Summary: Mrs F complained the Council failed to provide education or secure the content of her child’s Education, Health and Care plan when her child stopped attending school. We found fault in the way the Council considered its duties under section 19 of the Education Act 1996 which has caused uncertainty. It also failed to issue a final education, health and care plan on time causing Mrs F’s appeal rights to be delayed. The Council has agreed to make a symbolic payment to Mrs F to remedy this injustice.

The complaint

1. Mrs F complained the Council:
1. Failed to provide education or secure the content of her daughter’s Education, Health and Care (EHC) plan from October 2024.
2. Named an inappropriate school in section I of her daughter’s EHC Plan.
2. Mrs F say this has caused her distress and uncertainty and for her daughter to miss out on her educational provision. She wants the Council to change the caseworker, name a suitable school, and make a financial remedy.

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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. 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)
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 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. 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)
10. 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

11. I have not investigated part b) of the complaint. This is because the Ombudsman cannot direct the Council to change the named placement in section I, only the Tribunal can do this. Mrs F appealed to the Tribunal so, as set out in paragraph 7, we cannot investigate.
12. Mrs F had a right to appeal to the Tribunal about the Council’s decision in August 2024 not to amend the EHC plan. However, my view is it was not reasonable for her to use her appeal right as at that stage she was happy with the plan and the school named in it. I am therefore investigating part a) of the complaint from October 2024 to May 2025, when the new final EHC plan was issued.

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How I considered this complaint

13. I spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries and the Special Educational Needs and Disability Code of Practice ("the Code").
14. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

15. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. Section 42 of the Children and Families Act 2014 creates an "absolute duty" on local authorities to ensure that the SEN provision specified in an EHC plan is delivered.
16. Parents have a right of appeal to the Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named. 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.

Reviewing EHC Plans

17. The council must arrange for the EHC plan to be reviewed at least once a year to make sure it is up to date. Councils can hold an early review where there has been a significant change in circumstances. Councils can delegate the arrangements for an annual review meeting to a child’s school, but the council retains responsibility for ensuring the review is conducted within the statutory timescales.
18. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Case law sets out that the council should issue an amended final plan within eight weeks of the notice that it proposes to amend the plan.

Alternative provision

19. Section 19 of the Education Act 1996 places a statutory duty on the council to 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.
20. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child.
21. 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.
22. We have published good practice guidance, Supporting children out of school (October 2025), on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision. 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.
• 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 into 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) so that issues are dealt with promptly by the right people, and that 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. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
24. 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.
25. The law does not specify when alternative provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
26. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. 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.
27. 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 SEN support is designed for the child’s normal classroom setting, but the alternative provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

The Council’s complaint procedure

28. The Council has a two stage complaints procedure. At each stage it aims to respond within 20 working days. If it needs more time, it will let the complainant know.

What happened

29. I have set out the key events; this is not meant to detail everything that happened.
30. Mrs F’s daughter, J, has special educational needs and an EHC plan which named a specialist school (“the School”). At an annual review in July 2024 it was agreed that some changes needed to be made to the EHC plan but that the School remained appropriate. The Council issued a decision on 16 August 2024 not to amend the plan.
31. Mrs F says that when J returned to school in September 2024, there were changes to her teaching and support staff which caused problems. She says J was inappropriately restrained, had poor personal care and was having meltdowns and struggling to attend.
32. There was an incident which resulted in a breakdown in the relationship between Mrs F and the School on 16 October. Mrs F withdrew J from the School and asked it to send work home for her. Mrs F told the Council that it was not safe for J to be at the School and asked for an early review of the EHC plan. The Council advised Mrs F to complain to the School.
33. On 11 November, the School told the Council it could no longer meet J’s needs. The Council says it asked for evidence of this but I have not seen any evidence of further correspondence between the School and the Council. Nor have I seen evidence that the Council considered whether the work being sent home for J was a suitable education.
34. Mrs F contacted the Council at the end of November. She said the home education had broken down and the School had refused to make a referral for tuition at home.
35. There was an early review of the EHC plan on 9 December. The School said that J needed a new placement in a school that could meet her needs. The report of the review was sent to the Council the next day. Following the review meeting, the Council needed to issue a decision as to whether it would amend the EHC plan by 6 January.
36. Mrs F complained to the Council on 16 December. She raised concerns about the School’s care for J and requested a review of the EHC plan and a new school placement.
37. The Council issued a decision not to amend the EHC plan on 14 January 2025. Mrs F and the School expressed concern about the plan continuing to name the School due to the breakdown in the relationship between Mrs F and the School.
38. The Council issued a notice to amend the EHC plan on 24 January. Mrs F asked the Council to consult all special schools in the area. The final EHC plan should have been issued by 3 March.
39. Over the next few months the Council consulted 18 education providers, including home tuition providers, but none were able to meet J’s needs or they did not have capacity.
40. The Council replied to Mrs F’s complaint on 20 February. It said it had decided the School could meet J’s needs but had issued an amendment notice after the School said its relationship with Mrs F had broken down. It was consulting with schools.
41. Mrs F remained dissatisfied and asked to escalate her complaint. She said J had been without education since October 2024.
42. The Council issued a final EHC plan on 9 May 2025 naming the School. Mrs F has appealed to the Tribunal about this.
43. The Council’s final complaint response was sent on 3 July. It said it was trying to find a suitable school placement and tuition was in place in the interim.
44. Mrs F came to the Ombudsman. She says J is still out of education.

My findings

45. The Council became aware that J had stopped attending the School on 16 October. It knew the School was sending work home for J. My view is that at this point the Council was entitled to allow the School an opportunity to reintegrate J. A plan for reintegration may mean there is no immediate role for the council in providing alternative education. So I do not find fault with not putting alternative provision in place in October 2024.
46. Councils may consider that a school is sending work home, but they must review this as work set by a school to be done at home (other than in the first five days of an exclusion) is not the same as teaching and does not count towards the full-time duty. Councils remain responsible for any shortfall in education so we expect to see councils deciding whether a school is providing a suitable education for the child. I have seen no evidence the Council considered this. Nor have I seen any evidence the Council worked with the School on a reintegration plan or reviewed such a plan to determine if it was working. This is fault which causes uncertainty about whether J was receiving a suitable education or was being reintegrated from 16 October to 11 November 2024.
47. On 11 November 2024 the School told the Council it could no longer meet J’s needs. The Council had to then decide whether the School was accessible to J and whether it owed J a duty under section 19. The law is clear that that the section 19 duty is on the Council, not the School. Whilst the Council can delegate provision of alternative education to the school to deliver, the Council remains responsible for ensuring that a child who cannot attend school is receiving a suitable education.
48. The Council says it considered the School was suitable because Mrs F had withdrawn J. But I have seen no evidence it discussed with the School why the School could no longer meet J’s needs or considered whether J was able to access the school or that it made a clear decision in November 2024 about whether it owed a section 19 duty to J. This was fault.
49. The failure to make a clear decision causes uncertainty about whether alternative provision (on top or instead of the work being sent home by the School) would have been made from 12 November. It may be that the Council would have decided that a suitable education was being made or that J could access the School. But this uncertainty is an injustice to J.
50. In addition, the Council has a legal duty to secure the provision set out in J’s EHC plan. The Council says this provision was available if J had attended the School, but its failure to decide whether the School was accessible or whether there was a suitable education in place adds to the injustice as any alternative provision should be suitable for J’s SEN but it is uncertain if it was.
51. Following the December 2024 annual review, the Council should have issued a new final EHC plan by 3 March 2025. It did not issue it until 9 May, which is fault causing a delay to Mrs F’s appeal rights. I realise the Council was looking for a school placement but it could have issued a plan naming a type of school, giving Mrs F her appeal rights.
52. I am not investigating the Council’s decision in April 2025 that the School was suitable as it issued an EHC plan naming the School which Mrs F has appealed.
53. The Council’s final complaint response was delayed by three months. This is fault which caused Mrs F some time and trouble.
54. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Our guidance on remedies says where we find fault has resulted in uncertainty or time and trouble a moderate, symbolic payment up to £500 may be appropriate.
55. In the last two years we have investigated a number of cases where we found fault in the way the Council dealt with its section 19 duty to arrange alternative education for children out of school. As a result of our recommendations, in 2025 the Council agreed to ensure its staff are clear about the Council’s legal responsibilities under section 19. As the fault I have identified in this case happened before those recommendations were made, I have not made any further recommendations for service improvement. We would expect to see an improvement in the way the Council considers its section 19 duties.

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Action

56. Within a month of my final decision, the Council has agreed to apologise to Mrs F for the faults identified in paragraphs 46, 48, 51 and 53 and pay her:
• £500 to remedy the uncertainty caused about whether J was receiving a suitable education or could have been receiving alternative provision.
• £200 to remedy the delay to her appeal rights.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman