Summary: We found fault on Mrs Y’s complaint about the Council failing to provide her son with appropriate provision under his Education, Health and Care plan. It failed to show it monitored whether he received the stated provision and satisfied itself he had. It also failed to make and retain records showing it actioned, monitored, and reviewed alternative provision for him. The Council agreed to send an apology, make a symbolic payment, and remind relevant officers of actions needed.

The complaint

1. Mrs Y complains about the Council failing to provide her son, Z, with appropriate provision from February 2024:
1. under his Education, Health and Care plan; and
2. as alternative section 19 provision.
2. As a result, he missed 16 months of education and provision which impacted on all the family and resulted in financial strain because of tribunal proceedings.

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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 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)
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. 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. 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

7. Mrs Y complained to us in June 2025. The law says we would usually only investigate from June 2024 as any complaint before this date would be late. I decided to investigate from May 2024, as this was the date the Council issued his EHC plan.
8. As she complained in June 2025, I have investigated to this date. This means the period of this investigation is May 2024 to June 2025.
9. I have not investigated any complaint where Mrs Y had the right of appeal to the tribunal. This means I cannot investigate the naming of the school, any disagreement about provision set out in his Education Health and Care (EHC) plan, or what it said about his special educational needs.
10. I am satisfied the reason for Mrs Y’s son not attending school was not linked to, or was a consequence of, her disagreement about the educational placement named in the EHC plan. On balance, I am satisfied the reason for Z stopping going to school was because he struggled to cope attending.

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How I considered this complaint

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

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What I found

Law and guidance

EHC plans

12. 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.
13. 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)  
14. 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. 

15. 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

16. 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.
17. 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)
18. 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.
19. 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.
20. 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.
21. 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.
22. 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 (SEN) support is designed for the child’s normal classroom setting.
23. 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.
24. 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 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 issues are dealt with promptly by the right people, and any complaints are identified and responded to under the relevant policy.

25. 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.
26. 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. 
27. 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

28. Mrs Y’s son, Z, went to school 1, a mainstream school, but she did not consider it suitable and wanted him to go to an independent specialist school instead (school 2). The Council disagreed and named school 1 in his EHC plan. Mrs Y complained he was without education and provision under his EHC plan for about 16 months because of attendance.
29. When he was attending part-time, she complained he was in a SEN room with no access to teachers and was given an online package for two hours a day which he could not engage with. Mrs Y complained school 1 could not meet his needs and the Council failed to do enough to find him alternative provision. She said online learning was unable to meet his needs as he could not engage. Tutor provision was made but, after several months, this was changed to an online group session which he found overwhelming.
30. In March 2024, school 1 told the Council Z was on a part-time timetable. The school was working with Z to find times that would work best for him to access school and online learning. The Council explained additional provision of four hours a week through a re-engagement service was commissioned by the Council from March, although the Council’s response to our enquiries said this was 2025.
31. In April, the Council issued an amended draft of the final EHC plan naming school 1. The Council told Mrs Y it presented his case to the Placement and Resource Panel (the panel) for a change of the type of school. The panel decided the school she wanted was incompatible with the efficient education of others. School 1 would seek outreach support and explore alternative provision within the school. Mrs Y told the Council Z could not cope with school 1 even part time.
32. In May, the Council issued a final amended ECH plan naming school 1. This stated he would have ongoing support to improve social interactions, have access to small group emotional literacy training, support with emotional regulation, support with his low self-esteem, catch up maths sessions, and have access to low distraction environments. This was not a complete list.
33. At this point, Mrs Y had the right to appeal this decision to the tribunal, which she did the following month. In her appeal application, she said she disagreed with the following, all of which are outside our jurisdiction: what it said about Z’s special educational needs in Section B of the EHC plan; what it said about his required educational help/provision in Section F; naming school 1.
34. Her application also explained Z was on a reduced timetable at school 1 and attendance was at 61%. When there, he could not learn due to anxiety or because he was in a SEN room. He was not capable of learning in this environment. She noted the school exhausted its options helping Z access learning. He needed specialist provision to help him access some form of education and to socialise. School 1 could not reduce class size, its overall size, or the number of pupils there. It was, therefore, impossible for it to meet his needs. A specialist school would be smaller and have the right class sizes.
35. In June, the panel met and suggested consultation with two schools.
36. Z remained on the roll at school 1 where he attended part time until October, when he stopped attending. This was, claimed Mrs Y, because the school could not meet his needs. He was logging on to home learning the school provided.
37. The Council noted, having spoken to school 1, that tuition did not need to be classroom based. It told Mrs Y the panel, a multi-agency team responsible for professional guidance to the EHC team to allow consistency with decision-making, had representatives from each of its four special schools. The panel met the previous week and decided not all options had been explored. There was discussion about the use of tuition and an AV (avatar) robot outside a school environment. It also told her while waiting for a suitable school placement, he had been getting into school 1, and tuition did not need to be in the class. It could access alternative provision which could be provided in the classroom, community, or home. Z received two hours of online provision every day.
38. The panel would consider his case the following month. It was waiting to hear from two settings consulted. Before it could consider her request further, it needed to know the response from them as it could only agree independent specialist provision where a child could not be educated in a mainstream school.
39. In November, Mrs Y told the Council while Z was logging on to the home learning school provided, he struggled to engage with it as working from home was difficult for him. The Council replied acknowledging his struggle but said he needed to continue with it. It referred to other alternative provision options that could be explored and asked her what she wanted to do as she previously voiced concerns about it.
40. The Council noted tutors could visit Z at home, online, or in the community. Mrs Y took time off work to help with the tutors. Z still received two hours a day online learning. Mrs Y agreed to using a tutor but not in the home.
41. In December, the Council noted Mrs Y did not want to explore alternative provision, which Mrs Y disputed saying. She pointed out the Council had not discussed what these alternatives might be, such as the option for learning in the community, for example.
42. In January 2025, a review found the tuition with one provider at three hours a week was going well. The Council decided his needs could be met within an additionally resourced unit within a mainstream school. The panel again considered Z and noted one school consulted had still not responded.
43. Mrs Y said between February to April he received three hours a week 1:1 tutoring. This tutoring was stopped in April and changed to an online group session which he found overwhelming.
44. In March, the panel agreed to fund alternative provision with another provider for four hours a week.
45. Mrs Y said from April to June, he received four hours a week mentorship programme
46. In June, the Council received the tribunal order naming school 2.
47. In response to our enquiries, the Council said:
1. it consulted with other schools about a possible change of placement once aware of the attendance issues and problems he experienced.
2. it liaised with school 1 and gave support. It claimed it gave it options for alternative provision while Z could not attend full-time.
3. school 1 made reasonable adjustments to support Z’s attendance there and offered alternative provision through two tuition providers.
4. it did not make section 19 provision as Z remained on the school roll which commissioned provision itself.
5. Z’s access to provision and placement was reviewed by the panel regularly. No evidence from these panel meetings was sent. In the chronology sent by the Council, it stated panel meetings were held in: June 2024; October 2024; November 2024; February 2025; March 2025; June 2025.
6. schools were consulted during the appeal process.
7. school 1 tried various strategies to help Z get in to school such as using a different entrance, alternative provision through tuition, and a re-engagement service which was commissioned to support his attendance.
48. From September, Z started at school 2.

My findings

Complaint a): provision under EHC plan

49. I found the following:
1. The Council issued his final EHC plan in May 2024. It was clear from the information Mrs Y put on her appeal application, and information from the school, that Z was not attending school full-time. She believed the school had exhausted all its options helping him access learning. This had clear implications for his EHC plan provision and whether it was received.
2. There was no information showing whether and how, the Council monitored whether Z received the provision set out in his EHC plan during the summer term at school 1, the half term in autumn before he stopped attending, or during October 2024 to June 2025. There was nothing to show it satisfied itself Z received the provision set out in his EHC plan.
3. I am satisfied these failures amount to fault which caused Mrs Y and Z injustice. For Mrs Y, this included frustration and anxiety. For Z, this was lost provision and uncertainty about whether he would have received what was set out under his EHC plan but for these failures.

Complaint b): alternative provision

50. I found the following fault:
1. The Council was unable to provide evidence requested of Mrs Y asking for alternative provision and what it did when it received her requests.
2. I am satisfied that despite the Council failing to provide this evidence, some alternative provision for Z was made. This was because what the Council claimed about alternative provision was partly supported by what Mrs Y said in her complaint to us and the Council.
3. Mrs Y complained the school had exhausted all options but there was no evidence of the Council exploring this claim with the school to see if it was correct.
4. There was no evidence of the Council fully explaining to Mrs Y what the other options for alternative provision were. For example, it said this could have been in the community, but there was nothing to show it explained and explored this with her. This was an important omission as Mrs Y had made it aware he could not cope with a tutor in the home.
5. I accept there was a period when the Council was consulting other schools as part of Mrs Y’s appeal against the named school in the EHC plan.
6. There was no evidence of the Council reviewing access to alternative provision and monitoring it to ensure it met, and continued to meet, his needs.
7. I am satisfied the fault found caused injustice to Mrs Y and Z. This caused frustration and some uncertainty about whether alternative provision was properly considered and monitored.

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Action

51. I considered our guidance on remedies. I also took account of the alternative provision Z received, his SEN, and educational provision received.
52. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for the injustice caused by the failure to show: whether, and how, it monitored and ensured Z received provision set out in his EHC plan; how it satisfied itself he received this provision; evidence about what it did when it received her request about alternative provision; it explored with the school her claim that it had exhausted all options; it advised her about different options; it reviewed and monitored alternative provision to ensure it met, and continued to meet, his needs.
2. Pay £1,050 to Mrs Y for the injustice caused by the fault found. (May 2024 x 0.5 term: October 2024 x 0.5; January to June 2025: x 2 terms: Total of 3 terms x £350)
3. Remind relevant officers of the need to make and retain records showing what actions were taken when actioning, monitoring, and reviewing cases where a child with an EHC plan is out of school and may not be receiving full provision.
4. Remind relevant officers of the need to make and retain records showing what actions were taken when actioning, monitoring, and reviewing cases where a child with an EHC plan is out of school and may need alternative provision.
5. Remind relevant officers of the need to give parents/carers explanations about options for alternative provision when their child is not attending school full time.
53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I found the following on Mrs Y’s complaint against the Council:

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

55. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman