Summary: Mrs X complained the Council failed to provide education and special educational provision set out in her son Y’s Education, Health and Care Plan while he was unable to attend school. We find no fault in how the Council considered its duty to provide Y with suitable alternative education. We do find the Council at fault for not securing all the special educational provision in Y’s Plan. However, given Y’s circumstances at the time, we do not find this caused him a significant injustice.

The complaint

1. Mrs X complained the Council failed to provide education to her child Y who was unwell. She said it also failed to provide the special educational provision, set out in Section F of their Education Health and Care Plan.
2. Mrs X says this has caused significant distress to her son and had an impact on his mental wellbeing.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. 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)
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(1), as amended)
7. 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

8. Mrs X came to us in February 2025 and complained about matters dating from 2022 to 2024. We cannot normally investigate late complaints unless we decide there are good reasons to do so. Mrs X says she did not complain sooner because her son was unwell. However, there was an ongoing complaint process with the Council during this period, so I consider it was reasonable for Mrs X to have brought her complaint to us sooner. In addition, any events after April 2024 fall outside our jurisdiction because responsibility for the EHC Plan had transferred to a different council. Therefore, this investigation only considers events between February 2024 and April 2024.
9. Mrs X also complains Y did not receive the Speech and Language Therapy (SaLT) provision set out in his EHC Plan. The Council previously considered Mrs X’s concerns about missed SaLT provision under a separate complaint and provided a remedy. I have exercised my discretion not to investigate this matter further as I do not consider there is a worthwhile outcome achievable by doing so.

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How I considered this complaint

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

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What I found

Legislation and Guidance

EHC Plan 

12. 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. 

Content of an EHC Plan

13. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 

Alternative provision

14. 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.

Establishing a section 19 duty

15. 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.
16. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
17. 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.

Guide for practitioners

18. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
19. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

20. 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.

Background Information

21. Y has special educational needs and has an Education, Health and Care (EHC) Plan. During the 2023/24 school year, Y experienced significant health difficulties and spent substantial periods in hospital. He was unable to attend school.
22. During this period, Y’s school sent work packs for him to complete either in hospital or at home.
23. In January 2024, the Council held a meeting to discuss Y’s education. Mrs X said Y was not well enough to attend school, but it was agreed he could begin a gradual return in February. The meeting considered other ways of providing education, it said Y could access the online learning portal which would be suitable. It also considered medical tuition, but professionals did not consider Y would be eligible. Mrs X also said the work packs sent by the school were unsuitable.

What happened

24. In February, the Council held a progress meeting with the school and Mrs X to review Y’s circumstances. Mrs X said Y had spent another period in hospital, he remained unwell and his health had deteriorated since January.
25. The meeting also discussed Y’s separation anxiety. It was agreed that support from the Child and Adolescent Mental Health Services (CAMHS) should be prioritised before placing further pressure on Y to access education.
26. During this meeting, the school also offered Y weekly music therapy sessions. Mrs X declined this because of Y’s school-related anxiety.
27. In March, the Council initiated a re-assessment due to the change in needs. As part of this re-assessment, the Council held a further meeting in April, it was confirmed that Y was still too unwell to attend school. It was concluded that he could not access more provision than the support from CAMHS. It was also raised that Y was moving address, and the plan would need to be transferred to the new Council.
28. In April, Y moved to another council area and responsibility for maintaining his EHC Plan transferred to the new Council.

The complaint

29. In October 2024, Mrs X complained to the Council about the education and special educational provision Y had received while he was unable to attend school. She said he had not been offered any tutoring, or 1:1 support.
30. In March 2025, the Council responded to Mrs X’s complaint. It considered the period from February to April 2024. It concluded that the Council had discharged its Section 19 duty by the time the provision of the online learning portal was agreed. It found the Council had appropriately considered what education Y could access and did not find fault with its actions.
31. The Council also accepted there was fault as it did not deliver the special educational provision in Y’s EHC Plan, as this was a breach of its Section 42 duty. However, it considered it had acted reasonably based on the professional advice and recommendations available at the time.
32. Mrs X remained dissatisfied with the Council’s response and complained to us.

My findings

Section 19

33. Y was unable to attend school because of his health during the period I have investigated. The Council was aware of this and was therefore required to consider whether it needed to arrange alternative education for him. It was also aware Mrs X did not consider the work packs provided by the school were suitable.
34. The evidence shows the Council considered Y’s individual circumstances and what education he was able to access. It discussed medical tuition, but professionals did not consider Y would be eligible. It also planned a gradual return to school, and the school offered weekly music therapy. By February, Y’s health had deteriorated further, and he had spent another period in hospital. The professionals involved considered his mental health and separation anxiety needed to be prioritised before placing further pressure on him to access education.
35. The Council therefore did not simply accept Y was receiving work packs and take no further action. It considered alternative options, sought the views of the professionals involved and kept Y’s circumstances under review as his health changed. It also considered the impact of Y’s health and anxiety on what education he could reasonably access at that time.
36. I recognise Mrs X considers the Council should have provided Y with more appropriate alternative education. However, the Council's duty was to consider what education was suitable and reasonably accessible for Y considering the individual circumstances. I am satisfied it did so. I therefore do not find fault in the way the Council considered its Section 19 duty.

Section 42

37. The Council had a duty to secure the special educational provision set out in Section F of Y’s EHC Plan. This duty remained while Y was unable to attend school. The Council accepts Y did not receive all the provision in Section F of his EHC Plan. The failure to secure this provision was service failure and therefore fault.
38. However, I must consider whether this fault caused Y a significant injustice. Much of Y’s Section F provision was intended to be delivered within a school environment. This included 1:1 support, small-group learning, interaction with peers, support during social times and visual schedules throughout the school day. Y was seriously unwell, spending periods in hospital and unable to attend school during the period I have investigated.
39. On balance, I am not satisfied the Council could reasonably have replicated this provision at home or in hospital, or that Y would have been able to access it at that time. I therefore do not find the Council's failure to secure this provision caused Y a significant personal injustice.

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Decision

40. I find fault not causing injustice.

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Investigator's decision on behalf of the Ombudsman