Summary: The Council was not at fault for failing to provide Mrs X’s child Y with alternative educational provision between September 2024 and March 2025. I cannot investigate Mrs X’s complaint that the Council failed to secure her child, Y’s specialist provision in their Education, Health and Care (EHC) Plan between March and September 2025. This is because Mrs X appealed to the Tribunal which puts that period outside of our jurisdiction.

The complaint

1. Mrs X complained the Council failed to provide alternative provision for her child, Y, after September 2024 and did not secure the specialist provision in Y’s Education, Health and Care (EHC) Plan between March and September 2025. She also said the Council refused to carry out a Child in Need (CiN) assessment as directed by the Tribunal.
2. She said these failures caused avoidable distress, impacted on Y’s health, and left Y without social care support. She wants the Council to arrange the provision and support 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 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)
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)

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What I have and have not investigated

7. I have investigated the part of Mrs X’s complaint between September 2024 and March 2025 that the Council failed to provide alternative provision for Y in this period.
8. I have not investigated events from March 2025 onwards because Mrs X used her right of appeal to the SEND tribunal against the content and the type of placement named in Y’s EHC Plan. In line with paragraphs 15 to 17 below this puts the period March 2025 onwards outside of our jurisdiction.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs 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 law and regulation

EHC Plan 

11. 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. 

Content of an EHC Plan

12. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section H2: Any social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).
• Section I: The name and / or type of educational placement 

Social Care advice for EHC Plans

13. Support provided by Early Help or under section 17 of the Children Act 1989 (child in need) should be included in Section H2 of the EHC Plan. 
14. A Child and Family Assessment is a statutory social care assessment under the Children Act 1989. Findings from this often form the social care provisions in Section H2.

Appeal rights

15. 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.
16. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.

Alternative provision and the Section 19 duty

18. Councils must arrange suitable education at school or elsewhere for pupils of compulsory school age who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. Compulsory school age is from five to 16 and ends on the last Friday in June in the school year in which the child turned 16. Section 19 only applies for children of statutory school age.

What happened

Background

20. Mrs X has a child, Y who has autism. Y finished secondary school in June 2024 when they were 16 years old and was keen to continue education.

Matters subject to investigation

21. In September 2024, Y enrolled at a mainstream college. Mrs X said the college did not provide appropriate support, and following a difficult first day, Y stopped attending.
22. A few weeks later the college asked Mrs X why Y had stopped attending. Mrs X told us the college refused to provide any support for Y as they did not have an EHC Plan.
23. In December 2024 Mrs X requested the Council to carry out an EHC needs assessment.
24. Later that month an educational psychologist (EP) assessed Y.
25. In January 2025 the EP finalised Y’s report and the Council started consulting with potential placements for Y.
26. In February 2025 a mainstream college (college A) responded to the Council’s consultation process stating it could meet Y’s needs.
27. The Council said Mrs X did not think college A was suitable and her preference was for the Council to name Education other than in college (EOTIC) in Y’s plan.
28. The Council told Mrs X it could not specify EOTIC in Section I of Y’s EHC Plan. It explained that EOTIC can only be named when it was satisfied that no educational setting was able to deliver the provision outlined in the plan which was not the case here as college A had confirmed it could meet Y’s needs.
29. In March 2025 the Council issued Y’s final EHC Plan naming a type of placement ‘mainstream college’ in Section I of the plan.
30. In April 2025 Mrs X complained to the Council. She said it:
• failed to provide alternative provision for Y from September 2024,
• did not name a placement in Section I of the EHC Plan; and
• failed to provide the specialist provision set out in Y’s EHC Plan from March 2025.
31. In May, Mrs X appealed sections B, F and I to the Tribunal. As part of her appeal she informed the Tribunal she wanted social care provision and support listed in Y’s EHC Plan to encourage them to socially engage.
32. In July the Tribunal asked the Council to consider whether it was necessary for the Council to specify any other social care provision in Section H2 of Y’s EHC Plan.
33. In August 2025, the Council responded to Mrs X’s complaint. It stated it was not required to name a specific placement in Section I of Y’s EHC Plan. The Council upheld the complaint, accepting that it had failed to secure the specialist provision specified in Y’s EHC Plan since issuing the final plan in March. It apologised to Mrs X and said it would work with her while she developed an EOTIC package for the Council to consider arranging.
34. Later that month, Mrs X escalated her complaint to stage two of the Council’s complaints process. She stated that, although the Council had acknowledged it had failed to secure Y’s specialist provision since March 2025, it had taken no action to remedy this failure. She requested an enforceable plan setting out the steps the Council would take to ensure Y received the required specialist provision without further delay.
35. In September Mrs X asked the Council to add to her stage two escalation request the Council’s failure to carry out a social care assessment as directed by the Tribunal.
36. In September, the Council issued its final stage-two response to Mrs X. It explained that, following agreeing to the EOTIC package proposed by Mrs X, it had been in contact with her to finalise the provision offer. The Council added that this process had taken longer than anticipated because it wished to ensure Y was involved, all education providers required to be vetted, and there were further delays as Mrs X preferred to communicate in writing only.
37. The Council further stated that it had offered to carry out an Early Help - social care assessment for Y, which Mrs X declined, as she wanted Y to be assessed by its specialist team for children with disabilities. However, when that team carried out an initial assessment, it informed Mrs X that Y did not meet its eligibility threshold.
38. Following our enquiries, Mrs X explained that she withdrew her appeal to the Tribunal after reaching an agreement with the Council on the final EHC Plan, which it amended to include EOTIC in Section F.

My findings

Failure to provide alternative provision from September 2024

39. Y completed secondary school in June 2024 and was 16 years old. In line with paragraph 16 above, Y was no longer of compulsory school age when they started attending college in September 2024.
40. The Council had no duty under section 19 to arrange alternative provision and as a result not arranging alternative provision for Y when they stopped attending college in September was not fault.

Failure to secure Y’s specialist provision from March 2025

41. Part of Mrs X’s complaint is about Y’s lack of specialist provision between March and September 2025 after the Council issued their final EHC Plan in March 2025. Due to the restrictions on our jurisdiction as outlined above in paragraphs eight and 15 to 17 I cannot investigate Y’s lack of specialist provision during that period. This is because Mrs X had appealed to the SEND tribunal against both the content and the type of placement in Sections F and I of Y’s EHC Plan and Y’s lack of specialist provision during this period is not separable from the appeal.

Failure to carry out a CiN assessment as directed by the Tribunal

42. The Tribunal asked the Council to consider whether it was necessary for any social care provision to be included in Y’s EHC Plan. The Council decided Y did not meet the threshold for social care provision. If Mrs X was unhappy about the lack of social care support in section H2 of Y’s EHC Plan she could have challenged this during the Tribunal process before she withdrew from the process. Therefore, this part of the complaint is outside of our jurisdiction in line with paragraphs 15 to 17 above.

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Decision

I found no fault for part of Mrs X’s the complaint. The other elements were outside of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman