Summary: The Council delayed arranging alternative education when a pupil was too anxious to return to school and delayed securing special educational provision in an Education, Health and Care (EHC) Plan. The Council has agreed to apologise, reimburse tuition costs, make a symbolic financial payment and make service improvements.

The complaint

1. Ms X complains the Council:
• failed to provide alternative education under s.19 Education Act 1996 when her child, became too unwell to attend school in Spring 2024;
• issued an Education, Health and Care (EHC) Plan in Autumn 2024 which named an unsuitable placement;
• failed to provide alternative education and special educational provision in an Education, Health and Care (EHC) Plan from Autumn 2024;
• failed to progress an occupational therapy (OT) assessment;
• delayed implementing a complaint outcome of providing education and then provided only three hours education per week.
2. Ms X said because of the alleged fault her child missed out on education and none of the needs in the EHC Plan were met. The lack of an OT assessment meant barriers to education were not identified.
3. Ms X says the Council’s communication has been adversarial and the faults have caused time, trouble and distress.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
9. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
10. 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)

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What I have and have not investigated

11. I have investigated whether Ms X’s child missed out on education between Easter 2024 when they stopped attending school, and March 2025 when an amended final EHC Plan was issued. The Council’s final response to the complaint was in January 2025, but implementation of agreed actions continued until March 2025.
12. I have not investigated the period after March 2025. Ms X had a fresh right of appeal following amendment of the EHC Plan. If she remained dissatisfied with the level of provision, or the way it was quantified and specified in the Plan, we would have expected her to appeal to the Tribunal. I also do not consider the Council has had an opportunity to consider events after this date through its own complaint process.
13. I have not investigated the Council’s decision to name a school placement in the first EHC Plan in Autumn 2024 that Ms X considered unsuitable. This was an appealable decision; we would expect a parent to use their appeal rights if they disagreed with the placement named.
14. I have not investigated the actions of the school as these fall outside our remit.

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How I considered this complaint

