Summary: Miss X complained the Council failed to ensure her child, Y received a suitable education or the specialist provision in their Education, Health Care (EHC) Plan when they stopped attending school. The Council was at fault for failing to provide a suitable full-time education or the specialist provision in line with their EHC Plan between January 2025 and May 2025. The Council agreed to apologise to Miss X and make a payment to her to recognise Y’s missed education and for the distress and uncertainty caused.

The complaint

1. Miss X complained the Council failed to ensure her child, Y, received a suitable education when they were unable to attend school from September 2023. She said it has not provided Y with the specialist provision specified in their Education, Health and Care (EHC) Plan.
2. She wants the Council to provide Education Other Than at School (EOTAS) for Y and compensate her for a loss of earnings and the uncertainty and distress caused.

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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. 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.
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(i), 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. We cannot investigate late complaints unless we decide there are good reasons. I have used my discretion to investigate Miss X’s complaint from May 2024, when the Council issued Y’s EHC Plan to May 2025 when the Council issued its stage two complaint response.
9. I have not investigated any matters before May 2024. It would have been reasonable for Miss X to complain about these sooner and I have no good reason to investigate these matters now.
10. Matters after May 2025 would be the subject of a new complaint, to the Council in the first instance.

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How I considered this complaint

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

EHC Plans

13. 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.
14. 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).

Annual Reviews

15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, 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.

Alternative provision and Section 19 Duty

16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017).
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)).
19. 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).

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;
• 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; and
• 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.

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

Education Other than in School or College (EOTAS)

20. A council may arrange for any special educational provision that it has decided is necessary for a child or young for whom it is responsible to be made otherwise than in a school of college. A council can only do so if it is satisfied that it would be inappropriate for the provision to be made in a school or college. (Children’s and Families Act 2014, section 61)

What happened

21. Miss X’s child Y is of primary school age with SEN and an Education and Health Care (EHC) Plan which named School A in section I. In May 2024 they were not attending school A. Instead, Y attended two alternative provision providers which School A arranged for a total of three hours and forty-five minutes per week.
22. At the end of May 2024, a further final EHC Plan was issued for Y after a case review panel. School A was again named as the educational placement in section I. Miss X did not make an appeal to the SEND Tribunal.
23. In late November 2024 an online meeting was held with Miss X. The meeting discussed Y’s alternative provision, the option of personal budgets and proposed consultation with other schools. Miss X told the Council the current alternative provision package for Y was suitable but wanted to explore funding towards an Education Other Than at School (EOTAS) package. The Council held another case review panel but declined further funding and said school A needed to make referrals to available health and Council services who could provide support and interventions for Y.
24. In mid-January Miss X raised concerns about delays she said were being caused by the case review panel. She told the Council, Y was not accessing the services recommended at panel and was unable to attend even small group settings. She said she wanted to explore a personal budget and still wanted EOTAS for Y
25. At the end of January 2025, Miss X complained to the Council she said:
• the Council was not fulfilling its statutory duties under section 42 (Children and Families Act 2014) to provide and meet the needs of Y as outlined in their EHC Plan, including structured support, daily sensory and emotional regulation, targeted 1:1 small group interventions and occupational therapy led sensory support;
• the Council was not fulfilling its statutory duties under section 19 (Education Act 1996) as Y was only receiving a total of three hours forty-five minutes per week across two alternative provision providers;
• requests for Eye Movement Desensitization and Reprocessing (EDMR) and drama therapy had been refused;
• physical education (PE) was not being provided as a statutory element of the National Curriculum;
• the Council’s recommendation for a social communication resource (SCR) referral did not discharge the Council of its statutory duties;
• there needed to be a co-produced meeting with professionals to ensure alternative provision aligned to Y’s EHC Plan needs; and
• Y’s hours should be increased to a minimum of 15 per week, ensuring a pathway to full-time education.
26. In its response in mid-February 2025 the Council said:
• it would work with Y’s school and relevant providers to ensure the provision in their EHC Plan was delivered without further delay;
• it recognised Y’s current education package was inadequate and did not meet the requirements of Section 19. It would look to increase Y’s provision to a minimum of 15 hours a week, to include 1:1 tutoring, small group sessions, physical education, structured sensory and academic support;
• it recognised that an SCR referral would not meet Y’s needs and it had been taking proactive measures to address the gap in provision, including alternative providers to meet Y’s needs; and
• a co-produced meeting to develop an education plan for Y would be organised as soon as possible.
27. At the end of February 2025 Miss X again requested an EOTAS package for Y.
28. In March 2025 a panel refused EOTAS. It again advised School A to use local support through its mental health service and Occupational Therapy. It said school A should implement a suitable alternative provision package using top up funding under Section 19.
29. An annual review of Y’s EHC Plan was held in May 2025. School A advised it could no longer meet Y’s needs as outlined in their EHC Plan. School A requested the Council consult with alternative provision providers. Miss X again requested the agreed minimum of 15 hours of alternative provision for Y.
30. At the beginning of May 2025, the Council approved five hours of tuition for Y which Miss X accepted in June 2025.

The Council’s response to us

31. The Council told us at the end of June 2025 an EOTAS package was agreed for Y following an annual review and mediation in May 2025. It had issued this package alongside an amended final EHC Plan for Y at the start of August 2025.

Analysis

32. In May 2024 the Council named school A as Y’s educational placement in section I of their EHC Plan, with Y receiving their education via alternative provision. Miss X did not appeal this decision. If she was unhappy, it would have been reasonable for her to appeal at this point.
33. In November 2024 at the case review, the Council, made recommendations for School A to make referrals to health, support and Council services. Records show Y’s education and alternative provision was considered during this review meeting. Miss X said at this point that the alternative provision in place was adequate to meet Y’s needs. Therefore, we would not have expected the Council to take any further action or put more provision in place at this time. Given Miss X’s comments it is likely on balance, the provision in place was all Y could cope with at that time.
34. At this point the Council was aware that Y had no attended School A for a number of months. Given this we would expect the Council to consider holding an early annual review to discuss the suitability of School A. Not doing so was fault and caused a missed opportunity to try and resolve matters earlier.
35. The Council however failed to keep regular oversight of Y’s circumstances. There is no evidence the Council considered Y’s case again until it responded to Miss X’s complaint which she made in late January which is over two months after the November case review meeting. Miss X was clear in her complaint that she was unhappy with Y’s education and the level of alternative provision in place.
36. In its complaint response in mid-February 2025, the Council recognised Y’s current provision was not adequate under section 19, and it needed to ensure all the provision as outlined in Y’s EHC Plan was in place without further delay. It said it would look to increase Y’s provision from the three hours forty-five minutes a week to a minimum of 15 hours, put additional support in place and develop an education plan for Y. The Council failed to put any of this in place which was fault.
37. The Council took no further action until it approved five additional hours of tutoring after the annual review in May 2025. There is no evidence showing why the Council approved five hours rather than the agreed 15 and why none of the specialist provision in Y’s Plan was provided. That was fault.

Injustice

38. There is an element of uncertainty about how much education Y could have coped and what specialist provision could have been provided outside of a school environment. However, by not providing oversight at the start of 2025 and by failing to put in place additional support as agreed in its February 2025 complaint response, Y missed out on education and the opportunity to receive provision as directed by section F of their EHC Plan. The faults ultimately meant Y did not receive a suitable full-time education or the specialist provision in his EHC Plan between January 2025 and May 2025 (1.5 terms) which also caused distress and uncertainty.

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Action

39. To remedy the injustice caused, within one month of the final decision the Council agreed to take the following action:
1. apologise to Mrs X for the injustice caused by the failings identified during this investigation. We publish guidance on remedies which sets out our expectations for how councils should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Make a symbolic payment of £1,950 to recognise Y’s loss of educational provision as set out in their EHC Plan for one and a half terms and the distress, frustration and uncertainty this caused Miss X.
40. Within three months of the final decision the Council agreed to take the following action:

c) through training or briefing remind relevant staff of the requirement to maintain appropriate oversight and consider holding early annual reviews for children out of school and not attending their EHC Plan named placement.

41. The Council will provide us with evidence it has complied with the above actions.

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Decision

42. I found fault causing injustice, the Council has agreed to remedies to recognise the injustice caused.

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Investigator's decision on behalf of the Ombudsman