Summary: The Council was not at fault for deciding it did not owe a section 19 duty to secure suitable alternative education for Mrs X’s child Z when they stopped attending school in March 2025. However, it was at fault for the delay in making this decision. It was also at fault because it failed to issue Z with an Education, Health and Care (EHC) Plan within the statutory timescales, caused in part by a delay in getting Educational Psychologist advice. The Council has agreed to apologise and make a payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to:
• Implement alternative educational provision when her child Z stopped attending school in March 2025; and
• Failed to issue Z with an Education, Health and Care (EHC) Plan within statutory timescales.
2. Mrs X said Z missed a suitable education and specialist provision in their EHC Plan.

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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 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)
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 statement 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 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)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of alternative educational provision.
9. 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.
10. In January 2026, the Council issued a final EHC Plan naming a mainstream secondary school but Z did not attend. I cannot investigate further than January 2026 when the Council issued the Plan as doing so would involve looking at the Council’s decision to name a mainstream school and therefore trespassing on the Tribunal’s jurisdiction. Mrs X disagreed with the suitability of the school placement and exercised her right to appeal this to the tribunal.

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How I considered this complaint.

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

EHC Plan

13. A child or young person with special educational needs may have an 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. Where the SEND Tribunal requires the Council to make an Education, Health and Care (EHC) needs assessment or reassessment, the Council must notify the parents that it will make an assessment (notification starts the process) within two weeks. Following the assessment or re-assessment: (a) if the Council decides not to issue an EHC plan, they must so notify the parent or young person within 10 weeks of the SEND Tribunal order; and (b) if the Council decides to issue an EHC plan they must issue the finalised EHC plan within 14 weeks of the SEND Tribunal order.

Section 19

15. 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.
16. 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)
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;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• 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;
• 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; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

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.

What happened

19. Mrs X has a child Z, with special educational needs. In the 2024/25 school year, Z attended a mainstream secondary school. The school commissioned an educational psychology (EP) report to help Z at school.
20. The attendance records show Z stopped attending school at the end of March 2025. Mrs X said he was unable to attend as mainstream school could not meet their needs.
21. Mrs X asked the Council to carry out an Education, Health and Care needs assessment for Z in May 2025.
22. In July 2025, Mrs X made a stage one complaint to the Council saying the following:
• Y could not attend school and so was not receiving a suitable education; and
• Whilst the Council had agreed to the EHC needs assessment it was yet to commission an EP and occupational therapy (OT) assessment. Mrs X did not want the Council to rely on the school’s EP report as part of the EHC needs assessment as that was not commissioned for this use.
23. In August 2025, the Council issued a final complaint response agreeing to seek further EP advice.
24. In September 2025, Mrs X again told the Council Z was not attending school or receiving a suitable education. The following month the Council received further EP advice.
25. In December 2025, Mrs X made a formal request for the Council to consider its section 19 duties. The Council issued its decision to refuse alternative educational provision the same month as the school was providing suitable support to reintegrate Z into school which was as follows:
• A personal challenge and support plan;
• Regular education review meetings between the school and Mrs X looking to increase Z’s timetable;
• Full access to virtual learning;
• Catch up sessions;
• A key trusted adult to meet and greet them each morning;
• An adapted timetable so Z can access small class sessions;
• School has sought support from the Council’s autism team; and
• Access to homework club.
26. The Council also asked Mrs X for consent to make a referral to its early response hub so that it could put in place a multi-agency support plan in place to further support Z to reengage with the school.
27. In December 2025, Mrs X complained the Council was not meeting its section 19 duties.
28. The Council issued Y’s final EHC Plan at the end of January 2026. Mrs X appealed section B, F and section I to the SEND tribunal.
29. In February 2026, the Council issued a final complaint response saying:
• There is no further information which indicates their needs cannot be met by the school;
• The school is offering online support in addition to strategies and initiative to help Z attend school;
• There is no further information on Z having medical needs that mean Z requires alternative provision; and
• It would be taking attendance enforcement action against Mrs X.
30. Mrs X remained unhappy and complained to us.

My findings

EHC needs assessment delays

31. The Council agreed to carry out an EHC needs assessment for Z after Mrs X requested this at the end of May 2025. Following this, it should have followed the statutory timescales set out in the law and code. Therefore the Council should have decided whether to issue an EHC Plan by the start of September 2025 and then issued the final EHC Plan by the start of October 2025.
32. The EP advice should have been available to the Council by early August 2025 in order for it to have met the October deadline. It did not receive the EP report until mid-October 2025 which was a delay of 9 weeks and fault. This service failure came about due to an increase in requests for EHC needs assessments and not enough EPs to meet the demand.
33. After the EP gave their advice, the Council took too long to finalise Y’s EHC Plan. With EP advice in hand, it should have issued the final Plan in less than eight weeks after the EP advice, taking account of the timescales set out in the Code. This includes time to:
• write a draft EHC Plan;
• issue it to the family and give them 15 days to consider the draft EHC plan and provide their comments; and
• 15 days for the education establishment to comment.
34. The overall guidance is that final plans should be issued as quickly as possible.
35. This should have been completed by mid-December 2025 at the latest but was delayed until mid-January 2026. This was fault and caused Mrs X distress, frustration and uncertainty. It also delayed Mrs X’s appeal rights by over a month.
36. We have recently found fault with the Council on a similar case. Following this, the Council agreed to create an action plan demonstrating what action it is taking to ensure EHC Plans are issued within statutory timescales including a recruitment strategy to access and recruit more EPs. We will continue to monitor this through our case work. Therefore a further service improvement is not required.

Section 19

37. At the start of September 2025, Mrs X told the Council Z was not attending school and so was not receiving a suitable education. Mrs X had also informed the Council of this in early July, a couple of weeks prior to the summer holidays. Given this, we would expected the Council to have decided whether it owed a section 19 duty promptly and by mid-September at the latest. The Council did not consider or decide whether it owed a section 19 duty to Z until mid-December 2025, which was a delay of three months and fault. This caused Mrs X distress, frustration and uncertainty about Z’s education. However, on balance, had the Council made the decision in September it would not have changed the outcome as Z’s circumstances were the same.
38. In December 2025, the Council decided it did not owe Z a section 19 duty and so did not put alternative provision in place. This was due to the school providing various support to try and reintegrate Z into school as outlined in paragraph 25. The Council also wanted to first put in place a multi-agency support plan to further support Z to engage with the school. There is no evidence of fault in the way the Council reached its decision and therefore, I cannot question it. It was reasonable for the Council to allow the school to take steps to reintegrate Z into school and for the Council to trial a multi-agency support plan before it implemented alternative provision.

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Action

39. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the delays in issuing Z’s final EHC Plan and considering whether it owed Z a section 19 duty;
2. Pay Mrs X £400 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in issuing Z with an EHC Plan caused in part by the delay in obtaining advice from an Educational Psychologist, the delays in considering whether it owed Z a section 19 duty and the delay to her appeal rights; and
3. Provide guidance to relevant officers that section 19 decisions should be made promptly after a parent notifies the Council their child is not in school.
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. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman