Summary: Ms X complained about the Council’s handling of her child’s Education, Health and Care (EHC) needs assessment and the alternative provision arranged while her child was out of education. We have not investigated her complaint about the content of the EHC Plan because she has a right of appeal to the Tribunal. We do not find fault in the alternative provision arranged by the Council, but we do find fault in its failure to inform Ms X of her right to request a personal budget which resulted in a lost opportunity for Ms X to consider whether to make such a request. The Council has agreed to apologise to Ms X.

The complaint

1. Ms X complained about the Council’s handling of her child Y’s Education, Health and Care (EHC) needs assessment and the alternative provision arranged while Y has been out of education. Specifically, she complained that:
1. Section F of the EHC plan is vague, unquantified, and lacks sufficient legal detail;
2. She was not informed of her right to request a personal budget; and
3. The alternative provision arranged during Y’s time out of school has been inconsistent and unsuitable.
2. Ms X also complained that the Council refused to escalate her complaint to stage two of its complaints procedure.
3. She says the Council’s actions caused her considerable emotional and mental distress and resulted in Y missing education, which has negatively affected Y’s mental health.

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The Ombudsman’s role and powers

4. 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)
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. 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)
7. 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

8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision.  
9. Ms X can appeal to the SEND Tribunal regarding her concerns about section F of the EHC Plan. I consider it is reasonable for her to have done so. I have therefore not investigated this part of her complaint.  
10. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. I have investigated Ms X’s complaint about the failure to inform her of her right to request a personal budget and matters regarding alternative provision.   

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How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. Ms 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

Relevant legislation

Personal budgets

13. 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.
14. 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.

Alternative provision

15. 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.

Arranging person centred provision

16. 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.
17. 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.
18. 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 the parents.

What happened

19. In November, Y’s school contacted the Council to request alternative provision. Before this, the school had been working with Ms X and Y, including implementing a part-time timetable and providing work to complete at home.
20. In December, the Council held a multi-agency meeting with Ms X and the school to agree alternative provision. It was agreed Y would begin with personal, social, health and economic lessons, then start maths in the first week of term, followed by English.
21. In January 2025, a review meeting recorded that two maths sessions had taken place successfully, one had been missed due to illness, and Y had struggled to engage in another. It was agreed the tutor would discuss starting English lessons with Y.
22. Later that month, the Council issued Y’s first EHC Plan, naming their current school.
23. In February, a further review meeting noted Y was highly able and engaging well with maths and had started PSHE. Y said they did not want to begin English tuition at that stage and preferred to focus on returning to school after half term.
24. Y attempted to return to school but was unable to sustain attendance. In late March 2025, online English lessons were arranged. However, as Y’s mental health declined, they missed an increasing number of sessions.
25. In April, a review meeting recorded that Y had moved to a higher maths group and had attended two sessions. English lessons had been arranged, but Ms X raised concerns about morning sessions due to Y’s sleep pattern. The record noted Y had recently managed to attend school on some afternoons but was experiencing physical and mental health difficulties which were affecting their ability to engage consistently with sessions. It was agreed that tuition would continue in its current form and be reviewed once Y’s health had stabilised, at which point reintegration to school would be reconsidered.
26. Later that month, Ms X told the Council Y was unable to attend morning English lessons and had agreed they would not attend at that time. She said Y may be able to attend if lessons were later in the day and that Y required emotional support to access online learning, which she was not always able to provide. The Council subsequently placed Y on a waiting list for one-to-one in-person English tuition.
27. In May, Ms X complained to the Council. She said there was no clear reintegration or transition plan and the Council had failed to inform her of her right to request a personal budget as part of the EHC process.
28. A review meeting later in May recorded that Y had found tuition overwhelming once English was added, particularly due to early starts. This had affected their motivation to attend maths and attendance had stopped. A one-to-one English tutor had become available, and it was agreed this would begin after half term at school, increasing to two sessions if successful. Online maths would continue, accessed from school.
29. Ms X and Y visited an additional alternative provision setting. Y later said they wished to attend one day per week, and this arrangement was put in place.
30. Y’s school produced a provision map setting out a package of individualised support totalling 22 hours per week. This included tuition in English, maths and science, emotional regulation therapy, relationship-building work, and weekly monitoring.
31. In June, the Council responded to Ms X’s complaint. It said Y had ongoing medical needs and that a transition and reintegration plan would be completed by the relevant professionals. It said its records did not show whether a personal budget had been requested but explained one could be requested at the next review and provided information about how to do so.
32. It was later agreed that English tuition would increase to two sessions per week from mid-July.
33. Ms X escalated her complaint. She said the online provision had been unsuitable and ineffective, maths support remained inadequate, and the provision did not sufficiently address Y’s emotional needs. She maintained the Council had failed to inform her of her right to request a personal budget.
34. The Council declined the request to escalate the complaint to stage two of its complaint’s procedure, stating it had already responded to the issues raised.
35. In July, a review meeting recorded that face-to-face English tuition was going well and Y was keen to begin face-to-face maths, which was due to start the following week.
36. An early annual review of Y’s EHC Plan was held. This recorded that Y’s transition back into school would take place through one hour per week of one-to-one English and maths tuition within school, with half-termly reviews and the intention of increasing this to three hours per week.
37. Ms X then brought her complaint to the Ombudsman.
38. In September, a review meeting recorded that Y was progressing well in English and that the focus would remain on English and maths to support their wish to attend college.
39. In response to my enquiries, the Council said personal budgets are usually discussed during initial contact and co-production meetings. However, it accepted there was no documentary evidence that it had discussed the right to request a personal budget with Ms X during the EHC needs assessment process. It said information was available on its website, but there was no evidence it had provided this directly to Ms X before its stage one complaint response.

My findings

Personal budget

40. The Council has accepted there is no documentary evidence that it discussed the right to request a personal budget with Ms X during the assessment process. There is also no evidence it signposted her to relevant information before its stage one complaint response.
41. On balance, I find it more likely than not the Council did not clearly inform Ms X of her right to request a personal budget at the relevant time. This was fault.
42. A personal budget is not automatic on request; it is subject to consideration and decision by the Council. I cannot say, even on balance, that had Ms X been informed earlier, whether she would have requested a personal budget, and then whether the Council would have agreed to provide one. The injustice to Ms X is therefore one of lost opportunity to make an informed choice at the proper time.

Alternative provision

43. The evidence shows the Council arranged alternative provision from December onwards. This included a phased introduction of subjects, online and later face-to-face tuition, and additional provision identified through a separate setting. Review meetings were held regularly, and adjustments were made in response to Y’s engagement levels, health needs and preferences. When morning English lessons proved unsuitable, the Council placed Y on a waiting list for one-to-one tuition and later arranged face-to-face sessions in school. Provision was increased gradually as Y’s engagement improved.
44. The records consistently refer to Y’s physical and mental health difficulties and the impact these had on their ability to cope with sessions, particularly early starts and multiple subjects. The Council adjusted the timetable in response and moved towards reintegration through tuition within school, with half-termly reviews.
45. While Ms X considers the provision was inconsistent and unsuitable, the evidence shows the Council took reasonable steps to arrange and review alternative provision based on Y’s changing needs. The pattern of missed or reduced sessions was due to Y’s health and engagement, rather than a failure by the Council to arrange provision.
46. On the information available, I do not find fault in the Council’s arrangements for alternative provision.

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Action

47. To remedy the injustice caused by the above fault, within four weeks of the date of my final decision, the Council has agreed to apologise to Mrs X in line with our guidance on Making an effective apology, to recognise the lost opportunity to consider whether to request a personal budget.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. 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