Summary: Ms F complained the Council failed to provide special educational and alternative provision to her son. The Council has accepted there was fault and has apologised. It has agreed to make a symbolic payment to Ms F to remedy uncertainty and distress caused.

The complaint

1. Ms F complained the Council failed to:
1. Ensure her son received all of his special educational needs (SEN) provision from September 2023 to June 2025.
2. Provide alternative provision when her son was unable to attend school due to anxiety.
3. Act on her 2024 requests for an early annual review, an educational psychology assessment, an education, health and care (EHC) needs reassessment and a personal budget.
4. Give her a right of appeal on its November 2024 decision not to reassess her son’s EHC needs.
2. Ms F says this has had a detrimental impact on her son’s education and wellbeing and has caused significant distress to her and the family.

Back to top

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 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)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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)
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. 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)
9. 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)

Back to top

What I have and have not investigated

10. Ms F came to the Ombudsman in May 2025. As set out in paragraph 6, this means that complaints about events prior to May 2024 are late as Ms F could have complained to us sooner. However, as the Council has accepted there was some fault from September 2023, I have decided to exercise discretion to investigate the period from September 2023 to May 2025.

Back to top

How I considered this complaint

11. I spoke to Ms F about her complaint and considered the information she and the Council’s sent and:
• The Special Educational Needs and Disability Code of Practice ("the Code").
• The Special Educational Needs and Disability Regulations 2014
12. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Special educational needs

13. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. 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. A council can consider holding an early review if there is a change in the child’s circumstances.
15. Following a review, the council must issue a decision to amend, maintain or cease to maintain the EHC plan within four weeks of the review meeting. If the council decides not to amend an EHC plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the Tribunal.
16. Parents have a right of appeal to the Tribunal if they disagree with various matters, including the special educational provision, the school named in their child's plan, or a decision not to carry out an EHC needs assessment or reassessment.
17. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Reassessments of EHC needs

18. The council must decide whether to conduct a reassessment of a child or young person’s EHC needs if this is requested by the child’s parent, the young person or their educational placement. The council must tell the child’s parent or the young person whether it will complete a 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.

Personal Budgets

19. 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. Direct payments may be made to the child’s parent or the young person so they can commission the provision in the EHC plan themselves.
20. A child’s parent or the young person has the right to request a personal budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC plan. They may also request a personal budget during a statutory review of an existing EHC plan.
21. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

Alternative provision

22. 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 educational provision.
23. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
24. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation.
25. The Courts have found that it is a judgment 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])
26. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. 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)
27. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
28. 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)
29. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.

What happened

30. I have set out the key events. This is not meant to detail everything that happened.
31. Ms F’s son, J, has special educational needs. He had an EHC plan that had been issued in February 2023. The provision in the plan included that J would have:
• wellbeing sessions to help support him to overcome emotional barriers to learning, for at least fifty minutes per week.
• support from a learning support assistant (LSA) during lessons.
• a check that he had eaten at lunchtime or had an opportunity for a snack.
• help to understand when to take movement breaks.
32. J started a mainstream secondary school (“the School”) in September 2023. At the annual review in February 2024, J’s attendance was at 90%. J said that being “shadowed” by an LSA made him feel anxious, so he was unable to engage with this support, and he had been unable to attend the emotional support sessions.
33. Ms F says J became increasingly anxious about attending school and in the spring his attendance declined sharply and he had a mental breakdown.
34. On 16 May 2024, Ms F asked the School for an early annual review. She also emailed the Council advising that J was not attending school and asking for a reassessment by an educational psychologist (EP).
35. The Council replied on 15 July, agreeing to hold an early annual review. It also asked the School to refer J to the inclusion service which provides alternative provision for children with emotionally related school avoidance. The Council has accepted that it should have progressed Ms F’s 16 May email sooner.
36. An early review was held on 27 September. This agreed to request a new EP assessment and a new EHC needs assessment. The review noted that J was refusing the SEN provision offered by the School. Ms F says she requested a personal budget for sensory provision but the report of the review says no personal budget was requested.
37. The Council received the report of the review on 9 October. As this included a request for an EHC needs reassessment, the Council needed to respond to that by 24 October. The Council has accepted that it was also aware that Ms F had requested a personal budget but it failed to progress this.
38. The Council wrote to Ms F on 31 October to confirm it would maintain the EHC plan as it was. It acknowledged the request for a reassessment and said its panel would need to consider this. At this point Ms F had a right to appeal to the Tribunal about the decision not to amend the EHC plan.
39. Ms F complained on 8 November that the Council had not replied to the reassessment request within the statutory deadlines.
40. The Council considered the request at its panel and replied to Ms F on 21 November. It said it would not reassess J’s EHC needs. The Council has accepted that it failed to set out Ms F’s rights to appeal this decision to the Tribunal. The Council commissioned an audit of J’s current SEN provision.
41. The Council replied to Ms F’s complaint on 5 December. It apologised for the delay in replying to the request for a reassessment. It would work with the School to get J back into education and noted J had been referred to an off-site programme. The Council sent a further response on 20 December apologising that it had not responded sooner to Ms F’s request for an early annual review.
42. On 6 January 2025, Ms F asked for her complaint to be escalated to the next stage. She met with the Council on 24 January to discuss her complaint.
43. The Council replied on 7 February. It said an earlier response to Ms F’s review request could have meant the review could have been held in mid-September 2024. Ms F would have fresh appeal rights following the next annual review. The Council offered Ms F £200 to rectify the distress caused by the delay.
44. Ms F made another complaint on 27 January that the Council had failed to secure the SEN provision set out in J’s EHC plan and had failed to make alternative provision when J was out of school.
45. The Council audited the delivery of J’s current SEN provision. This found that the School had made the provision available but J had not engaged with all of it.
46. Ms F made a new request for a reassessment of J’s EHC needs on 13 February. The Council agreed to the reassessment on 25 February.
47. The Council replied to Ms F’s further complaint on 12 March. It said:
• It had not found significant gaps in J’s SEN provision. It apologised that weekly emotional support had not been provided. A LSA was available in each class for J to access. This was in line with the EHC plan which noted that over time adults would aim to promote J’s independence and move to a monitoring role. J did not want to be prompted to eat lunch, had found food he enjoyed in school and was able to access snacks. J was able to take movement breaks.
• The Council had agreed to reassess J’s EHC needs.
• In relation to alternative provision, the School had used its “best endeavours” to provide a suitable education, plus off-site provision. But the suitability and accessibility of the education had not been sufficiently reviewed recently. The Council would therefore arrange a multi-agency meeting to review this.
• The delay dealing with Ms F’s request for an early review and reassessment in May 2024 had not had a significant detrimental impact on J’s SEN provision.
• It apologised it had not progressed the request for a personal budget.
• The Council offered £200 to rectify the distress caused.
48. Ms F escalated her complaint. The Council’s final response on 24 April apologised that there had been no daily check in with J in relation to his eating. The multi-agency meeting on 17 March had determined that the Council did not owe a section 19 duty to J as education at the School was available and accessible to him.
49. Ms F came to the Ombudsman. A new final EHC plan was issued on 3 June 2025. Ms F later made another complaint this was not being delivered and appealed to the Tribunal about the plan. Ms F’s personal budget request was declined.

My findings

50. In its responses to Ms F’s complaints, the Council has accepted there was the following fault. I have considered what injustice this caused to J or Ms F.

Delayed acting on Ms F’s May 2024 request for an early annual review and for an EP reassessment.

51. My view is that if Ms F’s 16 May request had been actioned promptly it is likely an early review would have been held before the end of the summer term. The September review requested a reassessment but the Council did not agree to this. On balance, I find this would also have been the outcome if the review had been held in July 2024. The delay therefore caused Ms F frustration but not a delay to the reassessment.

Failed to meet statutory timescales in responding to the October 2024 request for a reassessment. Failed to set out her rights to appeal its decision not to reassess on 21 November 2024.

52. The Council response to the request was 28 calendar days late and did not set out Ms F’s appeal rights. She therefore lost an opportunity to appeal the decision not to reassess.
53. The Council agreed to the reassessment in February 2025, which is sooner than if Ms F had had to wait for a Tribunal decision. Nonetheless, she was caused frustration by the delay.

Did not act when Ms F requested a personal budget in October 2024.

54. The Council later declined the personal budget request as it was for provision that was not set out in the EHC plan. Its delay in dealing with the request therefore caused Ms F frustration but did not cause a loss of provision for J.

Did not secure all the support outlined in EHC plan as the emotional support was not provided and there were no checks about J’s eating.

55. Ms F says if J had received the emotional support from September 2023 he would not have become anxious and would have stayed in school. This is not a finding I can make, even on balance of probabilities. This is because there are other factors and personal circumstances involved that mean I cannot establish a clear and causal link between the fault and the claimed injustice of not attending school. I must also consider that J was unable to engage with the support provided in September 2023. Nonetheless, Ms F has been caused uncertainty about what might have happened if the eating checks and emotional support had taken place.

Failed to review J’s education when he was not attending the School to determine if it was suitable.

56. The Council has accepted that it should have considered sooner whether the education offered by the school whilst J was absent was suitable and whether it had a duty to provide J with alternative provision. It did so in March 2025. The delay caused Ms F distress and uncertainty about what educational provision may have been made.
57. Ms F also complained that the Council had failed to make alternative provision. The Council considered whether it owed J a section 19 duty to provide alternative provision at a meeting in March 2025. It found that it did not as it determined that the education provided by the School was available and accessible to J. This is a decision it was entitled to take and I have seen no fault in the way this was decided. I therefore cannot challenge this decision. I therefore do not find it was fault not to make alternative provision when J did not attend.
58. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says that for distress, frustration and uncertainty caused by fault a moderate, symbolic payment up to £500 may be appropriate.
59. The Council has already apologised and offered Ms F £400 in total to remedy the injustice caused. I find this is a suitable and proportionate remedy in line with our guidance.

Back to top

Action

60. Within a month of my final decision, the Council has agreed to pay Ms F £400 to remedy uncertainty and frustration caused by fault.
61. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

62. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman