Summary: The Council was not fault in the way it arranged alternative provision and secured special educational provision for Y between January 2024 and March 2025. The Council was at fault when it did not amend Y’s Education, Health and Care Plan to reflect their educational placement, but this did not cause Miss X a significant injustice.

The complaint

1. Miss X complained the Council failed to arrange suitable, full-time, alternative educational provision for her child, Y, when they were excluded from school in January 2024. She also complained that the Council did not secure the provision set out in the final (amended) Education Health and Care (EHC) Plan that it issued for Y in June 2024. Specifically, Miss X said the Council enrolled Y at a mainstream school that could not meet their special educational needs (SEN), despite the EHC Plan naming a special school. She said when Y was unable to attend that mainstream school, the Council did not provide them with suitable (or full time) alternative educational provision.
2. Miss X complained the Council’s faults have caused X lost educational provision, because of which they are repeating a year of school. Being out of school has impacted Y’s mental health and put them at risk of exploitation. Miss X said the Council’s actions have caused both her and Y stress, distress and uncertainty. She wanted the Council to provide a suitable remedy for the harm caused, including compensation.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. 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. 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. 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)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. 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) The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
10. 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.
11. Miss X appealed to the Tribunal about the educational placement named in the final (amended) EHC Plan the Council issued for Y in late March 2025. She also appealed the description of Y’s needs and the special educational provision included in that Plan. The Tribunal ordered the Council to name Miss X’s preferred specialist residential placement for Y. It also ordered that Y would repeat year 8 to catch up with any educational provision they had missed.
12. In addition to the matters set out in paragraph one, Miss X complained to us that the Council failed to secure the provision set out within the final (amended) EHC Plan it issued for Y in March 2025, and failed to provide suitable full-time alternative educational provision when Y was out of school after March 2025. I consider these matters are too closely connected to her appeal, and so I cannot investigate them.
13. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. This is called our general discretion (Local Government Act 1974, section 24A(6), as amended, section 34(B)) The courts have said we must not overlap with matters that have or could have been raised with the tribunal (R v Local Commissioner for Administration for the North and East Area of England, ex parte Bradford MBC [1979]). Therefore, even if we had jurisdiction to investigate any part of Miss X’s complaint that the Council failed to secure the provision specified in Y’s March 2025 EHC Plan, we would not do so because it might overlap with the matters which were resolved at the Tribunal. And, because the Tribunal ordered that Y should repeat year 8, it has provided a remedy for any educational provision (whether special or alternative) Y missed after March 2025
14. And so, I have not investigated matters after March 2025, except the Council’s response to Miss X’s complaint, as this is separable from her appeal.

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How I considered this complaint

15. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
16. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law, policy and guidance

EHC Plan 

17. A child or young person with SEN 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. 

Maintaining the EHC Plan

18. 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)  
19. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviewing EHC Plans

20. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
21. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
22. Where the council proposes to amend an EHC Plan, 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.

Section 19 duty

23. 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.

Exclusion 

24. In cases where a child is permanently excluded from a school, the law says that provision must be arranged for the child from the sixth day after the exclusion. This is set out in The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870), and accompanying statutory guidance.

Arranging person centred provision

25. 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.
26. 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.
27. 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.

Part-time timetables

28. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

What happened

29. This section sets out the key events in this case and is not intended to be a detailed chronology. I have investigated events between January 2024 and August 2025 only. Events before and after that period are included for background.
30. Y has SEN and has an EHC Plan. Y started at secondary school in September 2023 at the mainstream setting named in their Plan.

2024

31. Y was permanently excluded from their mainstream secondary school in mid-January 2024. The school immediately arranged for Y to attend an alternative provision for five hours per day, two days per week. The Council took over responsibility for this arrangement the following week. The Council then discussed with Miss X what alternative provision might be suitable for Y on the other three days. A fortnight after Y was excluded, the Council commissioned a place for them at a local Pupil Referral Unit (PRU) for the other three (full) days each week.
32. Y did not return to the alternative provision after the February half-term holiday, but the provision remained available to them for the rest of that term. The place at the PRU also remained available until the Easter break.
33. Between March and April 2024, the Councils consulted nine possible schools in its search for a permanent educational placement for Y: none offered Y a place.
34. During the Easter holidays, Miss X emailed the Council, saying that the PRU could not meet Y’s needs and the alternative provision was also unsuitable for Y. As a result, for the next half term (April-May 2024), the Council arranged for Y to have two hours of 1:1 tuition per day (that is, 10 hours per week), in person.
35. For the final half term of the academic year (June-July 2024), the in-person tuition was increased to 10 hours across four days, plus one full day per week at an outdoor activity centre (the Council arranged the latter in response to a request from Miss X).
36. In mid-June, following an annual review, the Council issued a final (amended) EHC Plan for Y. This named a type of placement; a specialist school but did not name a specific school. The Council consulted two possible settings: neither offered Y a place.
37. In early August, the Council met with Miss X to discuss the plan for Y’s education. It was agreed at that meeting that Y would attempt to return to mainstream education. The Council consulted Miss X’s preferred setting, the college (a mainstream secondary school). The college agreed it could meet Y’s needs and offered them a place.
38. In September, the Council continued to offer 10 hours of in-person tuition over four days (Y did not access this), plus one full day per week at an outdoor activity centre.
39. Y started attending the college in early October. The college put a part-time timetable in place to support Y’s re-introduction to mainstream education. Y attended school four mornings per week and continued to access the outdoor activity centre one full day per week.
40. From early November (the next half term), Y was on a full-time timetable at the college. They received several suspensions in November and so the college put a reduced timetable in place before Christmas: this consisted of mornings at the college and afternoons at a second alternative provision.

2025

41. This arrangement continued in January 2025, until Y was suspended for one day in mid-January. After that, Y refused to attend the college in the mornings, but continued to attend the second alternative provision in the afternoons. The Council arranged an early annual review of Y’s EHC Plan and that meeting was held in late January. It was agreed that the mainstream college could no longer meet Y’s needs and that the Council would consult with specialist provisions.
42. The college put online group tuition in place for Y on the two mornings a week that Miss X was present to facilitate this (Miss X said she would be unable to facilitate this on the other three mornings as she was at work). Y continued to attend the second alternative provision in the afternoons.
43. The Council issued a final (amended) EHC Plan for Y in late March. This named a type of school, a specialist school, as the educational placement. In April, Miss X submitted an appeal to the Tribunal about the educational setting named: she wanted the Council to name a specific residential special school.
44. Miss X complained to the Council in July that:
1. It had not agreed her preferred educational placement – she asked the Council to review its decision;
2. Its SEN and social care teams needed to work together to ensure Y’s EHC Plan was fully implemented and their meets were met;
3. It should undertake an urgent reassessment of Y’s needs; and
4. It should put interim educational support in place to meet Y’s needs until a permanent solution was agreed.
45. In mid-July, the Council responded to Miss X’s complaint. It said:
1. She had appealed the educational placement to the Tribunal and that would decide any change of placement;
2. The social care team had not, at the time the Council had made a decision about Y’s educational placement, had any involvement with Y;
3. The Council had only recently amended Y’s EHC Plan, and had not seen any new evidence that their SEN needs had changed significantly since then; and
4. Y remained on roll at the college, which had arranged online tuition and in-person alternative provision for Y. The Council’s SEN team was continuing to consult with special schools. It offered Miss X a meeting with the Council and the college to discuss other options for Section 19 provision.
46. On receipt of this response, Miss X escalated her complaint to stage two of the Council’s complaints procedure. She said:
1. The Council had refused to resolve the dispute about Y’s educational placement outside of the Tribunal process
2. Y had been assigned a Youth MASH [Multi-Agency Safeguarding Hub] worker, was known to Children’s Social Care and had had police involvement;
3. The Council had refused to reassess Y’s needs, although their circumstances had changed; and
4. Y was not accessing the online group tuition. That “stopped a few weeks after it began and has not been reinstated”. She said the Council was in breach of Section 19 because “there is no full-time education, no therapeutic support, and no access to the SEMH [Social, Emotional and Mental Health] provision identified in [Y’s] EHC [Plan]”.
47. The Council replied to Miss X’s stage two complaint in mid-August. It said:
1. In situations where the Council and parents are not in agreement with a school placement, the Tribunal is the appropriate process to follow. As part of this, the Council would “work with [Miss X] to seek to agree any appropriate amendments to [Y’s] EHC Plan and will, where possible, aim to see if agreement regarding placement can be reached prior to a formal Tribunal hearing”;
2. The Council’s children’s social care team had advised that it had recently offered Miss X a Single Assessment for the family. She had declined this, and so social care had no active involvement with Y. It said that “Social Care evidence needs to be based on current involvement, not any previous or closed work they have undertaken”;
3. The Council asked Miss X to confirm in writing if she still wanted a re-assessment. The Council would then consider that request via its SEND decision-making panel; and
4. Section F of Y’s EHC Plan did not include SEMH provision. The online group tuition had been paused when Y had been invited to attend the college’s on-site SEN provision. When Y stopped attending this (because Miss X was concerned Y was at risk of exclusion), access to the online group tuition had been restored. It remained available to Y, should they choose to access it. The Council advised Miss X to discuss with the college if another form of alternative provision, for example individual tutoring, would work better for Y.
48. Miss X brought her complaint to the Ombudsman in mid-August 2025.
49. In December 2025, the Tribunal named Miss X’s preferred specialist residential placement for Y. It was agreed that Y would repeat year 8 to catch up with any educational provision they had missed.

My findings

Alternative provision and special educational provision

50. When Y was permanently excluded from school in January 2024, the Council had a duty to arrange suitable alternative educational provision for them from the sixth day after exclusion. The school arranged alternative provision from the first day; the Council took over responsibility for this from day six. The Council was not at fault.
51. Miss X complained that the alternative educational provision arranged by the Council was not full-time. Full-time education is not defined, but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child. However, if a council is arranging one-to-one tuition, fewer hours may be appropriate, given the increased intensity of learning and depending on the child’s specific SEN. I have set out above the provision that the Council secured for Y between January 2024 and March 2025. On the balance of probabilities, I find that, during periods where the provision delivered was less than full time, this was for one of the following reasons. Either:
1. During some periods, some or all of the provision the Council arranged was intensive one-to-one tuition, and so fewer hours were appropriate, in the context of Y’s SEN; or
2. The Council had decided that Y could not cope with full-time provision (for example, when the college arranged a part-time timetable for Y as part of a re-integration package into mainstream education). This was a decision the Council was entitled to make; or
3. Miss X did not wish Y to attend the provision the Council had arranged, or was not available to facilitate Y’s attendance, or Y refused to attend. The fact that Y did not access some of the provision does not mean it was not available to them.

I find the Council was not at fault for the quantity of provision it arranged for Y.

52. Miss X complained that the alternative educational provision arranged by the Council was not suitable. The Council had a duty to “arrange provision based on the child’s individual needs”, and it should also have a review process to ensure the provision remains in the child’s best interests. Based on the sequence of events I have set out above, I find, on the balance of probabilities, that the Council arranged suitable alternative educational provision for Y at every stage between January 2024 and March 2025. Each time Miss X raised an issue about an educational provider, the Council arranged provision with a different provider. And, when Miss X requested a different type of provision (such as outdoor education) the Council arranged this without delay. The Council was not at fault.
53. Because the SEN support included in Y’s EHC Plan was designed to be delivered in their normal classroom setting, the Council was not always able to arrange this support be provided in the alternative provision settings. However, we do not consider this to be fault.

Y’s EHC Plan

54. When the Council was unable, following appropriate attempts in early 2024, to secure a suitable permanent educational placement for Y, it acted without fault in meeting with Miss X to discuss next steps. The Council consulted with Miss X’s preferred mainstream setting (the college) in August 2024 and secured a placement for Y there. However, the Council should then have reviewed Y’s EHC Plan and issued a decision to amend the Plan in order to name a mainstream educational setting. It was fault that it did not do so. This caused Miss X frustration in that the type of setting named in Y’s Plan did not reflect their reality, but this was not a significant personal injustice.

Other matters

55. I have considered the matters Miss X raised in her complaint to the Council, other than the elements relating to Y’s alternative provision, which I have addressed above. The Council was correct that the Tribunal process was the right one to follow to resolve disputes about educational settings. It was entitled not to include social care support in the June 2024 final (amended) Plan if that team was not involved with Y at the time the Plan was amended. And, because there was no social care provision in any of the EHC Plans in force in the period I’ve investigated, nor any other social care involvement, it was not fault for the Council’s social care team not to work with its SEND service in implementing Y’s EHC Plan. The Council was also entitled to refuse to re-assess Y if it had no evidence of a change in their needs (rather than their circumstances).

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Decision

56. I have found fault but this did not cause a significant personal injustice.

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Investigator's decision on behalf of the Ombudsman