Summary: There was fault and delay by the Council in completing an annual review, amending an Education, Health and Care (EHC) Plan, and identifying a new setting. As a result a child has been out of school, with part-time alternative provision, since October 2024. This caused loss of education, distress and placed additional caring responsibilities on Ms X. The Council has agreed actions to remedy the injustice caused.

The complaint

1. Ms X’s child, Y, has an Education, Health and Care Plan (EHC Plan). Ms X complains the Council:
• failed to provide an educational setting that was suitable for Y’s special educational needs (SEN);
• delayed completing an annual review and issued a final amended EHC Plan outside statutory timescales;
• failed to identify a suitable new school placement for Y;
• failed to provide a suitable education while Y was out of school and the Council was looking for a new placement;
• failed to consult parental preference schools.
2. Ms X says because of the alleged fault Y missed out on fulltime education and social interaction, with additional caring responsibilities placed on her as a parent carer.

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 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. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
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)

Back to top

How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

12. The Council held a review of Y’s EHC Plan in Spring 2025. The mainstream school reported Y was attending an alternative provision three days per week. Ms X told me Y stopped attending school in October 2024 and started at the alternative provision in or about December 2024/January 2025.
13. At the review meeting it was noted Y was making some academic progress in small groups of three at the alternative provision and was starting to build some trusted relationships with adults but was isolated from peers and had low mood requiring mental health support. The school noted Ms X was not open to Y returning to school and the school’s view was due to the size, number of pupils and expectations, Y was not currently able to attend a mainstream school.
14. The Council’s decision after the review meeting was to amend the Plan in response to the request for a new setting. The Council has acknowledged this decision, and the amendment notice, was issued five weeks late.
15. Ms X complained to the Council in April 2025 about lack of support at school, about delay finalising the Plan, and that the alternative provision was only part-time and this inconsistency had affected Y’s progress and wellbeing. Ms X had identified an independent special school which had a place available after Easter.
16. The Council’s complaint response upheld delay in amending the Plan and that its communication with Ms X was sometimes lacking. The Council did not refer to the complaint about part-time alternative provision.
17. Ms X asked the complaint to go to stage two. The Council said the draft Plan had been issued in late May. It said its panel had decided not to consult the independent special school because it would consult specialist provision within its own schools first. It said if Ms X did not agree with the Council’s choice of school when the final Plan was issued, she could use her right of appeal. The Council referred to the alternative provision report at the review meeting that Y was engaging well and making progress. The Council again did not comment on the part-time nature of the provision.
18. Council records show a panel considered a request for a change of placement from the mainstream school to an independent special school in May. The decision was for the case to be referred to the specialist placement panel in Autumn 2025.
19. By the time of the panel in Autumn 2025, no consultations had been successful, but a further consultation was to be explored at a resourced provision.
20. Documents provided to the Ombudsman show the Council consulted three settings in September 2025 and one in January 2026. Ms X told us two of these schools were her suggestions, but the Council refused to consult two independent special schools despite them having places available.
21. The final EHC Plan was due in early June but was not issued until November 2025. It continued to name the mainstream school Y was not attending, although the panel had advised resourced provision was suitable and the Council told me there was no expectation Y return to the school.
22. Y stopped attending the alternative provision in or about October 2025, as this broke down when staffing changed. The school arranged tuition instead, but Ms X told us there was a gap before this started. Invoices provided by the Council show tuition started in December 2025.
23. In January 2026 the case went back to panel due to a request for increased funding from the school to fund tuition and alternative provision until the end of the school year. The panel record shows Ms X had raised concerns the part-time provision was not meeting Y’s needs. The outcome of the panel was for a local school with a resourced provision to visit Y with a decision postponed to the next panel meeting until this consultation had taken place.
24. In January 2026 Ms X requested an early review meeting. Ms X said the Plan was still written as though Y was attending a school, but this was not the reality as Y had a 10 hour per week tuition package. Ms X said the Plan was not being delivered as written. Ms X said her request for direct payments to deliver the educational and therapeutic activities Y required while out of school had been refused, although the Council was not securing full provision. Ms X said the alternative placement was not meeting Y’s needs. Ms X again asked the Council to consider the independent special schools. Ms X said the Council did not provide an alternative school for her to visit until January 2026, but this school proved unsuitable and did not offer a place.
25. I asked the Council if it considered if it owed Y a duty to provide suitable alternative education under s.19 Education Act 1996. It said as Y had an EHC Plan the alternative provision was funded via this mechanism. The Council says the request for alternative provision when Y ‘refused to attend school’ was made by the school and the reason for three-day provision was because ‘it was the view that this is what was manageable for him at this time’. It says the Council monitored the provision and it 'could have been adapted depending on progress and engagement’. The Council says the school advised Y struggled attending the alternative provision when staff changed which led to the school putting in place daily tuition in Autumn 2025.
26. I asked the Council if its intention was for Y to reintegrate into the current named school. The Council told me it has deemed that Y would be suitable for placement within a mainstream school with additionally resourced provision and it is exploring potential placement options and the school is arranging interim tuition.
27. Ms X told me there were gaps in education between Y stopping attending school and the alternative provision starting, and again when this ended before tuition was set up. Ms X told us she has asked for support via direct education payments or so she could have a break, but no support has been offered by the Council. Ms X says she funds a weekly routine of gym and sports activities to keep Y occupied during school time. Ms X told us that the school is now advising her child will only be entered for functional skills exams not GCSE’s and told her she would have to fund any GCSE exams herself. Ms X says there are independent special schools available with places and her child deserves to be in a school fulltime not left on a long-term part-time timetable of home tuition.

Relevant law and guidance

Review of EHC Plans

28. A child or young person with special educational needs may have an Education, Health and Care (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. 
29. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s special educational needs (SEN), the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment.

30. 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 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 (SEN) and Disability Regulations 2014 and SEN Code paragraph 9.176) 
31. 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.

Duty to secure special educational provision in an EHC Plan

32. 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).

Education direct payments

33. 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. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
34. 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.
35. 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

36. 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 makes 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.
37. 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.
38. 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.
39. 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. A part-time timetable must not be treated as a long-term solution. 
40. Government guidance ‘Working together to improve attendance’ says Councils and schools should agree joint actions for severely absent pupils and review progress and / or additional actions at meetings with the school. Councils should also work with other services to provide multi-disciplinary support to address barriers to attendance and have a school attendance support team.
41. 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)
42. 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;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and 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) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

43. 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 duties are properly fulfilled.
44. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
45. A Council or the Tribunal may determine it is necessary for a pupil with an EHC Plan to receive some, or all, of the special educational provision set out in their Plan otherwise than in a school or post-16 institution (Section 61 of the Children and Families Act 2014). Councils can only use their s.61 power where satisfied it would be ‘inappropriate’ for provision to be made in any school. The Council is fully responsible for securing provision under s.61 in the same way as a school placement named in an EHC Plan

Social care

46. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
47. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

48. The Breaks for Carers of Disabled Children Regulations 2011 requires councils to have regard to the needs of carers and to provide, as far as is reasonably practicable, a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively. Councils must produce a ‘short breaks statement’ setting out details of the range of services available in its area.
49. The Children Act 1989 (as amended by Children and Families Act 2014) places duties on councils to assess the needs of parent carers of disabled children on ‘the appearance of need’. The purpose of a Parent Carer Needs Assessment is to support parent carers to sustain their caring role and support parent carers to work or access education, training or leisure facilities.

Analysis

Delay in annual review

50. The annual review meeting for Y’s EHC Plan was held in mid-March 2025. The Council’s decision to amend was made five weeks late. The final amended plan was due in early June but not issued until November. The Council told us this was due to trying to agree changes with Ms X and to staffing shortages.
51. The final EHC Plan was nearly six months late. This was excessive delay and was fault.

Delay in consulting schools

52. Ms X requested a change of placement in Spring 2025. The Council decided Y should move from a mainstream classroom environment to a resource unit. It made this decision in May 2025 but did not start to consult placements until September. This delay is fault. The change of placement request should have been decided within the timeframe for amending the Plan, that is twelve weeks of the March 2025 review meeting.
53. The Council was nearly six months late in amending the Plan and, as it had not yet found a placement, it continued to name the same mainstream school. Ms X had a right of appeal against this decision, but I consider it was reasonable for Ms X not to use it, as the Council was continuing to search for an alternative setting and Ms X had no reason to assume this would be unsuccessful.
54. The Council has still not found an alternative setting for Y to attend. This is service failure. The Council has been looking for nearly a year, and Y has now been out of school since October 2024. There has been no decision that Y’s needs cannot be met in a school under s.61 Children and Families Act 2014 or that Y is too unwell to attend any school, Y is only absent because the Council has been unable to provide a suitable setting for Y’s SEN.
55. While parents do not have a legal right to request an independent special school is named in an EHC Plan, this does not mean parents cannot ask for such a setting. Councils must take into account the views and wishes of the parent and child. The Council had a duty to secure fulltime education for Y and potentially could have done so at the independent special schools Ms X put forward. While it is understandable councils will want to consult local schools first, once the search has been unsuccessful, we would expect councils to widen their search to neighbouring authorities and the independent sector rather than leave a child without suitable education. Councils must not have blanket policies not to consult independent special schools; they must consider each case individually.
56. I find there was significant drift and delay in the case going to panel for consideration of specialist provision between May and November 2025. There was further delay between the panel decision in November and consulting a resource provision in January. My understanding is this school has declined to offer a place and therefore the case should immediately have gone back to panel or out for wider consultation. The Council’s panel decided Y required resource provision in May 2025, but the Council has so far failed to implement that decision. This is fault and as a result Y continues to remain without a suitable school place.

Alternative education (s.19 education)

57. Y has been unable to attend school since in or about October 2024. Under s.19 Education Act 1996 councils must provide suitable fulltime education to pupils unable to attend school due to exclusion, illness or otherwise. Ms X told me Y stopped attending after a traumatic incident at school and was too anxious to return. There is no evidence the school or council disagrees with Y’s inability to attend as alternative provision has been in place from in or about December 2024 and no measures to enforce attendance have been taken.
58. The Council has provided very little documentation about the s.19 education. There is very limited evidence the provision has been kept under review. The alternative provision setting provided evidence for the March 2025 review but the next evidence I have seen is information the school submitted to the Council in January 2026, when the school requested additional funding for tuition.
59. The Council told me it has never considered its s.19 duty to Y. This is fault. While the Council can delegate the arrangement of alternative provision and funding to schools, the legal s.19 duty remains with the Council and cannot be delegated. It is therefore the responsibility of the Council to ensure alternative provision is in place and that it is suitable and fulltime, unless there is medical evidence to support fulltime is not suitable.
60. I have seen no medical evidence to support provision of less than fulltime, or any evidence that even if the Council was satisfied part-time (three day per week) education was suitable in early 2025, that it kept this under review. The only evidence available supports that Y was engaging in the provision in March 2025. On this basis I would have expected to see the Council looking to increase this to five days.
61. No evidence has been put forward for the level of tuition in place since October 2025.
62. The Council has not provided any written decisions to Ms X setting out that it had a s.19 duty or explaining the level of provision made or how or when it would be reviewed. The Council also did not engage with the part of Ms X’s complaint about the provision being only part-time. This is fault.
63. There is no evidence the Council worked with the school to review progress, set or review actions, involve the school attendance support team, or referred to other support services to provide whole family support. This is fault.
64. Y had an EHC Plan and therefore there was a requirement the Council consider providing support to Ms X as a parent carer on the appearance of need. As Ms X had told the Council as early as May 2025 that Y’s absence from school was having an adverse impact on her as a carer, I would have expected the Council to have referred Ms X and Y for appropriate social care assessments or support via ‘short breaks’.
65. The Council told me it does not consider Y falls within s.19 as the funding for Y’s alternative provision is being made through Y’s EHC Plan. I disagree. The Council has not decided Y requires Education Otherwise than at School under s.61 Children and Families Act, that is that Y’s needs cannot be met in any school. The Council has throughout maintained Y’s needs can be met in a school, therefore Y’s alternative provision is being made under the Council’s s.19 duty, as well as the s.42 duty to secure special educational provision in the Plan.
66. Ms X says she made requests for education direct payments to secure therapeutic parts of the special educational provision. I have seen no evidence the Council provide a formal decision to these requests or provided Ms X with a right of review. This is fault.

Injustice

67. As a result of the above faults I have identified, Y has missed out on suitable fulltime education between October 2024 to date and Ms X has had to take on additional caring responsibilities and costs to keep Y occupied within school hours. The fault has caused unnecessary distress and inconvenience. Y has become isolated from his peer group and may now be limited in the academic qualifications he can access.
68. Where we have found fault, we will recommend appropriate remedies. In assessing the remedy, we take account of any provision made or offered. Where fault has resulted in loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss taking into account a child’s SEN and any provision that was made. We may also reimburse parents for educational expenses they have incurred.

Back to top

Action

69. Within four weeks of my final decision, the Council will:
• Apologise to Ms X and Y for the faults identified in this decision statement.
• Pay Ms X £1900 (£100 per month) towards the cost of sports memberships and lessons she has funded while Y has been absent from education from October 2024 to April 2026.
• Pay Y a payment of £6300 for missed education provision made up of:
1. £1000 for Autumn 2024 between Y stopping attending school and alternative provision being in place.
2. £2000 for Spring and Summer terms 2025 when only three-day provision was in place and the provision was not reviewed or increased despite Y engaging with it.
3. £1500 for Autumn term 2025, between the alternative provision failing in October 2025 and tuition starting, and because provision was only part-time.
4. £1800 for Spring term 2026 when only part-time tuition has been in place.
• Review the current s.19 alternative provision with a view to increasing it to fulltime until a setting is found (unless medical evidence does not support fulltime education). The Council will provide Ms X with a written decision explaining the level of s.19 education that will be provided with reasons, including whether any provision can be made via direct payments.
• Signpost Ms X to support that may be available from social care.
70. The Council will ensure the recent annual review is completed as soon as possible and no later than the twelve week period to issue a final Plan. The Council should ensure that it consults a range of schools consecutively so that it can name a setting in the final Plan for Y to attend without further delay.
71. Within three months of my final decision:
• The Council will review its oversight of s.19 education organised by schools to ensure it is compliant with recent Government guidance and takes into account our expectations for councils set out in ‘Supporting children out of school’ (October 2025);
• The Council will ensure requests for a change of setting are referred to decision makers, including any panels, without delay and quickly returned for further consideration if the advised action is unsuccessful.
72. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman