Summary: There was delay by the Council in considering a pupil’s need for post-16 transfer, in consulting alternative settings, and in issuing a final amended Education, Health and Care Plan. There was also delay in considering the need for s.19 education when it became clear there was no accessible schooling in place for the 2024-5 academic year. This caused unnecessary uncertainty before provision was secured in Autumn 2024. The Council has agreed to apologise, make a symbolic financial payment, and make service improvements.

The complaint

1. Ms X complains on behalf of her son, Y, that the Council:
• Did not provide full time education for Y for Year 11.
• Did not keep them informed about consultations with potential schools.
• Did not keep the Education, Health and Care (EHC) Plan up to date, for example it referred to mainstream school when the Council was consulting specialist schools.
• Offered an insufficient financial remedy for fault accepted via the local complaint process.
2. Ms X says because of the alleged fault they only learned Y had no educational provision due to repeated follow up with the Council. Ms X says Y missed out on educational and social opportunities as the Council was unable to find a suitable school for him. Ms X says it was only due her efforts that Y was able to access a therapeutic alternative provision.

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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. 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.
5. 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)
6. 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.
7. 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))
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)

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What I have and have not investigated

9. I have investigated alleged injustice caused during the academic year 2024-5 only, when Y was in Year 11. This includes considering the review process prior to September 2024.
10. I have not considered events after Summer 2025. These postdate the Council’s final complaint response. Any new complaint would need to be put to the Council before we could consider it.
11. 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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How I considered this complaint

12. I considered evidence provided by the Council and Ms X.
13. I have considered relevant law and statutory guidance including:

•      The Children and Families Act 2014

•      The Special Education and Disability Regulations 2014

•      The Special Educational Needs and disability code of practice: 0 to 25 years.

14. Ms 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

15. Ms X complained to the Council in November 2024 that Y had no educational provision in place for 2024/5 (Year 11).
16. Y has an EHC Plan and an annual review was held in Spring 2024. Y was on roll at a mainstream school but received most of his education at alternative provision in Year 10.
17. Ms X complained that despite the process of finding placements starting in Spring 2024, the Council did not provide information about how this was progressing until July, when a social worker requested information. Ms X says the Council provided only a basic reply that no schools were able to meet need. Ms X says she had to insist on a meeting, which did not take place until August.
18. Ms X complained a draft amended EHC Plan issued in Summer 2024 continued to refer to Y wanting a mainstream placement when Y had been unable to access mainstream education since Autumn 2023 and it had been agreed to consider specialist schools where Y could settle for three years (Years 11-13). Ms X says this gave a misleading impression to schools consulted.
19. Ms X also complained the Council had not had oversight of Y’s education and had not ensured Y had received suitable fulltime education since October 2023.
20. Ms X complained to us in May 2025 about loss of education for Year 11 (2024-5 academic year) only. Ms X said the Council had not responded to her complaint.
21. The Council replied to the complaint in May 2025. The Council upheld Y did not have specialist education in place for September 2024 but said he did have provision where he was currently on roll and the school oversaw the commission of Y’s alternative provision that currently made up Y’s education package. The Council acknowledged this was not ideal but said it was still looking for suitable provision in a school or college.
22. The Council confirmed it had consulted a wide range of schools after issuing the amended draft Plan in Summer 2024, including independent special schools and residential options. The Council confirmed it had continued with more consultations throughout the school summer holidays, although many schools did not reply until they reopened in September. The Council said it had explored reintegration into the current school, but despite involvement from external professionals this had not been possible.
23. The Council said it held a further emergency review of the EHC Plan in November 2024 to consider post-16 options.
24. The Council acknowledged two settings did refer to the preference for mainstream in the consultation responses but said this was not the only factor in why those schools did not offer places.
25. The Council said it relied on the current school to oversee Y’s education, and it provided the school with funding and support to do so.
26. The Council acknowledged Y had not received a fulltime education in 2023-4 due to problems with the alternative provision and said it was continuing to work to ensure Y’s education built up to fulltime if possible.
27. The Council acknowledged Y had missed out on speech therapy. The Council apologised and offered a financial remedy for this.
28. Ms X asked for the complaint to go to stage two of the Council’s complaint process. Ms X considered the remedy for missed speech therapy was not enough and asked for an increased financial payment, a specialist placement, speech therapy to be commissioned, and the EHC Plan to be amended.
29. At stage two of the complaint process, in July 2025, the Council upheld there were a few weeks of delay after the Spring 2024 review meeting before the decision to amend and draft plan was issued. The Council said the search for a school had been widened once Ms X confirmed she would agree to a further travel distance and the search was continuing.
30. The Council offered a payment of £3240 for missed speech therapy for 2024-5 (three terms).
31. The Council did not consider an additional payment for missed education was required as Y had a timetable for alternative provision of 30 hours from October 2024 and the Council agreed to continue this through the summer holidays of Summer 2025.
32. The Council offered Ms X a payment of £250 to acknowledge the frustration from the delay in responding to her formal complaint.
33. The Council also said it was open to discussing Education Otherwise than at School (EOTAS) with Ms X with a view to amending the Plan to this type of provision.
34. Ms X brought her complaint back to the Ombudsman. Ms X considered additional payment should be made for the fact Y had not been able to access school-based provision with an adverse impact on him socially and to his mental wellbeing.
35. Our enquiries of the Council confirmed:
• the Council issued final amended EHC Plans in August 2024 and March 2025
• Ms X has not appealed these to the Tribunal.
• Y accessed a ‘short breaks’ / therapeutic provider and from October 2024 this provided Y with 30 hours of education and therapeutic activities over a 5 day week.
• Y had accessed alternative education providers in 2023-4 but these had broken down before September 2024.
• The Council’s EHC Plan team intervened to resolve funding issues in using this provider in October / November 2024, and subsequently, so the provision could be extended when a college placement was not found for September 2025.
• The Council agreed an EOTAS package with Ms X which included direct payments for Ms X to commission provision herself, including speech therapy.

Analysis

EHC Plan / process

36. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the EHC Plan review process should take account of this.
37. In all cases, where a young person is planning to transfer between one post-16 institution and another within the following 12 months, the council must review and amend, where necessary, the young person’s EHC Plan. This must be at least five months before the transfer takes place.  
38. The Council was aware Y had not attended his mainstream placement for most of Year 10 (2023-4) and should have called an early review to explore why the provision was not meeting need and if an alternative setting was needed, so this could be named by 31 March. If this had happened, then consultations would have been sent out earlier and may have been more likely to be successful. When consultations were sent, they included the option of Y restarting sixth form (repeating Year 10). As the Council did not start consulting potential new settings until June, many schools were already full for September.
39. Y’s annual review was not held until April. The Council says there was a delay in the school providing the right paperwork and then a delay in sending out consultations, until late June. This was fault.
40. The decision after annual review was to amend the Plan. 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.
41. The Council was a month late completing these steps, issuing a final amended Plan in August 2024.
42. Ms X complained the draft Plan issued in June was used for consultations and gave a misleading impression Y would only consider a mainstream school. As this was only a draft the remedy was for Ms X to ask for amendments before the final version was issued. Based on the information I have seen, I do not consider Y’s views in the draft were the reason any schools declined to offer a place.
43. The Council issued a final Plan in August and continued to consult with more schools, but apart from residential schools, this was unsuccessful.
44. Ms X had a right of appeal against the final Plan which we would have expected her to use if she disagreed with the setting or description of needs and provision.

Alternative education

45. Section 19 of the Education Act 1996 (‘the s.19 duty’) says that councils must arrange suitable alternative educational provision when it finds that a child of compulsory school age 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.
46. 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.
47. 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)
48. 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 or not it will arrange alternative education provision.
• as a matter of good practice, it should communicate this decision to parents. Where a council decides not to arrange alternative education, it should tell parents the expectations about school attendance, and the potential consequences for continued absences.
• where it decides to arrange alternative education, it must ensure the provision meets the individual needs of the child. As a matter of good practice, it should 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.
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) to ensure that issues are dealt with promptly by the right people, and that any complaints and identified and responded to under the relevant policy.

49. 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 s.19 duties are properly fulfilled.
50. Y’s school arranged alternative provision for Y in 2023-4 (Year 10). This would have been on behalf of the Council under the Council’s s.19 duty. The Council therefore remained responsible for the provision made.
51. There is evidence of problems with the alternative provision in 2023-4. One provision closed and incidents relating to Y’s behaviour also led to placements breaking down.
52. The period I have been asked to investigate is from September 2024, but also to consider the Council’s actions in planning for September 2024.
53. I have already found the Council was late in holding the review and starting to consult new school settings. The Council will also have been aware before the Summer holidays no provision had been secured for September 2024. I have not seen evidence that it made efforts to secure alternative provision in time for the new school year. This was fault.
54. The evidence supports that Y was attending a provision under ‘short breaks’ and it was Ms X who pushed for this to be kept in place, so Y was not left without provision.
55. The Council did agree to use the provision Ms X found. I have seen evidence of a 30 hour per week timetable in October 2024 which included both academic learning in English and Maths as well as therapeutic and other activities. It was a full five-day timetable that enabled Y to work towards appropriate qualifications. Ms X later requested a personal budget / direct payments so Y could continue to access this provision, and she could commission it direct.
56. I have not seen evidence the provision was in place for September, however the Council did extend the provision through the Summer holidays in July/August 2025, which was an appropriate way of making up for any provision missed.
57. While Ms X is correct to say the Council was unable to secure a suitable day school or college setting for Y for Year 11, I am satisfied an alternative fulltime education package was in place for 2024/5 which discharged the Council’s s.19 duty. While Ms X says Y was isolated, subsequent reviews show Y did have opportunities to access peers at this provision.

Speech therapy

58. Y did miss out on speech therapy in 2024-5. The Council accepted fault in its complaint response and offered a suitable financial remedy of £3240. We cannot add to this outcome.

Poor communication

59. There was a lack of communication with Ms X about the school consultations between the April 2024 review and Summer 2024. Ms X did have to press for updates and a meeting. This will have created uncertainty for Ms X and Y about what would be in place for September.
60. After September 2024, I find there has been improved communication. A further review was held in Winter 2024 and a further updated EHC Plan issued in March 2025. There has also been communication about funding including EOTAS, personal budgets and direct payments.
61. Ms X has not appealed the final EHC Plans, which we would have expected her to do if she was unhappy with the contents.

Injustice

62. I find the payments and apologies the Council has already made for the missed speech therapy and delay in the complaint process are a satisfactory remedy for these aspects of the complaint.
63. I have not found evidence Y missed out on fulltime education in 2024-5.
64. I have found:
• Delay in the review and amendment of the EHC Plan (April to August 2024) and in beginning to consult schools.
• Delay in considering s.19 alternative provision for September 2024 once it became apparent that Y would not have a school he could access.
• Poor communication between April and August 2024.
65. I consider these faults will have reduced the likelihood of Y obtaining a school placement in time for September 2024 and caused unnecessary uncertainty and distress.

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Agreed Action

Within four weeks of my final decision:

66. The Council will apologise to Ms X for the additional fault I have identified and the injustice caused.
67. The Council will pay Y £500 for the uncertainty and distress caused.

Within two months of my final decision:

68. The Council will review our guidance on s.19 education as well as recent government statutory guidance in this area to ensure it has robust arrangements in place to maintain oversight of s.19 provision, including when this is commissioned on its behalf by schools or parents.
69. The Council will ensure that reviews where a transfer of setting is required is held in time to complete consultations and amend the EHC Plan in time for meeting statutory timescales.
70. The Council will provide us with evidence it has complied with the above actions.

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Decision

71. 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