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

18. The following is a summary of key events. It does not include everything that happened.
19. Ms X’s child stopped attending school at Easter 2024 due to ‘autistic burnout’ and anxiety. They had recently transferred to secondary school. Ms X applied for an EHC needs assessment. Her application referred to her child’s non-attendance since the Easter holidays. Ms X says her child had missed 15 non-consecutive days of school by this point. Ms X says she met with the school and asked for alternative education to be provided under s.19 Education Act 1996, but the school declined to do so.
20. Ms X says she met the school again three weeks later and it was agreed a phased return to school had failed. Ms X requested s.19 education again but says she was told by the school nothing was available.
21. In late May, the Council refused the request for an EHC needs assessment. It considered the school had not yet tried the full range of support available for reintegration and Ms X’s child had been achieving academically up to Easter. It arranged a ‘next steps’ meeting and a senior practitioner visited the home. Records show the school changed its view from a few weeks earlier, now stating that reintegration had not worked. Both the school and family considered a 12-week tuition and reintegration programme with the Council’s Health Related Education Team would not be appropriate as Ms X’s child would not be ready to reintegrate within this timeframe.
22. In June, Ms X arranged for her child to attend an online school 15.5 hours per week. Ms X says she made the school and Council aware of this.
23. In June the school offered two hours per week one-to-one teaching assistant support for relationship building. Ms X refused this because it was not going to include any educational activities, her child had not established a relationship with this person previously, and her child did not want school staff to visit the home. In late June the school offered 45 minutes of one-to-one English teaching at the library which Ms X accepted.
24. Ms X asked to go to mediation before appealing the refusal to assess decision. The Council says at this meeting professional views were Ms X’s child’s current level of anxiety made reintegration inappropriate. The Council says because of the new view from the school, the failed reintegration and a need for more evidence about Ms X’s child, it agreed to carry out the EHC needs assessment.
25. Ms X disagrees that any new information was available at the time the decision was reversed.
26. The Council told me the school agreed to make an urgent referral to a specialist teaching team and apply for extra funding to provide an enhanced package of alternative education / tuition. The Council told me the school did not make the referral until just before the summer holiday and the team replied in late September saying it would undertake a consultation visit.
27. In July Ms X asked the Council to carry out an OT assessment as part of the EHC needs assessment. Ms X says the Council did not reply and no OT assessment was done as part of the EHC needs assessment.
28. Ms X contacted the Council several times about lack of s.19 education as no additional support was put in place. Ms X says the Council directed her to the school because her child did not yet have an EHC Plan and it considered it was the school’s responsibility to provide alternative education. Ms X challenged this view, but the Council insisted it would not intervene unless it was not possible for the school to arrange alternative education. Ms X says the Council wrongly referred to a reintegration plan which was not in place and to the private tuition she was providing.
29. In Autumn 2024 the Council issued a final EHC Plan naming the current mainstream school. Ms X complained to the Council about this decision, the continuing lack of s.19 education, and a failure to secure special educational provision in the EHC Plan when her child remained unable to attend the school named in the Plan.
30. The Council replied in November accepting there had been delay in providing education since the date of the final EHC Plan because the school had been closed for a two-week holiday and had not yet had the opportunity to implement the provision. The Council said the school was now exploring alternative provision. The Council offered a symbolic financial payment for one month missed education of £200 and a payment for Ms X’s time and trouble of £250.
31. Ms X says the Council did agree to an OT assessment in late 2024, five months after it was requested.
32. Ms X escalated the complaint, and the Council provided a further response in January 2025 that:
• Its panel considered her child’s needs could be met in mainstream school;
• A personal budget had now been agreed and would be paid to Ms X as a direct payment to continue the online tuition she had commissioned for 15.5 hours per week. The Council backdated the payment to when the EHC Plan was issued to cover Ms X’s costs.
• It was exploring additional alternative provision (Ms X says this was to increase education hours to 25 hours per week including in-person English and maths tuition).
• It offered £200 for three months missed education (£600) and £500 for Ms X’s time and trouble in bringing the complaint.
33. By February 2025 there had been no progress on the above outcomes, so Ms X had to contact the Council again. This led to discussions about expanding the level of education provided.
34. In Spring 2025 the Council added 3 hours alternative provision outside the home in addition to the online learning. The OT assessment was arranged but did not take place until Summer 2025.
35. The Council amended the EHC Plan and issued a final amended version in Spring 2025. It removed the school placement and changed the provision to an Education Otherwise than at School package under s.61 Children and Families Act 2014.
36. Ms X continued to contact the Council about additional provision and says she was self-funding English and maths tutors at this time. Ms X was seeking back-payment for her costs and the budget to be increased going forward.
37. I asked the Council when it became aware Ms X’s child was missing education and may require s.19 education. It told me it was first aware at the mediation meeting in Summer 2024 and then it received further information from school in September as part of the EHC needs assessment process. It says the school advised in September that while Ms X’s child was accessing one hour per week English tuition at the local library, the family had not engaged with other suggestions such as a teaching assistant visiting the home or completing projects at home.

Relevant law and guidance

Alternative provision

38. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1). We refer to this as section 19 or alternative education provision.
39. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
40. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
41. 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’.)
42. The Courts have found that it is a judgement for the council 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])
43. 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
44. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

45. 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.

Attendance

46. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age receive a suitable full-time education. Failure to meet this duty is an offence.

EHC Plans

47. 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.

48. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

49. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

50. Those consulted have a maximum of six weeks to provide the advice. 
51. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SLT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
52. 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.
53. A Council or the Tribunal may determine it is necessary for a pupil with an EHC Plan to receive some, or all, of the special educational provision set out in their Plan otherwise than in a school or post-16 institution (Section 61 of the Children and Families Act 2014). Councils can only use their s.61 power where satisfied it would be ‘inappropriate’ for provision to be made in any school. The Council is fully responsible for securing provision under s.61 in the same way as a school placement named in an EHC Plan.
54. 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)  
55. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

56. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Analysis

Refusal of EHC needs assessment

57. The Council decided not to agree to an assessment initially, but reversed this decision when Ms X asked to mediate before appealing the decision to the Tribunal.
58. The Ombudsman’s role is to look at whether there was administrative fault. We cannot by law intervene in decisions or professional judgements where the Council has followed the correct process, even if we may personally have reached a different decision on the same evidence.
59. The Council’s judgement was that Ms X’s child had been attending school until recently and the current school considered it could meet needs, so an assessment was not required. The Council’s expectation was that Ms X’s child would be able to reintegrate into the school where they were on roll. By the time mediation was arranged there was more evidence that reintegration had not been successful, and the Council says this altered the school’s previous view. The Council also decided it needed more evidence about the nature of Ms X’s child’s difficulties so agreed to do the assessment.
60. As there is no evidence of fault in the way the Council made its decisions, I cannot question the decisions made. The Council has explained why it changed its view.

OT assessment

61. Parents are allowed to request specific evidence is sought during an EHC needs assessment. Ms X asked for an OT assessment. Councils do not have to agree every request but do have to consider them and give reasons if they decide not to get evidence requested. I cannot see the Council replied to this request at the time of the assessment. This was fault. However, our expectation when a Council fails to get evidence which, in a parent’s view, adversely affects the final EHC Plan, is that the parent uses their right of appeal. It is not for the Ombudsman to determine whether OT evidence was needed to inform the EHC assessment or to prepare a Plan, this was a judgement only the Council or a Tribunal could make.
62. Ms X had a right of appeal when the final EHC Plan was issued in Autumn 2024, and again when it was amended in Spring 2025. We would expect Ms X to have appealed if she did not consider the EHC Plan was accurate and OT advice was needed.
63. The OT assessment has in any event subsequently been completed.

S.19 education Spring to Autumn 2024

64. Ms X’s child stopped attending school at Easter 2024. Statutory Guidance “Arranging education for children who cannot attend school because of health needs” says ‘where possible, the child’s health needs should be managed by the home school so that they can continue to be educated there with support, and without the need for the intervention of the local authority. However, as soon as it is clear that the home school can no longer support the child’s health needs and provide suitable education, the school should speak to the local authority about putting alternative provision in place. There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision’.
65. I cannot investigate the actions of the school as schools are not within our remit.
66. I am satisfied the Council was aware Ms X’s child was out of school when it received the request for statutory assessment in late April, not early July at mediation. When a child is absent from school due to anxiety it is often not immediately obvious that s.19 education will be needed. Government Guidance “Summary of responsibilities where a mental health issue is affecting attendance” supports that schools should work with parents and other professionals to develop a plan where a child is anxious about attending with the aim to maximise face-to-face attendance. Families are expected to engage with support offered.
67. Some s.19 education was offered by the school from June being 3 sessions per week (2 sessions with a teaching assistant at home and one English session). Ms X declined the teaching assistant support.
68. It was not fault for the Council to expect the school to support Ms X’s child and attempt reintegration initially, however, once it was clear this had failed, or provision was not equivalent to fulltime education, the Council should have intervened. The Council says it was agreed the school would seek additional funding and specialist input, but it delayed in doing so. Where councils arrange for schools to carry out functions on their behalf, the council remains responsible. The legal s.19 duty remained with the Council, and it should have retained oversight and control to ensure the s.19 duty was fulfilled.
69. I find the Council should have secured s.19 education no later than early July 2024. The Council did not arrange provision until late Autumn 2024. This was fault.
70. Ms X’s child was however not without any education. Ms X funded 15.5 hours per week of online tuition from June.

S.19 education Autumn 2024 to Spring 2025

71. The Council issued a first EHC Plan naming a school placement in Autumn 2024. Ms X disagreed with the decision to name a mainstream school, but she had a right of appeal about this decision which we would have expected her to use.
72. The Council and Ms X did agree her child remained too anxious to attend the school and so s.19 education continued to be required. There was further delay putting this in place until the Council decided to fund the tuition Ms X had arranged. The Council backdated this funding to the date of the EHC Plan.
73. As Ms X’s child now had an EHC Plan the Council also had a duty to secure the special educational provision in the Plan as far as this was possible outside of school. The Plan included mentoring and access to outdoor learning which were not provided until March 2025. This delay was fault.
74. Ms X says her child should have been provided with 25 hours of education per week, however, it is not for the Ombudsman to advise on the number of hours that were suitable, particularly when there is no medical evidence advising the level of education that was appropriate given Ms X’s child mental health difficulties. 18.5 hours of education per week was available (15.5 hours online and the support on offer from school). The EHC Plan did not specify a specific number of hours and Ms X could have appealed this lack of specification to the Tribunal.
75. In Spring 2025 the Council amended the Plan removing the school placement and substituting Education Otherwise than at School (EOTAS) as the placement under s.61 Children and Families Act. The amended Plan again did not quantify the overall amount of education hours to be provided. Much of the wording in the Plan was still written as though Ms X’s child was to be educated in a school.
76. It is not for the Ombudsman to decide the amount or nature of education Ms X’s child should have received in their EOTAS package. Ms X had a right of appeal to the Tribunal if she was dissatisfied with the provision set out in the EHC Plan we would have expected her to use. I am also not satisfied the Council has had an opportunity to consider any complaint about provision or events after Spring 2025; therefore, I have not investigated this period.

Injustice

77. Ms X funded 15.5 hours education from June 2024, and three additional sessions were offered by the school. Ms X’s child was therefore not without education. The injustice between July and October 2024 was a financial one to Ms X who was out of pocket for paying for tuition when the Council should have intervened under its s.19 duty.
78. From Autumn 2024 to March 2025 the Council did reimburse Ms X for the private tuition but failed to secure all the special educational provision in the Plan. This was an injustice. Mentoring/ keyworker provision and outdoor learning were missed.
79. I have not investigated the period after March 2025 for the reasons given above.
80. The Council has offered Ms X a symbolic payment of £1100 for three months delay (October to January) before it took over the funding of the online tuition, as well as reimbursing the tuition costs. When a child is without education, we usually recommend a symbolic payment of £900 to £2400 per term depending on the amount of education missed, this figure includes time and trouble. The Council’s remedy of £1100 plus reimbursement of tuition costs is a sufficient remedy for the period October to January and there is no basis for the Ombudsman to intervene in the offer already made.
81. The Council has not offered a payment for the period July to October 2024 when it failed to secure more than 3 sessions per week of education; or for the period January to March 2025 when it failed to secure all the special educational provision in the EHC Plan in addition to the online tuition. This is an unremedied injustice.

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Action

Within four weeks of my final decision:

82. The Council will apologise to Ms X for the fault identified in this decision statement.
83. If it has not already done so, the Council will pay Ms X the £1100 it previously offered for the injustice from October to January.
84. The Council will reimburse Ms X for the tuition she funded from July to the date of the first EHC Plan (that is when it took over payment of tuition).
85. The Council will pay Ms X, on behalf of her child, £500 for the missed special educational provision in January to March 2025.

Within two months of my final decision:

86. The Council will ensure that it responds to parent requests for evidence in an EHC needs assessment in writing setting out whether the request has been agreed and if not, why the Council does not consider the request to be reasonable.
87. The Council will provide us with evidence it has complied with the above actions.
88. We have recently made recommendations in other investigations for service improvements in relation to the Council’s duties under section 19 of the Education and to prevent the Council wrongly redirecting complainants to schools in the complaint process; as well as recommendations regarding the securement of special educational provision in EHC Plans. These post-date these events so there is no need for me to duplicate recommendations.

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Decision

89. I find fault causing injustice. The Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman