Summary: We found fault by the Council on Ms Y’s complaint about its failure to make alternative provision for her son Z, when he moved to its area and was not attending school. It failed to work with the school which initially said it could not take Z but went on to do so. It failed to fully consider and explore making tuition available before he got a school place. It also failed to consider whether its section 19 duty to provide alternative provision applied. The Council failed to ensure provision under his EHC plan for one term was made. The Council agreed to send Ms Y an apology, make a symbolic payment, and act to ensure the failures found cannot be repeated on future cases.

The complaint

1. Mrs X complains on behalf of Ms Y about the Council failing to:
1. make alternative education provision for her son, Z, between September 2024 and January 2025; and
2. make provision for her son under his Education, Health and Care (EHC) plan for the same period.
2. As a result, her son missed education and provision to which he was entitled to, and the family were put to the expense of funding private tuition.

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The Ombudsman’s role and powers

3. 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)
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. 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. 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. 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. I have not investigated any complaint Ms Y may have about the Council naming a mainstream school instead of a specialist one. This was because she had the right to appeal this decision to a statutory tribunal and, indeed, used that right. Using the right means we have no discretion to consider investigating it.

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How I considered this complaint

9. I considered evidence provided by Mrs X, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs X and the Council. I considered their responses.

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What I found

EHC plans

10. 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.
11. 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)  
12. 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 show appropriate oversight in gathering information to fulfil their legal duty. As 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. 

13. There is a right of appeal to the tribunal against a council’s description of a child or young person’s special educational needs, the special educational provision specified, the school or placement, or that no school or other placement is specified in their EHC plan.

Alternative provision

14. Section 19 of the Education Act 1996 says councils must arrange suitable alternative educational provision when they find 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.
15. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
16. 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.
17. 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 received.
18. 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.
19. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
20. If a child has an EHC plan the council also has an ongoing duty to arrange the support guaranteed by the plan. This might not always be possible, such as where the Special Educational Needs support is designed for the child’s normal classroom setting.
21. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and parents.
22. 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) 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: and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) to ensure issues are dealt with promptly by the right people, and any complaints are identified and responded to under the relevant policy.

23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Councils should keep oversight and control to ensure their duties are properly fulfilled.
24. The Department for Education guidance (‘Working together to improve school attendance’) says all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a reintegration package. A part-time timetable must not be treated as a long-term solution. 
25. The courts have considered the circumstances where the section 19 duty applies. Case law established 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)

What happened

26. Mrs X is a special education needs consultant who Ms Y instructed to help with the problems she faced with the Council about her son, Z.
27. In August 2024, Ms Y and Z moved to Hampshire from another council. The other council told Hampshire of the move and sent his EHC plan and documents.
28. Mrs X said despite becoming responsible for maintaining his EHC plan from the date of transfer, Z received no education which breached the Council’s section 19 and section 42 duties.
29. The Council decided it was impracticable for Z to attend the school named in his EHC plan because of its location. It consulted one of its schools at the end of the month as this was his nearest appropriate mainstream setting (the school). The school raised concerns about its ability to have Z. Ms Y wanted a specialist setting for Z but did not name one.
30. The Council later accepted it should have worked with this school to see what reasonable adjustments could have been made to support Z access it.
31. It asked Ms Y to name her preferred school but, she did not respond. Another email was sent to her at the end of September.
32. In October, Ms Y told the Council her preferred schools. Mrs X asked about ‘appropriate tutoring’ while a placement was sourced and later about provision which Z could attend for several hours a day.
33. The Council then consulted her six preferred schools. An officer contacted Ms Y about what days Z’s tuition could take place. A week later, the officer emailed Ms Y as she had not replied. At the end of the month, Mrs X replied to a query and asked whether tuition could take place outside of the home to give Ms Y a break from caring him.
34. The Council was not given any safeguarding reasons for wanting tuition outside the home but, it was aware of a section 47 investigation of a family member. This type of investigation is started to decide whether, and what type of action, is required to safeguard and promote the welfare of a child suspected to be suffering, or is likely to be suffering, significant harm. Later the same month, the Council decided to take no further action on the section 47 investigation.
35. The Council identified a number of schools to consult. It also contacted four tutoring agencies to provide Z with interim education until a school placement was found. It said it would have considered additional alternative provision had this been deemed appropriate.
36. At the end of October, The Council told Mrs X that if none of the schools consulted could meet Z’s needs, it would need to look for tutoring either online or at home, whichever was preferred. It issued his amended EHC plan which, for the educational placement, said was to be ‘mainstream’. This was because it had not agreed to specialist provision.
37. In November, the Council said it had been contacted by some tutoring agencies about availability but there was no mention of this happening outside the home. An email from Mrs X early this month said there were no specific dates and times Z would be unavailable for tuition and the family would consider ‘any schedule’ offered.
38. Mrs X contacted the Council. She said the family had been contacted by a tuition agency but preferred for Z to access sessions with an alternative provider (the Provider) so he had time away from home. The Provider was the preferred option for Z.
39. Mrs X also asked for a personal budget to allow Z to have tuition with the Provider. The Council replied a few days later after considering her request. It found it was in another council’s area. This meant it would need to register with the Council and undergo checks before Z could attend. This was for safeguarding reasons. Until these were done, it could not commission services from the Provider.
40. The Council approached the Provider about registering and becoming one of its approved providers. It explained this to Ms Y and said it would now need to look for alternative provision away from the home. The Council decided that as provision was made by the school, a personal budget was inappropriate. The school could commission alternative provision if considered necessary.
41. Mrs X said her request for speech and language therapy and occupational therapy were not responded to by the Council. The Council noted his EHC plan did not state he needed speech and language therapy or occupational therapy. This meant the Council was unable to fund provision not set out in his EHC plan or a report.
42. The same month, Mrs Y complained to the Council.
43. In December, the Council sent its stage 1 response to her. Later that month, the Council issued the final EHC plan and named the school. The Council told Ms Y she had a right to appeal it if she disagreed. The school later contacted the Council as it was unable to contact Mrs Y although this was resolved within a day. The Council told the school funding was agreed and Z would need reduced timetabling and careful transition.
44. Officers met Ms Y to discuss a possible reduced timetable and alternative provision for Z’s transition to the school. This provision could be arranged through the school, not the Council.
45. In January 2025, Z started at school for short sessions with the aim of gradually increasing them. Ms Y asked for her complaint to go to stage 2 of its complaints procedure. The school had problems contacting Ms Y, as did the Council. By the end of the month, the Council was concerned Z only attended school for two hours a day, twice a week. Ms Y asked the Council to consult other schools.
46. In February, the Council consulted the schools Ms Y listed. It also received notification of Ms Y’s appeal about the named school.
47. In March, the Council sent Ms Y its stage 2 response under its complaints procedure. The family left the Council’s area to live in another council area. Z’s file was transferred to the other council.
48. The Council reviewed his EHC plan in May, even though he had moved. This was because he still attended the named school.
49. In response to our enquiries, the Council:

• accepted it should have told Ms Y, within six weeks of her move to Hampshire, the date on which the annual review would take place. It apologised for this failure.
• noted Z did not access education through the autumn term of 2024.
• noted the annual review did take place and it chose to maintain his EHC plan.
• has since updated its special educational needs service guidance for when a young person moved into its area.
• offered Ms Y £500 to recognise the delays in naming a specific setting and the impact this had on his access to provision.

My findings

Complaint a): failure to provide alternative provision

50. I found the following on this complaint:
1. The Council consulted the school in August 2024 which said it could not meet Z’s needs and explained the pressures it was under. The Council later accepted it should have worked with the school to see what it could have done to allow Z to attend. This was a failing which had important consequences as it was the school the Council went on to name and Z to attend.
2. There was some injustice from this failure as Ms Y and Z have the uncertainty of not knowing whether he would have attended there sooner but for the fault. There was a lost opportunity to explore whether the Council could help the school reach a point that would have allowed Z to have attended sooner.
3. A couple of weeks after receiving the school’s response, the Council asked Ms Y for her preferred schools which it then went on to consult, including specialist schools.
4. The issue of tuition was raised by Mrs X in October 2024, initially with no restriction. An officer queried the days Z could do and towards the end of October, Mrs X asked if this could take place outside the home.
5. No evidence showed the Council exploring with Mrs X or Ms Y whether tuition could take place inside the home despite Mrs Y saying she would prefer it to be away from the home. If it was not possible to provide tuition away from the home, the Council needed to have told her. If Mrs Y was refusing to have tutors in the home, this too needed clarifying and exploring to see whether there was a way of resolving the issue.
6. The evidence showed the Council contacted the Provider about the need to be registered and undergo checks. While it did this, the Council also contacted Mrs X to say it would now need to look at alternative provision if tuition did not take place at home. There was no information about what this might be or whether it was now necessary when the Provider was not an option. There was nothing to show whether the Council considered other options should tuition, at home or away from home, not be possible.
7. Understandably, while the Council’s intention was for school consultations to lead to a placement for Z, this was likely not going to be a prompt outcome. There was nothing to show the Council considered whether its section 19 duty applied. There was no evidence showing it considered whether it was necessary to arrange suitable education ‘elsewhere’ for Z while he was out of school as he would not receive suitable education without such arrangements. There was no evidence the Council considered whether there was anything ‘reasonably practicable’ for him to attend during this period. It was not until January 2025 that Z had a school place he could attend.
8. I consider these failures amount to fault. I am satisfied the failures caused an injustice because there was uncertainty as to what could be offered, what the family might accept, and whether there were other available options. There was also lost educational provision for one term (September to December 2024). This caused some frustration and stress to Ms Y.
9. I found no fault on any complaint Ms Y had about the Council’s position about the Provider. This was an alternative provider that was not within its administrative area. It needed to register with the Council and agree to the carrying out of checks.

Complaint b): failure to make provision under the EHC plan

51. I found the following:
1. There was no evidence of the EHC plan stating Z needed speech and language therapy or occupational therapy. The Council explained this to Ms Y, which was why it could not fund it directly or through a personal budget. I found no fault on this part of her complaint.
2. I am satisfied Z did not receive the provision set out in his earlier EHC plan received from the previous council. There was no evidence of it being provided between September to December 2024. This was fault. I am satisfied this caused an injustice as Z did not receive the provision to which he was entitled at what was an early point in his school career.

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Action

52. I considered our guidance on remedies, the action the Council said it has already taken, and its offer of £500. I also considered what his previous EHC plan said, his age, the failure to make any educational provision or support set out in the plan, as well as the period in his school career that the failures took place over. I also consider the request for the Provider which the Council had to investigate as it was out of its area.
53. The Council agreed to carry out the following actions within four weeks of the final decision on this complaint:
1. Send a written apology to Ms Y for the injustice caused by the failures to: discuss the initial decision of the school with it; fully explore the provision of tuition; consider whether the section 19 duty applied; ensure the provision set out in his EHC plan was made.
2. Pay £1,200 to Ms Y for the injustice caused by the identified failures (£1,200 x 1 term).
3. Ensure relevant officers consider and explore whether the nearest suitable, appropriate school could take a child with an EHC plan when it initially says it cannot.
4. Remind relevant officers of the need to consider and explore the provision of tuition either at home, or away from home, where restrictions are raised by parents.
5. Ensure officers consider the section 19 duty and make a record of the decision made.
6. Remind relevant officers of the need to ensure provision set out in an EHC plan is made when a child does not attend school for whatever reason.
54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. I found the following on Ms Y’s complaint against the Council:

• Complaint a): fault causing injustice; and
• Complaint b): fault causing injustice.

56. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman