. This section sets out the key events in this case and is not intended to be a detailed chronology.
31. By September 2023, W was on roll at a mainstream primary school (school A). It was their last year in primary education. Despite being on roll, W had not attended for some time. The Council accepted W needed alternative provision, so school A was using Council funding to commission specialist tuition (from tutor B) for six hours per week. Tutor B taught W while they were on school grounds.
32. At the start of the month, the Ombudsman made a decision on a previous complaint Miss X had made, which related to W’s education up to that point. We concluded the Council was at fault, which meant W missed out on education. We made several recommendations to the Council, which it agreed to. This included that the Council would take the following action within 20 working days of the decision.
• Arrange an emergency annual review.
• Meet with Miss X, either as part of the annual review or separately, to consider if it should arrange catch-up provision for W.
33. Between September and October, W’s attendance at school improved and they attended school most mornings. However, after a short period of ill-health, W struggled to attend. In response, school A reduced the amount of time they were due to come into school for.
34. The Council issued an amended final EHC Plan for W in early November 2023, following on from events before September 2023. It included the following special educational provision:
• Use of strategies to heIp W self-regulate, remember and process information and build up their attendance;
• Access to a teaching assistant throughout the day and check in sessions with them at the start and end of the day;
• 15 minute sessions of one-to-one education on literacy and numeracy every day;
• 20 minute sessions of one-to-one support to help W plan working memory strategies at least twice a week;
• Regular access to a handwriting programme and a laptop to learn to touch-type;
• Regular sessions with a trusted adult to talk about their emotions;
• Participation in a lunchtime ‘friendship group’ with two or three of their peers; and
• Access to a programme with a small group of other children to improve their coordination.
35. School A held the emergency annual review meeting on behalf of the Council a few days later. In the meeting Miss X asked the Council to move W to a specialist school and said she felt W needed an updated educational psychologist assessment.
36. In late December, the Council met with Miss X to discuss the catch-up provision recommended by the Ombudsman. Miss X asked the Council to agree to:
• Take over paying for W to attend an education centre for non-specialist tuition (tutor C) for one hour per week. Miss X had been paying for that provision;
• Increase the hours W had with tutor B;
• Purchase a laptop for W;
• Pay for hydrotherapy, sensory or regulation therapy, horse riding lessons and speech and language therapy (SALT); and
• Pay for play therapy or counselling for one hour per week.
37. In the meeting, Miss X noted W had been able to build up to attending school in the mornings but she felt W would not be able to receive education (in or out of school) full-time for some time, in part because doctors did not know what was causing W to have extreme fatigue.
38. The Council considered what catch-up provision to arrange for W at a meeting in late January 2024. Records of the meeting show the Council:
• Agreed to pay for W’s weekly education centre visits for six months;
• Noted “not agreed” next to Miss X’s request for more tuition;
• Agreed to pay for a laptop; and
• Recorded it would wait for W’s annual review outcome before agreeing to the hydrotherapy, sensory or regulation therapy, horse riding lessons, SALT, play therapy or counselling. It also noted W needed a referral for SALT before it would agree to fund any. The Council noted it should tell Miss X about services available to her as a parent of a disabled child with special educational needs, outside of the EHC Plan process.
39. In early March, the Council told Miss X its decision on what catch up provision W should have. Around the same time, W’s school began paying for them to receive 10 hours of tuition per week.
40. In late March 2024 the Council considered W’s case. It considered:
• That during the spring term, W had refused to go into the classroom for several weeks;
• That since then, W had built up to attending 12 hours per week. They had sessions with tutor B, participated in playtime and then did some work in the classroom, with tutor B’s support; and
• School A wanted funding to cover the cost of the 10 hours W had with tutor B per week, for play therapy and to pay for a one-to-one teaching assistant to help W attend some afternoon classes.
• Whether to arrange the hydrotherapy, sensory or regulation therapy, horse riding lessons and SALT Miss X asked for in December 2023.
41. The Council decided that to secure the provision in W’s EHC Plan, it would increase the funding to school A to cover the cost of tutor B for 10 hours per week, play therapy and one-to-one teaching assistant support in the afternoon. It backdated the amount to the date of the November 2023 annual review meeting and set it to last until July 2024.
42. In early April the Council decided it would not agree to name a specialist school in W’s EHC Plan.
43. In mid-April, W stopped attending school completely. They continued to receive tuition from tutor B, but off school property.
44. The following month, the Council met with school A. The Council told Miss X it had given school A a catalogue of alternative provision providers and the school would identify suitable additional provision and contact her.
45. Miss X says school A shared the Council’s catalogue with her, advised her what funds were available to W until July 2024 and said she should find other alternative provision for W. Miss X was unable to find anything suitable for the remainder of the school year.
46. W’s paediatrician sent a letter to W’s GP in early September, which the Council received a copy of. It stated the paediatrician thought W needed an updated educational psychologist assessment.
47. In mid-September 2024, the Council decided it wanted to know how school A had spent the extra funding it gave for the period between November 2023 and July 2024 before it would agree another increase.
48. School A held an annual review meeting on the Council’s behalf in late October.
49. School A sent the Council a breakdown of what provision was on offer for W in November 2024. That breakdown stated W had received 15 hours of tuition per week since September 2024, plus three hours per week at a day centre for children with special educational needs out of education (provider D), also starting in September. It stated the school was looking to arrange mentoring for W, for one hour per week.
50. In January 2025, the Council decided to increase school A’s funding to cover the 15 hours of tuition, sessions at provider D and mentoring set out in the November provision breakdown.
51. The Council issued an amended EHC Plan for W in mid-January 2025. It continued to name school A until July 2025.
52. In January 2025, W went down to one and a half hours per week at provider D. School A formally amended W’s part-time timetable to reflect that change in February. Miss X says the Council was aware of the reduction in provision.
53. The Council issued a final amended EHC Plan for W on 10 February. It named a mainstream secondary school from September 2025. Miss X appealed the EHC Plan to the SEND Tribunal. She appealed multiple sections of the Plan, including sections F (the special educational provision W needed) and I (the school named for W to attend from September onwards). The only changes to the special educational provision were to:
• Remove reference to where W should sit in the classroom to benefit most from teaching;
• To remove reference to strategies staff should use to break down information for W and help them understand instructions; and
• To add in that W would need help to manage their personal care.
54. In mid-March, the Council told Miss X it had spoken to school A about W’s educational provision. The Council said it had reminded the school it had funding to arrange alternative provision for W.
55. The Council attended a meeting with Miss X and school A in early April. At the meeting, the school shared options for what to do to help W reintegrate back into class, starting the following day. The Council later told Miss X it was satisfied W had a suitable offer of education, given what the school had said at the meeting.

Findings

2023 annual review and educational psychologist assessment

56. To comply with the recommendations of our previous investigation, the Council should have held W’s emergency annual review meeting by early October 2023. It delayed by one month, which in this case, amounts to fault.
57. At the annual review meeting Miss X asked the Council to name a specialist school and said she wanted a new educational psychologist assessment for W. The Council should have considered those requests as part of its decision to amend, maintain or cease W’s EHC Plan. The Council decided it would not agree a specialist school in April 2023, but it failed to issue its decision. This was fault. Without a decision, Miss X did not have the right to appeal to the Tribunal to ask it to name a specialist school or to ask it to direct the Council to seek a new educational psychologist assessment. This caused her avoidable frustration.

2024 annual review and educational psychologist assessment

58. The Council carried out W’s 2024 annual review and issued the mid-January 2025 EHC Plan within the required timescales; 12 weeks from the date of the October 2024 annual review meeting. The Council did not delay so was not at fault.
59. The Council also issued W’s EHC Plan ready for their transfer to secondary school in early February, before the deadline of 15 February. It was not at fault.
60. Miss X is unhappy the Council did not carry out the educational psychologist assessment recommended by W’s paediatrician in September 2024. She has appealed W’s February 2025 EHC Plan to the SEND Tribunal and can, as part of that appeal, ask the Tribunal to direct the Council to obtain the assessment. As set out above, the Ombudsman cannot investigate matters which could be raised at appeal so I cannot consider this matter.

Education and special educational provision

61. We expect councils to keep cases where a child is on part-time timetable under review. This means the council will be ready to meet its duty to arrange suitable alternative provision if needed, either directly or through another organisation like a school. Where a child out of school has an EHC Plan, the council should ensure the alternative provision the child has delivers as much of the special educational provision in their EHC Plan as possible.
62. The Council accepts it owed W the duty to arrange alternative provision. However, there were failings in how the Council met its duty. Initially, it did not keep W’s part-time timetable at school under review between September 2023 and March 2024. This was not in accordance with the expectations set out in the Ombudsman’s focus report and was fault.
63. I cannot say, even on balance, that had the Council acted without fault between September 2023 and March 2024, it would have arranged additional provision for W. That is because between September 2023 and February 2024, W’s needs fluctuated, so while the Council agreed to increase W’s provision in March, it may not have had grounds to do so in the earlier period.
64. It was for the Council to decide what a ‘suitable’ alternative education looked like for W. The Ombudsman cannot question a council’s decision if it is made without fault. For a decision to be made without fault, the council must consider a case fairly, taking into account relevant information. In March 2024, the Council agreed W needed 10 hours of tuition per week plus one-to-one teaching assistant support to attend school in the afternoons and play therapy. There was no fault in how the Council decided what funding increase to approve so I cannot question it.
65. However, the Council agreed funding for that provision backdated to November 2023, the date of the emergency annual review. This suggests the Council held the view that W should have had that provision since November 2023. They had not, and the Council failed to make a remedy for that lost education and special educational provision. This was fault.
66. In late April 2024, the Council heard W was not attending school at all. Although they were still receiving tuition from tutor B, the Council knew they were not getting the entire package of alternative provision it had funded, because they were not attending school A in the afternoons. The Council only responded to say the school would look into arranging more alternative provision. There is no evidence it followed this up with W’s school to ensure action had been taken. This was fault. In reality, the school had passed the responsibility of finding alternative provision to Miss X. The duty to arrange alternative provision for W was the Council’s, so it should have had appropriate oversight to ensure school A was doing what the Council wanted it to do. This meant W missed out on some of the education and special educational provision they should have had between April and July 2024, when the additional funding ended.
67. The lack of oversight meant that by September 2024, the Council did not have the information it needed to decide whether to approve a continuation of the higher level of funding. The Council then delayed obtaining the information it needed from school A until November 2024 and did not consider it until January 2025. This was an undue delay and was fault.
68. There was no fault in how the Council decided what alternative provision to fund in January 2025. It considered the relevant evidence in coming to its decision. The Council agreed to pay for more tuition from tutor B, three hours at provider D and mentoring. The school had increased the tuition and paid for provider D from September 2024, so the fault set out in paragraph 67 did not mean W missed out on that education or the special educational provision they received as part of that education. I am not persuaded that but for any fault, the Council would have agreed the mentoring in September, because the school only started considering it in November 2024.
69. The Council was at fault because after agreeing to fund the mentoring, it failed to check school A had put the mentoring in place and failed to act when it heard W had reduced their hours at provider D. This meant W did not receive the full alternative provision package they should have had between January and May 2025, the end of the period I have investigated. This meant they missed out on some of the special educational provision in their EHC Plan also.
70. In response to Miss X’s concerns about W’s package of education, the Council had a meeting with school A in March 2025. The Council says it told school A it had funding to arrange alternative provision for W. As noted above, the Council holds the ultimate duty to arrange alternative provision for a child not attending school so it was for the Council to decide what alternative provision W should have and how much of it. It was insufficient to simply remind the school it had funds available.
71. However, the Council was not at fault in how it decided that W had a suitable offer of education after the April meeting, where school A made offers to help W reintegrate back into school. As a result, I cannot question its decision. Given the Council came to that decision around two weeks after it had the meeting with school A, I do not consider that had the Council properly considered its duty to W at that time, it would have agreed more provision.
72. In addition to the injustice to W, the faults in this section caused Miss X avoidable upset, frustration and uncertainty about what might have happened if the Council had acted without fault.

Catch-up provision

73. To comply with the Ombudsman’s recommendations, the Council should have met with Miss X to talk about catch-up provision for W by early October 2023. It did not do so until late-December, which was fault.
74. The Council made its decision in late January 2024. Taking into account the holiday period, I do not consider the length of time to be fault. However, the Council then failed to tell Miss X of its decision until March. This was fault.
75. The record of the Council’s decision making in January only noted that the Council did not agree to arrange catch-up tuition for W. There was no rationale recorded. This means I cannot be assured the Council came to that decision properly, so it was at fault.
76. The Council also refused to agree some other provision for W, including play therapy, hydrotherapy and sensory therapy, on the basis that it would wait for the outcome of W’s 2023 annual review to see if they were necessary. However, as noted above, the Council failed to complete the annual review.
77. In addition, despite the Council noting that it should tell Miss X about services which could support her and W, there is no evidence it did so, which was fault.
78. The faults caused Miss X frustration and uncertainty about what the Council might have agreed had it not been at fault. However, I cannot say, even on balance, that the fault meant W missed out on provision. That is because in March 2024 the Council considered what alternative provision W needed, based on their needs at that time. If W had missed out on provision, it would have resulted in an increased need for provision by March. The Council considered whether to arrange the extra provision Miss X asked for and decided it did not agree they were necessary. I did not find fault in how the Council came to that decision.

Communication

79. There was significant communication between Miss X and the Council between September 2023 and May 2025. I am satisfied the occasional flaws in the Council’s communication do amount to fault.

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Action

80. Within one month of the date of my final decision, the Council will take the following actions:
1. Apologise to Miss X for the frustration, uncertainty and upset she felt because of the faults set out in this decision. 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 Miss X £500 to recognise her injustice.
3. Pay Miss X £1500 to recognise the impact of the lost education and special educational provision on W. I have recommended this amount in line with the Ombudsman’s guidance on remedies, taking into account W’s age, stage in education, the provision they received, provision they missed out on and their ability to cope with education the Council should have provided.
81. Within three months of the date of my final decision the Council will identify what steps it needs to take to ensure that when a child is on a part-time timetable, it obtains details of that timetable and reviews of its efficacy without delay, so it can be prepared to arrange alternative provision promptly, if necessary. The Council will tell us what those steps are and when it will complete them by.
82. The Council will provide us with evidence it has complied with the above actions.

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Decision

83. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman