Summary: The Council was not at fault for not securing a suitable alternative education for Miss X’s child, Y, before June 2025. The Council was at fault for delaying issuing Y’s Education Health and Care Plan for around 10 weeks after a Tribunal order and for failing to secure the provision in Y’s Plan between April 2025 and July 2025. This caused Miss X frustration and uncertainty, and meant Y did not receive the SEN provision in the Plan for one term. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained about the Council’s decision to refuse to issue her child Y with an Education, Health and Care (EHC) Plan, which she says left Y out of school since January 2024. Miss X also complained the Council failed to provide suitable education for Y, wrongly refused support, and did not arrange alternative provision until June 2025.
2. Miss X said this caused her significant distress and the lack of suitable education affected Y’s wellbeing. Miss X also said she had to care and support Y at home, which affected Miss X’s health. Miss X would like the Council to apologise and pay compensation for the impact of Y’s lack of education. Miss X would also like the Council to review its EHC Plan processes.

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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). 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).
4. 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).
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. 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

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). Miss X appealed the Council’s decisions not to complete an Education, Health, and Care Needs Assessment (EHCNA) for Y and not to issue them an Education, Health and Care (EHC) Plan. Therefore, I have not investigated these matters.
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Miss X has disagreed with the Council’s actions since around November 2022 but did not complain until January 2025. I do not see a good reason why she did not complain earlier. Miss X complained to the Ombudsman in August 2025. I have investigated events from August 2024, which is 12 months before Miss X’s complaint.
9. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6). Miss X told the Ombudsman in March 2026 there were further issues with Y’s education provision in the new setting they started attending in September 2025. We have not seen evidence the Council has had an opportunity to investigate and reply to events after Miss X’s complaint in August 2025, so I have not investigated matters after that date. It is open to Miss X to complain to the Ombudsman once the Council has considered her complaint about this.

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How I considered this complaint

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

The Law

Education, Health and Care (EHC) Plans

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.
13. Where a Tribunal has ordered a Council to complete an EHC Plan for a child, the Council must do so within five weeks of the date the Tribunal sent the order.

Alternative provision

14. Section 19 of the Education Act 1996 says that the council 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.
15. 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.
16. 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.
17. 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.
18. 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.

The Council’s Education Support for Medical Absence process

19. If a child is too unwell to attend school for 15 days or more, the child’s school can make an Educational Support for Medical Absence (ESMA) referral to the Council. The referral allows the school to ask the Council to consider securing additional support for the child’s education and return to school when they are well enough to do so.

Background

20. In November 2022, Miss X asked the Council to complete an Education, Health, and Care Needs Assessment (EHCNA) for her daughter, Y. The Council decided not to complete an EHCNA for Y. Miss X appealed this decision and the Tribunal decided the Council should complete the assessment.
21. The Council completed the EHCNA in September 2023 and told Miss X the following month it would not be issuing an EHC Plan to Y. In January 2024, Miss X appealed this decision, and the Tribunal hearing was listed for January 2025.
22. In March 2024, Y’s school, school A, made an ESMA referral to the Council and said Y had missed around 31% of school days between 1 September 2022 and 31 August 2023. The following month, the Council decided Y’s medical information did not show they had a valid reason to not attend school, so the referral did not meet the ESMA criteria.

What happened

23. In November 2024, Y’s school made a second ESMA referral to the Council. The Council responded that Y’s medical information still did not show they had a valid reason to miss school, so the referral did not meet the criteria.
24. On 20 December 2024, the Tribunal ordered the Council to issue an EHC Plan for Y. In mid-January 2025, Miss X complained to the Council that its failure to issue the EHC Plan before the Tribunal process meant Y had not attended school for a year. The Council responded that Y was on the school’s roll during that period, and as they did not have an EHC Plan at the time, the Council expected the school to support Y in accessing education. A few weeks later, Miss X escalated her complaint to stage two.
25. On 7 April 2025, the Council issued Y’s EHC Plan and named a new school, school B, as Y’s setting. Y’s EHC Plan stated they needed provision including 60 minutes a week of personalised numeracy skills, 20 minutes a week of learning support and monitoring, one to two hours a week of social interaction support and one to two hours a week to support Y identify and regulate their emotions.
26. On 16 May 2025, the Council issued an amended version of the EHC Plan, as Y would not be able to start at school B until September 2025. This was because Y was in year 9 and school B’s provision did not start until year 10.
27. The Council responded to Miss X’s complaint in mid-June 2025. It apologised for the error in naming school B in Y’s EHC Plan without realising the placement could not start until September 2025. The Council offered Y alternative provision from June 2025 for the rest of that academic year, in the form of home tutoring. The Council offered to pay for the alternative provision to carry on over the summer holidays to support Y before starting at school B. The Council also offered to pay Miss X £800 to reflect Y’s eight weeks of missed education between 7 April 2025 and 13 June 2025, which was because it wrongly issued Y’s EHC Plan with school B named as Y’s setting. The Council also said it had reminded staff to check the suitability of provision before naming it in future EHC Plans.
28. In response to my enquiries, the Council said apart from the ESMA referrals, the school did not ask for any additional support for Y. The Council also said it did not believe it had a section 19 duty to provide alternative education to Y while they were on school A’s roll, as it did not receive any evidence that showed Y was medically unable to attend school or access education. The Council said it offered Y interim alternative provision in June 2025 to support Y once they were removed from school A’s roll.
29. Miss X told the Ombudsman she did not accept the Council’s offer of £800 or alternative provision for Y between June 2025 and September 2025. Miss X said this was because she received short notice of the alternative provision and felt it was unfair on Y to have tutoring over the school holidays.

My findings

Y’s EHC Plan and SEN Provision

30. The Tribunal ordered the Council to issue Y’s EHC Plan on 20 December 2024. The law says Councils must issue EHC Plans five weeks from the date it sent out the order. The Council should have issued Y’s EHC Plan by 24 January 2025 but did not do so until 7 April 2025. This was a delay of around 10 weeks. This was fault. It caused Miss X frustration and uncertainty about the SEN provision Y was entitled to.
31. The Council issued Y’s EHC Plan in April 2025, which listed the SEN provision they needed. The Council did not secure the provision for Y until they started at school B in September 2025. This was fault. It meant Y did not receive suitable SEN provision for one term of school, between April 2025 and July 2025. It also caused Miss X distress and uncertainty.
32. The Council accepted it did not secure provision for Y between it issuing the EHC Plan on 7 April 2025 and June 2025. It offered to pay Miss X £800 to remedy the injustice and reflect Y’s missed provision.
33. We typically recommend between £900 and £2400 per term in recognition of lost provision. I acknowledge the Council’s payment offer of £800, but this was to reflect eight weeks of missed provision, rather than the term Y missed.
34. The Council has an action plan in place to improve its SEND service, including issuing final EHC Plans within the statutory timescale and securing SEND provision. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

Y’s Alternative Provision

35. The law says if a Council finds out a child cannot attend school, it should consider the reasons for this and the relevant evidence and decide if it must provide the child with alternative education. After the Council found out Y was not attending school, it considered the medical evidence it received and decided it did not show a legitimate reason for Y to not go to school. The Council said the school’s view was that Y remained able to access education, and it put reasonable adjustments in place to support Y’s school attendance and wellbeing. The school’s adjustments included weekly wellbeing checks, online maths provision and protected daily form time interventions. Based on this, the Council decided the school remained available and accessible to Y and it did not have a section 19 duty to secure alternative education for Y.
36. I have considered the steps the Council took to consider the issue, and the information it took account of when deciding it did not have a section 19 duty to Y. On balance, there is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.
37. The Council offered alternative provision to Y between June 2025 and September 2025, but Miss X did not accept the offer. On balance, the Council was not at fault as it provided the option of provision for Y to prepare them for starting at school B in September 2025.
38. The Council also said it had reminded staff to check provision is suitable before naming it in future EHC Plans. As the Council has already taken reasonable steps, I have not made any service improvement recommendations on this matter.

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Action

39. Within one month of the final decision, the Council has agreed to:
1. Apologise to Miss X for the uncertainty caused by its delay issuing Y’s EHC Plan for 10 weeks and for the impact of failing to secure Y’s EHC provision for one term of school between April 2025 and July 2025. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
2. Pay Miss X £200 for the frustration and uncertainty caused by the Council’s delay in issuing Y’s EHC Plan for 10 weeks after the Tribunal order. This is in line with our guidance on remedies.
3. Pay Miss X £1000 to reflect the impact of Y’s missed SEND provision and the distress and uncertainty this caused Miss X. This is in line with our guidance on remedies.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman