Summary: The Council was at fault. It failed to meet its Section 19 duty to provide suitable alternative provision to Y between September 2024 and March 2025 which caused Ms X uncertainty and Y to miss education. The Council accepted fault and offered a suitable payment to remedy the injustice caused which is open for Ms X to accept.

The complaint

1. Ms X complained the Council failed to provide her child, Y with a suitable education between September 2024 and March 2025 and the specialist provision as set out in their Education, Health and Care (EHC) Plan since March 2025. She said this caused her and Y avoidable distress and negatively impacted on Y’s education and mental health and Y missed out on education for over a year.
2. She wants the Council to apologise, provide the support set out in Y’s Plan, offer additional provisions for Y to catch up on their education and address their anxiety, and make a financial payment to remedy the injustice to her and her family.

Back to top

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. 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.
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. 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).

Back to top

What I have and have not investigated

8. I have investigated whether the Council met its duty to provide alternative provision between September 2024 and March 2025.
9. I have not investigated events from March 2025 onwards when Y’s EHC Plan was issued because Ms X used her right of appeal to the SEND tribunal against the content in the Plan. In line with paragraphs 15 to 19 below this puts the period from March 2025 onwards outside of our jurisdiction.

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant law and guidance

EHC Plan 

12. 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. 

SEND tribunal

13. 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.
14. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN and the special educational provision specified in their EHC Plan.
15. 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.
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
17. We cannot trespass in any way on the jurisdiction of the tribunal (R v Local Commissioner ex parte Bradford [1979]) and 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 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.

What happened

19. Ms X has a child, Y who has autism and stopped attending school in September 2024 due to anxiety. Following an Education, Health and Care (EHC) needs assessment for Y the Council agreed to issue Y with an EHC Plan.
20. In January 2025 Y started receiving one hour per week of online mentoring. The Council told us the sessions were arranged by Y’s school where they remained on roll.
21. In late February 2025, the Council took over the commissioning of Y’s online mentoring provisions and informed Ms X that Y’s online provisions could be increased to five hours per week.
22. In early March Y’s online mentor confirmed she had capacity to mentor Y for three hours per week but another mentor had to be scheduled to deliver the additional two hours the Council agreed to fund.
23. A few days later the Council issued Y’s final EHC Plan, naming EOTAS in Section F.
24. Shortly afterwards Ms X told the Council Y was happy receiving three hours of online mentoring, but she felt Y would not cope with the increase in hours or any other form of online tutoring or alternative provision at the time due to their anxiety of leaving the home.
25. In May Ms X appealed Sections B and F in Y’s EHC Plan to the Tribunal.
26. In June, Ms X complained to the Council. She said Y stopped attending school in September 2024 and they had not received any appropriate education since then. She also said the Council failed to implement the provision specified in Y’s EHC Plan since March 2025, which stated EOTAS in Section F.
27. In July the Council responded to Ms X’s complaint. The Council said Y continued to be on roll at their school which had arranged alternative provision - three hours per week of online tutoring. Ms X escalated her complaint to stage two stating no suitable tuition had been offered.
28. In August the Council responded to Ms X at its stage two. It upheld Ms X’s complaint and acknowledged Y did not have full-time educational provision between September 2024 and June 2025 (only online mentoring until then) and offered her £200 per month for a period of 38 term time weeks - £1,900 plus £250 to her for uncertainty and avoidable distress. Total £2,150.
29. Ms X told us she refused the Council’s payment offer as she wanted the Council to be held accountable for its failings.
30. Unhappy about the Council’s response, Ms X complained to us.

My findings

31. The Council has a statutory duty under section 19 to arrange suitable education for children who are out of school because of exclusion, illness or other reasons, where they would not otherwise receive suitable education.
32. The Council accepted it did not provide Y with an equivalent full-time education between September 2024 and March 2025. During this time, Y received minimal provision—starting at one hour per week in January 2025 and increasing to three hours in March 2025. Although the Council then offered to in increase this provision up to five hours, Ms X chose to continue with three, indicating Y would not manage more due to anxiety. On balance, it is unlikely Y would have been able to manage significantly more provision between September 2024 and March 2025.
33. The Council has already offered to pay Ms X a remedy of £250 for the uncertainty caused and £1,900 for Y’s missed education between September 2024 and June 2025. In line with paragraph 9, I have not investigated events after March 2025, when the Council issued Y’s EHC Plan, giving Ms X the right to appeal which she used. I am satisfied the remedy offered is in line with our guidance and suitable for the period I have investigated from September 2024 to March 2025. Although Ms X previously told us she did not accept the offered remedy, it is open to her to do so now following this decision.
34. The Council has an ongoing SEND improvement plan which is addressing how it considers its Section 19 duties. We will continue to monitor progress of this through our casework and so, further service improvement recommendations are not required at this time.

Back to top

Decision

35. I have found fault, however the Council already made a suitable offer to remedy the injustice caused by the fault which is open for Ms X to accept.

Back to top

Investigator's decision on behalf of the Ombudsman