Summary: Miss X complained the Council failed to secure the provision set out in Y’s Education, Health and Care plan and failed to make appropriate alternative provision available to him when he was not attending school. We do not find the Council at fault.

The complaint

1. Miss X complains the Council failed to secure suitable alternative provision for her son, Y after he stopped attending school. Miss X also complains the Council failed to secure the special educational provision set out in Y’s Education, Health and Care (EHC) Plan and refused to complete a new needs assessment she requested.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. 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)
8. 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

9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. Miss X previously complained to the Ombudsman about how the Council acted to secure alternative provision for Y. We considered Miss X’s complaints about this and issued decisions covering up to February 2025. I have not reconsidered whether the Council was at fault for not securing suitable alternative provision for Y prior to February 2025.
11. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
12. Prior to Miss X bringing this complaint to us, the Council issued a final response to her complaint in July 2025. I have investigated up to that point only.
13. Since then Miss X raised a new complaint with the Council about linked issues and it has now issued another final complaint response into those matters. However, as the new complaint and complaint response was after Miss X brought this case to us and we notified the Council of its subject matter, she will need to raise a new case with us if she wants us to investigate those new issues.
14. We cannot investigate complaints about events that were or could have been appealed to the Tribunal. Miss X complains the Council refused to enter mediation with her over the EHC Plan it issued for Y in December 2024. The Council has explained the reason for this is the content of that plan had been ordered by the Tribunal. For this reason, I have not investigated this aspect of Miss X’s complaint.
15. I have considered whether the Council was at fault for not securing suitable alternative provision for Y from February 2025 up until July 2025. I have also considered whether the Council was at fault for not securing the special educational provision set out in Y’s EHC Plan between July 2024 and July 2025, or for how it considered a request to reassess Y’s EHC needs.
16. Any mention below to events that took place outside of these dates is for reference only.

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How I considered this complaint

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

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What I found

EHC Plans

19. A child or young person with special educational needs (SEN) 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. 
20. 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)  
21. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.

Alternative provision

22. 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.
23. 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.

What happened

24. I have summarised below some key events leading to Miss X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
25. Y has SEN and his education is supported by an ECH Plan. Y had been attending School A and also receiving additional alternative provision sessions.
26. Prior to the start point of my investigation, the Council issued an amended EHC Plan for Y naming School B from September 2024. Miss X had appealed the content of Y’s EHC Plan to the Tribunal.
27. Y started at School B in September 2024. The provision set out in Y’s EHC Plan was available for him there and he continued to receive the additional alternative provision sessions.
28. In October 2024, Y was involved in a behavioural incident in School B. As a disciplinary response to this, School B proposed to have Y spend one day in internal isolation. Miss X said this disciplinary sanction was not appropriate for Y and refused to send him back to School B until it agreed to drop this. School B said the disciplinary sanction would be imposed on Y on the next day he attended.
29. In November 2024 the Council agreed to review Y’s EHC Plan as School B questioned whether it could meet his needs due to non-attendance. The
    Council did not agree a change of school was necessary at that point as it said the evidence showed Y had been settling in well prior to the behavioural incident.
30. Miss X said she wanted Y to return to school and provided a letter from Y’s GP explaining they did not feel the disciplinary sanction School B wished to impose was helpful towards this outcome.
31. The Tribunal heard Miss X’s appeal later that month and instructed the Council to issue an amended EHC Plan for Y. The Council issued a new EHC Plan for Y in December 2024, still naming School B, as instructed by the Tribunal.
32. Miss X told the Council she wished to enter into mediation to appeal the content of the EHC Plan as Y had now been out of school for some time and she believed the Council should consult with specialist settings. Miss X also told the Council she did not believe Y’s EHC Plan provision was available to him while he could not attend School B due to the threat of the disciplinary sanction causing him anxiety.
33. The Council maintained that School B was an appropriate setting for Y but agreed to consult with specialist settings.
34. In January 2025 Miss X provided another letter from Y’s GP, explaining they had hoped the disciplinary sanction would be suspended so Y could return to school. The letter asked the Council to consider homeschooling until the matter could be resolved. The Council considered this letter and decided the reason Y had not returned to School B was due to a difference of opinion between Miss X and the school on the disciplinary sanction rather than Y being unable to attend.
35. The Council sent consultations out to ten specialist school settings in January 2025.
36. In February 2025 Miss X provided the Council with another letter from Y’s GP. This explained they felt a return to School B would likely result in high levels of distress and anxiety. The Council considered this and decided Y was not able to attend School B and it now owed him a Section 19 duty to secure alternative provision.
37. That month the Council met with Miss X to discuss alternative provision for Y and he began attending online learning sessions in addition to the additional alternative provision sessions he had been receiving.
38. In March 2025 a mentor from the Council’s flexible learning team began regular visits with Y and created a plan for him to begin online lessons in maths, English and science.
39. Y began receiving the additional online lessons but started to miss these by the end of the month.
40. The Council visited Y and notes he was accessing provision 1:1 but was struggling with maths in particular. The Council explained provision remained available to Y at School B as set out in his EHC Plan while it continued to consult with other settings.
41. Y did not attend any of the online sessions at the beginning of April 2025.
42. The Council met with Miss X to discuss the alternative provision but Y continued to not attend the online sessions and in May 2025, Miss X explained he no longer wanted to engage with this. As it was not provided with any specific evidence to show that Y could not access the provision, the Council decided it was still appropriate for him and continued to offer it. The Council then increased sessions at the additional alternative provision Y had been receiving previously.
43. In June 2025, following a visit from Miss X and Y, School C agreed to offer Y a place from September 2025. The Council issued a new EHC Plan for Y that month, naming School C.
44. The Council has said its records do not indicate Miss X ever requested an EHC Needs Assessment between July 2024 and July 2025.

Analysis

45. At the start point of my investigation, School B was named on Y’s EHC Plan starting in September 2024. The Council secured Y’s EHC Plan provision at School B and it was available for him when he started there. I do not find the Council at fault for failing to secure EHC Plan provision for Y.
46. Y stopped attending School B in October 2024, but the EHC Plan provision remained in place for him there. The Council has said it was given no reason to suggest Y was unable to access the provision at School B, but rather this was a case of Miss X choosing not to send him due to a disciplinary sanction the school would impose. I understand Miss X’s frustration here, but it is not for the Council to tell School B how it should discipline pupils who have committed behavioural infractions. While Y was not attending School B, the provision remained available to him throughout the timeline I have looked at, and I do not find the Council at fault for failing to secure it.
47. As set out above, I have not reinvestigated whether the Council was at fault for not making alternative provision available to Y prior to February 2025. From February 2025, following receipt of a letter from Y’s GP, the Council agreed it was under a duty to make alternative provision available to Y.
48. It is not my role to say what alternative provision would be appropriate for Y, that is for the Council to decide. The Council’s flexible working team met with Miss X and Y in March 2025 to assess what alternative provision would be appropriate for him and put in place a programme of online learning to supplement the alternative provision sessions that were already in place. The Council appears to have followed the right process in deciding what alternative provision was appropriate for Y and I do not find it at fault here.
49. The Council kept in regular contact with Miss X and Y to assess the success of the alternative provision and whether this remained appropriate for him. While Y stopped accessing the online sessions, the Council was not provided with any new evidence to suggest this was because he was unable to access it. As a result, the Council maintained its view that the alternative provision remained appropriate for Y and kept it available to him up until the end point of my investigation. I do not find fault with the Council’s decision-making process here.
50. Miss X has said the Council refused to complete a reassessment of Y’s EHC needs. The Council has said it did not receive a request to do so within the timeframe I have investigated and had no reason to think it was necessary to do so. As I have not seen evidence the Council received a request to reassess Y’s EHC needs, I do not find it at fault for how it considered this. If Miss X wants the Council to reassess Y’s EHC needs, she would be free to request this.

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Decision

51. I find no fault with the way the Council acted to secure the special educational provision set out in Y’s EHC Plan or the way it acted to secure alternative provision for him.

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Investigator's decision on behalf of the Ombudsman