Summary: Ms X complained the Council failed to provide her child with alternative education when they did not attend school and did not follow statutory timescales following a phase transfer review of her child’s Education, Health and Care (EHC) Plan. I have found no fault in the way the Council decided Ms X’s child was fit to attend school and that alternative education was not required. There was a two-week delay in amending the Plan and incorrect advice about timescales was given. The Council will apologise and make service improvements to prevent a recurrence of this fault.

The complaint

1. Ms X complains the Council failed to provide her child with suitable alternative education when they were unable to attend school. As a result, Ms X says her child missed a year of education, including special educational provision in their Education, Health and Care (EHC) Plan.
2. Ms X also complains the Council did not follow the correct process for amending her child’s EHC Plan following a phase transfer review.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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 young person’s Education, Health and Care Plan.
6. 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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How I considered this complaint

7. I considered evidence provided by Ms X and the Council including the EHC Plan, annual review documents and panel decision.
8. I have considered relevant law, policy and guidance including:
• The Children and Families Act 2014 (‘The 2014 Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
• The Education Act 1996 (‘The 1996 Act’)
• Statutory Guidance: Education for children with health needs who cannot attend school.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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 found

Relevant law and guidance

Section 19 education

11. 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.
12. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that 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 the child 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. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

EHC Plans

14. 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 council can do this.
15. 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 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 cease 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) 

16. 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.
17. 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 such as from primary school to secondary school.
18. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  
19. A council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
20. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
21. There is a right of appeal to the Tribunal against a:

• decision not to carry out an EHC needs assessment or reassessment;
• description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan (in which case the appeal right arises when the parent receives a final amended EHC Plan);
• decision not to amend an EHC Plan following a review or reassessment.

What happened

22. Ms X’s child has an EHC Plan. In 2022/3 and 2023/4 academic years they had some absences from school due to school-related anxiety but maintained overall attendance above 85%. Attendance records show 100% attendance in the last month of the Summer 2024 term.
23. Ms X says over the summer holidays her child developed severe anxiety about attending school and was unable to return to school in September.
24. Ms X moved council areas over the summer, but her child did not change primary school.
25. Ms X requested the (new) Council provide alternative education under s.19 Education Act 1996 on the basis her child was too unwell to attend. She also asked the Council to carry out a reassessment and name a specialist placement for Year 7 in September 2025.
26. A phase transfer meeting (and a review of the EHC Plan) was held in October.
27. The Council considered the request for s.19 education and for a statutory reassessment at its EHC panel. The Council declined to provide s.19 education or reassess. It said the Plan would be reviewed and updated by 15 February to name the next placement. The Council said it would arrange a professionals meeting to discuss how to support Ms X’s child to reintegrate into their current school, which it was satisfied could meet need. It did not accept there was evidence to support non-attendance on medical grounds. The Council also offered a place at one of its own schools.
28. In December, the Council said it would forward a draft amended EHC Plan shortly following the review. It issued a final EHC Plan in January 2025.
29. The professionals meeting took place in January and a plan for reintegration was set out.
30. The Council said Ms X could discuss her concerns with her child’s mental health worker and, if advice was received that her child was medically unfit to attend, a referral for medical tuition could be made.
31. Ms X’s complaint correspondence said:
• The Council was wrong that it did not have to amend the Plan until 15 February as under the 2014 Act, Regulations and Code it should have decided whether to amend the Plan within four weeks of the October review meeting.
• She had provided medical evidence from the General Practitioner (GP) that her child was unable to attend on mental health grounds and so s.19 education should be arranged. She also provided a letter from mental health services that supported a specialist placement from September 2025 would better meet her child’s needs.
32. Ms X appealed to the Tribunal in February against the decision not to reassess and the content of the Plan, including the placement.
33. Ms X instructed a solicitor to send the Council a pre-action protocol letter threatening to judicially review its decision not to provide s.19 education. The Council’s response to this said:
• Ms X’s child remained on roll at their primary school.
• Ms X had stated her child would not return to school for the remainder of the school year.
• The school had made attempts to reintegrate but Ms X had not supported these attempts.
• The Council’s panel had considered the case in the Autumn and was satisfied the current school remained available and accessible and could meet need. It had considered the medical evidence in reaching this decision.
• The Council did not consider all avenues to reintegrate had been fully explored and exhausted by Ms X. It said Ms X should work with the Council and professionals to support the reintegration plan.
• Online learning, work packs and a transition worker were available to support reintegration, alongside other measures.
• The Council would review the situation once these measures had been tried.
34. The Council subsequently conceded Ms X’s appeal and a specialist school place was named for September 2025.

Analysis

What I have and have not investigated

35. I cannot investigate the Council’s decision not to reassess Ms X’s child and to name mainstream primary and secondary placements in the amended January 2025 EHC Plan. As Ms X appealed to the Tribunal, the Ombudsman cannot consider the same issues. (Local Government Act 1974, section 26(6)(a), as amended)
36. I have investigated whether there was fault in the review process or in the decision not to provide s.19 education on medical grounds. As Ms X appealed, I cannot investigate any loss of education that was linked to suitability of the schools named in the EHC Plans.
37. This is explained further below.

S.19 education

38. 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)
39. 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.
40. 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.
41. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal, for example because a child is too ill to attend any school.

42. We can consider whether there was fault in the way the Council made its decision about s.19 education, but we cannot question the professional judgment reached if there was no fault in the process.
43. I find in making its decision about s.19 education on medical grounds, the Council considered the evidence available including the GP advice. The GP advice reflected Ms X’s views about her child’s mental health. The advice from CAMHS did not say Ms X’s child could not attend their school currently, although it did support a move to a specialist placement in September 2025. The Council decided this evidence did not support that Ms X’s child was medically unfit to attend school currently. Ms X’s child had been attending prior to the summer holiday and the Council considered reintegration should be attempted.
44. The courts have been clear that what weight to give medical evidence, and whether to provide s.19 education, is one for the Council to make. The Council has followed the correct process; it held a panel to consider the evidence before reaching a decision. As there was no fault in the process the Ombudsman cannot intervene in the judgment reached. (Local Government Act 1974, section 34(3), as amended)

Transfer review

45. The Council decided to hold a review of the EHC Plan in October 2024. Ms X is correct to say the Council should have decided whether to amend the Plan within four weeks and provided the draft amendments. It had to issue any amended final Plan within twelve weeks of the review meeting. While the latest date to name the secondary placement was 15 February, this did not override the usual timescale to amend a Plan following a review. Sometimes this may mean a Plan is amended twice in quick succession.
46. The review meeting was held in late October. The decision (which was to amend) was due by late November, as was the draft Plan, with the final Plan due by mid-January. The Council was at fault in not issuing the draft Plan within four weeks and advising Ms X it had until mid- February to update the Plan. The Council issued the final Plan in late January, two weeks late.
47. I am not persuaded this short delay led to any significant injustice. There was no change to the provision that was available to Ms X’s child during Year 6 and while Ms X’s appeal rights were delayed by two weeks, her appeal was concluded in time for her child to start their next placement in September. I am satisfied an apology for the additional time and trouble caused to Ms X is a satisfactory remedy for the fault.

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Agreed Action

Within two months of my final decision

48. The Council will apologise to Ms X for giving incorrect advice about amending the Plan after a review.
49. The Council will review its guidance and training to ensure relevant staff understand the timescales for amending EHC Plans after an annual or phase transfer review.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman