Summary: The Council failed to ensure Ms X’s children, Y and Z received suitable alternative provision or any of the specialist provision in their Education, Health and Care Plans between May and December 2024 when they could not attend school for medical reasons. The Council agreed to apologise and make a payment recognise the impact this had on Y and Z’s education and the distress and uncertainty caused to Ms X.

The complaint

1. Ms X complained about the Council’s handling of her two children, Y and Z’s education between 2022 and 2024. She complained the Council failed to provide them with suitable alternative provision or the specialist provision in their Education, Health and Care (EHC) Plans when they were unable to attend school during this period.
2. Ms X says the matter disrupted the children’s education and caused distress and uncertainty.

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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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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. 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)
7. 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

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)
9. Ms X complained to us in October 2025 which means events prior to October 2024 are late. I have used my discretion to investigate events from May 2024 onwards after the Council held an annual review of the children’s EHC Plans. At this point there is evidence showing the Council agreed a change of placement was necessary and the resulting injustice stems from this point.
10. I have not investigated matters before May 2024 as these are late. It was reasonable for Ms X to have complained earlier to us about inadequate provision between 2022 and May 2024 and there is no good reason to investigate that now.

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How I considered this complaint

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

13. 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.
14. 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 I: The name and/or type of educational placement.

15. 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)

Annual Reviews

16. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, 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.

SEND tribunal

17. 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.
18. 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
19. 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.

Alternative provision

20. 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.
21. 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)
22. 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.

23. 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

Background

24. Ms X has two children, Y and Z. Both Y and Z have special educational needs and diagnoses of autism. Both Y and Z have EHC Plans which named a mainstream secondary school (School 1) in section I.
25. Records show both Y and Z struggled with attendance at School 1 during 2022/23 and then stopped attending completely after the GP provided evidence they were not well enough to attend. Alternative provision was put in place under ‘medical needs’ from December 2023 with a mix of online and in person learning. This consisted of:
• 2 x 45 minute maths sessions a week
• 2 x 45 minute English sessions a week
• 2 hours of therapeutic provision with a HLTA (Higher Level Teaching Assistant)

May 2024 onwards

26. The Council held Y and Z’s annual review in early May 2024. Records of this show the Council agreed a change of placement was required. The notes show the medical needs provision remained in place but should be used to help the children reintegrate back into school.
27. Shortly after the annual review Ms X raised concerns with the Council that the alternative provision in place was basic and not sufficient and was causing the children’s mental health to suffer.
28. The Council wrote to Ms X in July 2024 stating it had decided to maintain the children’s EHC Plans. However, Ms X provided some updated assessments and medical information which led the Council to change its view and it decided to update and amend the Plans.
29. Records show that between May and September 2024 the Council liaised with School 1 about the alterative provision package in place. School 1 raised concerns that the funding was not enough. The Council told School 1 that it should put provision in place with matched with the specialist provision outlined in Section F of the Plans. The Council told Ms X that the medical needs provision already in place would continue.
30. The Council issued a draft EHC Plan in August 2024. It then issued both Y and Z’s amended EHC Plans in early September 2024. Both EHC Plans continued to name School 1 in Section I but included a note which said School 1 was ‘putting in place an alternative provision package whilst an alternative school placement is being sought at parental request’.
31. Section F stated in both Plans that Y and Z should receive a bespoke programme of alternative provision while they could not access the mainstream curriculum with half termly reviews. This included small class provision, managed audio/visual stimuli and transition planning.
32. Records show that in October 2024 the Council agreed to a 12 week continuation of the alternative provision package. The Council noted that the children’s engagement in online learning was variable. The Council said a clear reintegration plan was needed within six weeks and a review of the provision carried out at week 10.
33. Records show that in November 2024 Y and Z were only accessing three hours a week of medical needs provision. The alternative provision provider questioned whether funding would continue. It appears the Council directed the provider back to the school for issues around funding.
34. In December 2024 a special school agreed it would accept both Y and Z. Both Y and Z began attending the special school in January 2025 initially on a reintegration timetable. In March 2025 Ms X reported progress was slow but positive.
35. Ms X complained to the Council in February 2025. She said Y and Z had lost over two years of education while not attending School 1. She said the alternative provision package in place was inadequate and School 1 did not set any work. Ms X said this had a knock on effect which meant the children had struggled with transition back into the school environment at the special school.
36. The Council provided a stage one response in April 2025. It said its view was the EHC Plan provision was available at School 1 but Ms X decided it was not accessible. The Council said it understood both children were now settling into their new school.
37. Ms X escalated her complaint in May 2025. She said the EHC Plans were not used at all by School 1. She said the medical needs alternative provision was basic and never increased.
38. The Council provided a final complaint response in July 2025 stating it had nothing further to add.
39. Ms X remained unhappy and complained to us in September 2025.

My findings

40. At the time of the May 2024 annual review the Council had already accepted Y and Z were unable to attend school and therefore had accepted a Section 19 duty and remained responsible for their specialist provision in the EHC Plans. Limited alternative provision was in place at the time and shortly after the review meeting Ms X had raised concerns about the quality and quantity of the provision in place. There is no evidence showing how the Council considered the provision in place was suitable to meet Y and Z’s needs and there is no evidence of any meaningful oversight. On balance it is unlikely the three hours provision in place was suitable and it did not meet the specialist provision in the children’s EHC Plan. That was fault.
41. Following the annual review the Council issued amended EHC Plans for Y and Z. Although the Plans continued to name School 1 and Ms X had SEND tribunal appeal rights at this point it was not reasonable for her to use these rights. This is because the amended Plans outlined that a bespoke package of alternative provision should be in place pending a new placement being found.
42. Although the amended EHC Plans outlined a ‘bespoke package’ there is no evidence anything bespoke was put in place and the limited provision of three hours a week already in place continued. That was fault.
43. There is no clear evidence showing the Council had any meaningful oversight of Y and Z’s alternative provision between May and December 2024 in line with our expectations as outlined in paragraph 22. This includes consideration of increasing the provision or ensuring it met the children’s needs. The provision in place was limited to three hours a week. It did not provide the specialist provision which section F of the EHC Plans outlined including small group work, social skills and transition to post 16 education support. It is likely on balance that Z and Y could have coped with additional provision in place especially if combined with some of the specialist support outlined in the Plans. The faults mean on balance that Y and Z did not receive a suitable education or the specialist provision in their EHC Plans between May and December 2024. This also caused Ms X distress and uncertainty.

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Action

44. Within one month of the final decision the Council agreed to carry out the following actions:
1. Apologise to Ms X and pay her a total of £3150 to recognise Y and Z’s loss of education between May and December 2024 and the distress and uncertainty caused to her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Develop an action plan which address how the Council maintains oversight of alternative provision in place for children not attending school. The action plan should ensure the Council puts sufficient processes in place to keep oversight of these arrangements including whether children with Education, Health and Care (EHC) Plans are supported in receiving specialist provision.
3. The Council will provide us with a copy of the action plan within one month and then complete the action plan within three months of the final decision.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman