Summary: There was fault by the Council. It has acknowledged that it did not consider whether Ms X’s son could access the provision he was entitled to under his Education Health and Care Plan. It also did not properly consider its duty to make alternative educational provision, when Ms X’s son could not return to school, and did not do enough to make sure that the school reimbursed the amount Ms X had paid for an online school as agreed. Ms X’s son missed out on education, and Ms X has not been reimbursed. The Council will apologise to Ms X and make the payments as agreed.

The complaint

1. Ms X complains that the Council failed to make alternative educational provision when her son could not go to school, and failed to make sure that it made the provision set out in his Education Health and Care (EHC) Plan. Ms X also says the Council took too long to commission a clinical psychologist’s assessment and did not properly consider the recommendations they made.
2. Ms X says that as a result of the Council’s failings, her son missed out on the education he was entitled to under his EHC Plan. He was caused distress and became isolated which led to a deterioration in his mental health and had a significant impact on his education.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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What I have and have not investigated

5. 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)
6. Ms X complains about matters from June 2023. She complained to the Ombudsman in June 2025 which is more than 12 months after the events complained to us. However, I have decided that Ms X had good reason not to complain to us sooner. In March 2024, the Council agreed that the school should reimburse Ms X the cost of the private tutoring she had arranged and paid for. This did not happen and Ms X complained to the Council in March 2025 and then to the Ombudsman. Ms X believed that the school would pay the costs and so had not complained to the Ombudsman sooner. This was good reason to make a late complaint.

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How I considered this complaint

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
9. 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 found

The law and guidance

Alternative educational provision

10. 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 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.
11. 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.
12. 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 it receives.
13. 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.
14. 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)
15. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether or not it will arrange alternative education provision.
• as a matter of good practice, it should communicate this decision to parents. Where a council decides not to arrange alternative education, it should tell parents the expectations about school attendance, and the potential consequences for continued absences.
• where it decides to arrange alternative education, it must ensure the provision meets the individual needs of the child. As a matter of good practice, it should explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision.
• keep all cases of part-time education under review with a view to increasing when the child is able:
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary:
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) to ensure that issues are dealt with promptly by the right people, and that any complaints and identified and responded to under the relevant policy.

16. 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.

EHC Plan

17. 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. 
18. 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)  

What happened

19. Ms X’s son, K, has special educational needs. The Council had assessed these in 2023 and decided not to issue an EHC Plan. Ms X challenged this and in July 2023, during mediation, the Council agreed to reconsider its decision and to consider commissioning a clinical psychologist to assess K.
20. K had become unable to go to school due to deteriorating mental health and anxiety. He had stopped going to school in June 2023.
21. The school hoped that K could return to school. It gave him a reduced timetable of 1:1 lessons, instructing the teachers to make sure there was sufficient academic challenge in the lessons. K could leave at lunch time, and also have sessions with a member of staff to look at how it was working.
22. The Council issued a final EHC Plan in October 2023. It also commissioned the clinical psychologist.
23. By November, K’s attendance was only at 14% and a Panel tasked with children whose attendance was a cause for concern, considered K’s situation. It took into account what the school was doing and decided that it was following a plan to reintegrate K, but should try other supportive measures. These included to offer remote learning, going to A Level classes in a chosen subject, a meet up with trusted school staff at home or in a neutral setting, learning in a different part of the school, and continuing to set work online and stay in contact with K.
24. The school met with Ms X to go through these measures. K met with a member of the school staff, but was unable to go into school to take up the other means of support. This also meant that K was not receiving the provision set out in his EHC Plan.
25. In December, the Council received the clinical psychologist’s report. They recommended a hybrid model of schooling for K. They said that continued pressure to attend school was causing K harm.
26. In January 2024, Ms X met with the Council. She asked the Council to agree that K could be registered at the school, and at an online school. The school told the Council that it could meet K’s need as set out in the EHC Plan, but this had not been possible because its plan to reintegrate K to the school had not worked. Ms X enrolled K at the online school and paid for this herself, as the new term was starting and by this stage, K had not had a proper education for some months.
27. In February, the Council considered the situation at its SEND panel. It decided not to agree to the online school or dual registration. Instead it recommended that the Council review K’s EHC Plan. It also asked an Educational Psychologist to assess how to meet K’s needs.
28. The annual review meeting happened in March. At the meeting Ms X requested a personal budget to pay for the online school, and some therapeutic services. Ms X wrote to the Council stating that it should have been making alternative educational provision. The Council considered this but told Ms X that the school and the Council were continuing to plan for a suitable education and it was in the process of gathering information following the annual review.
29. The Council said that the school was receiving funding, and would meet the cost of the online school. Ms X should send the invoices to the school. The Council told Ms X that it was processing her personal budget request. It told the school to refund Ms X the costs of the online school.
30. At the end of March, the Council sent Ms X the recommendations of the Educational Psychologist. At the end of May 2024, the Council issued a final EHC Plan that said K should be educated outside of school with a mix of online school, occupational therapy, and other therapeutic services.
31. The Council would not reimburse the cost of the services that Ms X had paid for up to this point. It said the school should do this as it had received funding for K and this had not been spent on his educational provision.
32. Ms X says the school made an offer of payment but this was less than the amount she had paid and shown by her invoices.
33. Ms X complained to the Council in April and May 2025. She said the Council had not considered its duty to make alternative provision for K, nor did it make the provision he is entitled to under his EHC Plan.
34. The Council considered Ms X’s complaints at both stages of its complaints process. Overall it said:
• The school had offered a bespoke timetable and tried supportive measures. The Council had considered whether it had a duty to make alternative provision at a panel in November 2023. It had decided that the school could try further measures and it was required to try to manage education around K’s health needs. At that stage, the school was offering K an education and he was supported. There was a reintegration plan and the school was monitoring how this was going.
• However by January it had agreed that it could not meet K’s needs and so it agreed that K could be registered with the school and online school. The Council said this was the alternative educational provision and so it had considered and provided this.
• The Council had agreed that it would reimburse the cost of the online school that Ms X had paid between January and May 2024. It said that the school would pay a total of £5,255.89 to Ms X, as it had received funding from the Council.
• The Council agreed that it took too long to commission the clinical psychiatrist after this was agreed at mediation.
• The Council’s initial response had not addressed its duty to make provision in accordance with the EHC Plan from October 2023 to May 2024.
• The Council acknowledged it was not possible for K to access all the EHC Plan provision, although the school was making a more tailored provision and the Council made sure the school still had funding for K as it tried to support him to return to school.
• The Council said it should have completed an emergency review sooner so that it could determine whether the provision was suitable and accessible for K.
• The Council offered to pay Ms X £1550 in recognition of the distress it had caused her and K when it did not make sure he was receiving education in line with his EHC Plan.
• The Council had reflected on learning from the complaint and also agreed to arrange refresher training for managers regarding complaint handling to make sure that all issues are addressed.
35. Ms X complained to the Ombudsman. She says neither the school nor the Council has paid the money offered. She also says that the Council did not act quickly enough to provide alternatives when K could no longer go to school. It should have acted more quickly when the school said it could not meet his needs, and it did not give the clinical psychiatrist sufficient consideration when they reported K would be harmed by returning to school.

Was there fault by the Council causing injustice to K and Ms X?

36. The Council has acknowledged that it did not consider whether K could access the provision set out in his EHC Plan from October 2023 to May 2024. It has also said that it did not review the Plan quickly enough when he could not return to school. The Council has acknowledged that it did not address this at stage one of its complaints process.
37. I have considered whether the Council properly considered its duty to provide alternative education when K could not go to school. It is for the Council to decide on this but it should be able to show how it has reached its decision and that it has communicated this clearly to Ms X.
38. The Council first considered this at its panel in November 2023. It properly considered all the relevant factors. It took into account that the school had tried a reduced timetable, but this was not fully working. However, the school committed to try other measures and to keep the situation under close review. At this stage, three was a clear reintegration plan. There was no fault by the Council, in terms of alternative provision, when it decided to ask the school to continue with its efforts.
39. Ms X says that because the Council took too long to commission the clinical psychologist’s assessment it did not fully consider that K could not attend school because of his disability, and that attempts to reintegrate him would harm him. The Council agreed to commission the clinical psychologist in July 2023. It has acknowledged that it should have done this sooner. Had it done so the psychologist might have recommended that K does not return to school, but we cannot know that. It may have been that the psychologist recommended supportive measures alongside some home learning, which is what the school also offered.
40. The Council considered the situation again in January and February 2024. Although it was right to call an annual review (and it has acknowledged that it could have done this sooner), I am not satisfied that it properly considered again whether it should make alternative provision. It had been a few months since it had last considered this. The reintegration plan was not working and the school had said that it could not deliver the EHC Plan. It is also not clear that the Council considered the psychologist’s view (which by this stage were available) that K was being harmed by continued efforts to reintegrate him to school.
41. The Council did not consider its duty to make alternative provision again until Ms X raised this in March 2024. The Council told Ms X that the school was still inputting and planning to arrange a suitable education for K. However, it did agree to alternative provision in the form of the online school.
42. The Council told Ms X to pass the invoices to the school and also told the school to reimburse Ms X that amount she had paid for the online school. This may have been the most practical means to reimburse Ms X given that the Council had already given funding to the school. It is often acceptable for a council to ask the current school to arrange and fund alternative educational provision from the child’s current funding. However, the provision of education (either via the EHC Plan or via alternative provision) remains the Council’s duty. This means that when it became clear that Ms X could not agree the payments with the school, the Council should have intervened to make sure Ms X was reimbursed. The Council may then have to recoup some funds from the school, but this is not Ms X’s concern.
43. The Council’s shortcomings meant that K missed out on the provision of his EHC Plan from October 2023 to May 2024, and on alternative educational provision from January to May 2024. The Council’s failure to make sure Ms X was reimbursed the amount she had paid for the online school has caused her financial disadvantage.
44. Overall, the Council has agreed that Ms X should be paid £5,255.89 for the online school and £1,550 in respect of the lack of EHC Plan provision. It has also apologised to Ms X and has made sure staff have learned from the complaint, as well as attending refresher training on complaint handling. This is a reasonable means to remedy the injustice caused, and is in line with our guidance on remedies. However, it now needs to make sure the payments are made.

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Action

45. The Council will within one month of the date of this decision:
• Apologise to Ms X for the injustice caused by its short comings. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Ms X £5,255.89 and £1,550 in recognition of the amount she paid for the online school and the missed EHC Plan provision.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman