Summary: The complaint is about the Council not providing Mrs H’s daughter with education she was entitled to, partly because it was using out of date information in her Education, Health and Care Plan. We uphold the complaint, due to the Council not checking with the school about what alternative provision it was putting in place when the child stopped attending school. The Council has agreed to our recommendation that it make Mrs H a payment for tuition fees she could have avoided. And a symbolic payment for the uncertainty about whether Mrs H’s daughter might have been able to receive more provision but for the fault.

The complaint

1. Mrs H’s complaint is about the Council’s delivery of the contents of her daughter’s (X) Education, Health and Care (EHC) Plan. My summary of the complaint is the Council:

• did not provide X with the education she was entitled to for several months;
• gave its decision making panel out of date information, which was a factor in it not agreeing to a specialist placement;
• ignored their contacts. Because of how it was affecting X, they felt that they had no other choice but to instruct a solicitor.

2. Mrs H says the faults meant X experienced extreme trauma in attending a mainstream school. She missed out on education. The situation has been stressful for the whole family. And it had financial costs: in paying for private tuition and instructing a solicitor.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. 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)
7. 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.
8. 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)
9. 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

10. We will not normally consider matters that happened more than 12 months before a complaint to the Ombudsman. This applies to Mrs H’s complaint. She complained to us in March 2025. At that time her complaint was premature, as she had not completed the Council’s complaints process. After doing so, Mrs H came back to us in June 2025. She complains about matters back to January 2024.
11. Mrs H says she could not complain earlier because she has her own disabilities; which were worsened by the stress of advocating on behalf of X. Given those circumstances, I have used my discretion to look at matters back to January 2024.
12. In July 2024, the Council issued X with a revised EHC Plan. The content of that Plan was appealable. As Mrs H had that alternative remedy, the Ombudsman will not look at the contents of that EHC Plan.

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How I considered this complaint

13. I considered evidence provided by Mrs H and the Council as well as relevant law, policy and guidance.
14. Mrs H 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

Legal and administrative background

EHC Plan 

15. A child or young person with special educational needs may have an 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. 
16. The council has a duty to make sure the child or young person receives the special educational provision set out in section F (the provision) 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)
17. 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. 

Reviewing EHC Plans

18. 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 cease to maintain 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) 
19. Outside the annual review process, the 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 may also decide to complete a reassessment if it thinks one is necessary.
20. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Alternative provision

21. Section 19 of the Education Act 1996 says that councils 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.
22. 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.
23. 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.
24. If a child has an EHC Plan a council has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the special educational needs support is designed for the child’s normal classroom setting.

What happened

Background

25. The Council issued a first EHC Plan for X in November 2023, naming a mainstream primary school (School 1). Mrs H had wanted X to attend a named special school (School 2). The Council’s record of its decision noted X was awaiting an autism spectrum condition (ASC) diagnosis.
26. In December 2023 X was diagnosed as having an ASC.

Events I have investigated

27. At the end of January 2024 School 1 emailed the Council to advise that its special educational needs co-ordinator had spoken to X’s parents. And they had agreed it was in X’s best interests that she no longer attend School 1. It advised it had “tried everything”. But “…the mainstream environment is not allowing X to thrive”. It noted it was hoping X would attend an animal sanctuary for an afternoon a week while she was still on School 1’s role.
28. X attended some taster days at School 2 and in March it advised it could meet her needs and offered her a place.
29. In March and April the Council considered Mrs H’s request for a placement for X at School 2. It did not agree to the placement. Its rationale for its decision was:
• it did not feel there was enough evidence of School 1 seeking professional advice about support for X. So it would like to see the impact of that before considering a change of placement;
• mainstream provision would give X the best opportunity to progress with independent learning and accessing education in her local community (although recognising X might need a high level of support to meet her needs).
30. In mid-April the Council emailed School 1 asking what strategies it had used, and adaptions it had made, to support X.
31. Mrs H complained to the Council. Its mid-April response advised:
• it had liaised with School 1 to ensure that alternative provision to support her reintegration was put in place. It had told the School it did not consider the situation acceptable and the School needed to do more to support X;
• it had asked School 1 to “engage [X] with education”. And to hold a review of her EHC Plan;
• after School 1 had done that it might again consider a request for a specialist setting.

32. In May School 1 held an emergency review of X’s EHC Plan. Its record of the meeting says:
• X was attending the animal sanctuary and had a tutor once (increasing to twice) a week. The “[f]amily and school have explored a number of alternative provisions together but this feels the right balance for [X] currently”.
• “As all consultations and assessments had gone well and the [Council’s] Case Officer was actively chasing [School 2’s] response to consultation all parties (home and school) were led to believe that [X] would likely have a place in a specialist provision by the summer term. It is for this reason that further Alternative Provision was not actively sought by the school”.
• “Since April 24, when the reality of the situation was clear to us, we have worked with the family to provide what we can to support [X], namely two tutor sessions for [X]. The family agree this feels the right balance as [X] is in a fragile state”.
33. Mrs H says the family had at first been paying for the costs of the tutor. And it was only later School 1 agreed to fund this provision.
34. In June Mrs H started a legal claim against the Council. The Council’s response accepted the education X had been receiving did not reflect a full-time education. It noted that shortly before its letter, its Special Educational Needs and Disability (SEND) Case Officer had liaised with Mrs H about what further provision X could receive. But Mrs H had advised she did not wish X to receive more hours of alternative provision. The Council noted under those circumstances it could not provide X with the provision in her EHC Plan.
35. Mrs H advises that, by the time of the June contact from the Council’s officer, X’s mental health had deteriorated to the point when she could not then cope with any further alternative provision.
36. Later in June the Council issued X with a draft amended EHC Plan.
37. In July the Council again considered the request for X to attend School 2. It decided X's needs could best be met in a specialist provision, so agreed for a change to School 2.
38. Later in July the Council finalised a revised EHC Plan. This named School 2.
39. X started at School 2 in September. Mrs H says, after a short transition period, X has been attending the School full-time.
40. Mrs H first contacted the Ombudsman in March 2025. We asked her to complete the Council’s complaints procedure.
41. In May the Council responded to Mrs H’s complaint at the second stage of its complaints procedure. It did not uphold Mrs H’s complaint about how it had considered its duties to provide alternative education. It noted Mrs H’s June comments about not wanting extra alternative provision (see paragraph 34).
42. At the beginning of June 2025, Mrs H complained to the Ombudsman. In my enquiries, I asked the Council for all its communications from January 2024 with School 1 about:
1. what it was providing X to meet her needs under:

• Section 42 (see paragraph 16); and
• Section 19 of the Education Act (see paragraph 21); and
2. aiding her transition back to school.

43. In response to my enquiries, the Council noted:
• School 1’s comments in its review of X’s EHC Plan regarding alternative provision (see paragraph 32);
• it had limited written evidence of the Council contacting the School. But its SEND Case Officer would have been having regular online meetings with the School.

Analysis

The Council’s decision on the change of placement

44. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether somebody disagrees with the decision the organisation made.
45. I have considered the steps the Council took to consider Mrs H’s request for X to move to School 2 and its reasoning for its decision making. Its decisions:
• gave reasons why it favoured X remaining in a mainstream setting;
• set out some actions it wanted School 1 to carry out; and
• said it would look again at the issue after School 1 had completed the actions.
46. These were reasonable responses from the Council. And I see no administrative fault in how the Council came to its view. As there was no fault in how the Council made its decision, I cannot question whether the decision was right or wrong.
47. Mrs H says the Council’s decision was made with out of date information; most notably that since X’s earlier EHC Plan, she had received an ASC diagnosis. But the Plan notes X was awaiting a diagnosis. And the EHC Plan was not due for review at that point. The Council sets out reasons why it favoured X remaining in a mainstream session. And some steps it wanted School 1 to take before it revisited the situation. More likely than not, it is likely the Council would have wanted to try follow that approach irrespective of the information Mrs H thought was out of date.
48. For these reasons I cannot uphold these parts of Mrs H’s complaint.

Alternative education after X stopped attending school

49. A council’s duties to provide alternative education are only triggered if there is evidence a child has no educational setting it is reasonable and practicable for them to attend. Councils should consult the relevant professionals involved in a child’s education and welfare taking account of any evidence. If a council then decides a school place remains available and accessible to the child, it should document this and promptly tell the parents.
50. A council also has non-delegable duties to provide the provision in a child’s EHC Plan. Where a pupil with an EHC Plan is out of school, we expect councils to try and secure as much of the Plan’s provision as is possible: in the home or an alternative provision setting. We accept that parts of the provision might not be deliverable.
51. Here, the Council says it would have been in regular contact with School 1 after X stopped attending. But it has no records to show this. The lack of records is fault.
52. In May School 1 carried out a review of X’s EHC Plan. Its record from that review says its understanding was X was going to move to a specialist setting, which is why it did not put any extra alternative provision in place. And it was only in April, that it became aware of “…the reality of the situation”.
53. This response shows that, even if (as it says) the Council’s SEND Case Officer was in contact with School 1, the conversations they had with the School were inadequate. At the least, the Council’s Case Officer should have advised School 1:
• it had a continuing duty to provide as much as it could of the contents of X’s EHC Plan, and checked what it was doing to fulfil that duty;
• that, even if the Council had been working towards a change of placement, in the interim the School should have been providing as near as possible a full-time education to X.
54. To have not had these discussions with School 1, between X stopping attending School 1 at the end of January and the Council contacting School 1 in April, was fault.

Ignoring contacts

55. None of Mrs H’s complaints, or the pre-action letter, raised not responding to contacts as a complaint. And the Council has sent me records of its officers emailing Mrs H. There may well have been some contact that went unanswered, and I understand Mrs H’s frustration. But it does not seem to me that any injustice she was caused was significant enough to warrant the public expense of further investigation into this part of Mrs H’s complaint.

Did the fault cause an injustice?

56. It is likely that, but for the fault, the Council would have intervened earlier to check how X could receive as much as possible of the provision set out in her EHC Plan. If it had done so, on the balance of probabilities, School 1 would have commissioned the tuition Mrs H says the family paid for. As this extra provision would have, more likely than not, helped towards meeting some of the provision set out in X’s EHC Plan that was an avoidable expense for Mrs H.
57. After April, the records suggest School 1 was providing as much as Mrs H thought X could manage. But we cannot know whether, but for the earlier fault, X might have been able to take more provision in that period – as Mrs H says X’s mental health deteriorated during that time. The uncertainty whether, both before and after April, but for the fault, X might have received more of the provision set out in her EHC Plan is an injustice.
58. I cannot recommend the Council refund Mrs H’s legal fees. Mrs H chose to instruct a solicitor. But an alternative route would have been to continue with the Council’s complaints procedure and then complain to the Ombudsman. She could have done that without legal representation.

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Agreed action

59. I recommended that, within a month of my final decision, the Council take the following actions:
• apologise. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• contact Mrs H to seek evidence from her for the tuition fees the family paid for, after X stopped attending School 1. It should refund these fees, as but for the fault, she would not have had these costs;
• make Mrs H a symbolic payment of £500 for the uncertainty whether, but for the delayed contact with the School, X might have been able to manage extra tuition.
60. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman