Summary: We have found fault with the Council for failing to deliver alternative provision to Mrs X’s son when he was unable to attend school. This caused him to miss out on education. The Council has agreed to apologise and make a symbolic payment in recognition of the missed education. We have also found fault with the Council for the delays during the annual review process. This delayed Mrs X’s appeal rights and caused the family avoidable distress. The Council has agreed to remedy this injustice.

The complaint

1. Mrs X complained the Council failed to secure alternative provision for her son, Y when he stopped attending school. She said he missed education and SEN provision. She said the Council missed statutory timescales and as a result her son has no final EHC Plan and is not receiving the Education Other Than At School (EOTAS) package he needs.

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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 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)
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)

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What I have and have not investigated

5. Mrs X brought her complaint to us almost 2 years after her son stopped attending school. Section 26B (see paragraph 3) applies in this case. I have exercised discretion to look back further than 12 months. Mrs X’s other child was seriously ill in hospital for a year and it would not have been reasonable to expect her to bring her complaint to us during that time.
6. I have investigated the period between January 2023 when Y stopped attending school, until December 2024, when Mrs X brought her complaint to us.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs 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

Law and guidance

EHC Plan

9. 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.

Personal Budgets

10. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
11. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
12. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
13. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
14. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

Maintaining the EHC Plan

15. 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)
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Annual review

17. Councils can delegate the holding of the review meeting to a school. However, councils remain responsible for the overall review process. The review meeting is just one part. We would expect councils to ensure reviews were held on time and chase up schools that failed to provide documentation after a review meeting to enable it to complete the review on time.
18. A council must issue a final amended Plan within 12 weeks of the review meeting.

Alternative provision: General section 19 duty

19. 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 section 19 or alternative education provision.
20. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

21. Mrs X’s son, Y has SEN and an EHC Plan. He is on roll at a mainstream primary school but stopped attending regularly in January 2023. The Council agreed with the school and Mrs X that Y could be educated out of year and remain at primary school for an additional year.
22. The Council issued Y’s final amended EHC Plan in March 2023. This named a mainstream primary school in section I.

Request for a bespoke package

23. Mrs X’s preference was for Y to have a bespoke package of education rather than attending school full time. The school advised that it would not be able to provide a bespoke package and that it should be able to meet his needs in school. It was agreed that Y would attend school in the morning and attend other activities in the afternoon.
24. The school reviewed Y’s provision but the Council did not receive a copy of this despite chasing. By May 2023, Y’s attendance had dropped, and the school spoke with the Council.
25. In November 2023, the Council held a phased transfer annual review as Y was being educated outside his chronological year group. The Council issued a final amended EHC Plan in February. This named a type of school.

Request for Education Other Than At School (EOTAS)

26. In 2024, Mrs X requested a personal budget and an EOTAS package. In June, the Panel refused Mrs X’s request for an EOTAS package to be delivered through a personal budget. It did not consider the request showed how Section F of Y’s EHC Plan would be delivered. It also considered the number of proposed hours to be greater than a full-time education and unsuitable for Y.
27. The Council carried out an annual review in July 2024. It agreed to commission an EOTAS package in September. The Council issued Y’s draft amended EHC Plan in October. The Council said Mrs X did not engage with the EOTAS providers. Discussions continued until Mrs X brought her complaint to the ombudsman in December 2024.

Update

28. The Council issued Y’s final amended EHC Plan in March 2025. The Council said that it would continue to work on the EOTAS package but by issuing the Plan, it provided Mrs X with her appeal rights.

My findings

Missed education

29. Y stopped attending school regularly in January 2023. Y’s school confirmed it could not meet Y’s needs. The Council said it expected the school to have delivered alternative provision, work packs, or home tuition. This was fault. It is the Council’s responsibility to consider its Section 19 duty when it is made aware that a child is out of school.
30. The Council failed to consider its section 19 duty and to provide suitable alternative provision for Y. This meant that he did not receive a full-time education between January 2023 and present. The Council has agreed to apologise and pay Mrs X £900 per missed term between January 2023 and December 2024, totalling £5400.

Delayed annual review process

31. The Council carried out an annual review in July 2024 and issued the final amended EHC Plan in March 2025. The Council should have issued it within 12 weeks of the meeting. This Plan was issued 24 weeks late. This was fault.
32. The delay in issuing a final amended Plan delayed Mrs X’s appeal rights. It also caused distress, frustration and uncertainty for Y and his family. In its complaint response, the Council acknowledged the delay and apologised. It said it had reminded staff of statutory timescales and need to keep families updated. It also said it had recruited a significant number of staff to increase service capacity.
33. The Council has agreed to pay Mrs X £200 in recognition of the distress caused by the delays she experienced during the annual review process.

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Agreed action

34. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for failing to deliver alternative provision for Y when he was unable to attend school.
2. Pay Mrs X £5400 in recognition of the missed education.
3. Pay Mrs X £200 in recognition of the distress caused by the delays during the annual review process.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I have found fault with the Council for failing to consider its section 19 duties and deliver alternative provision for Y when he was unable to attend school. This caused him to miss education. I have also found fault with the Council for delays during the annual review process. This delayed Mrs X’s appeal rights and caused the family avoidable distress.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman