Summary: Ms X complained the Council failed to provide alternative education provision to her son while he was unable to attend school. She also complained the Council failed to provide her son with the required special education provision during this period. Ms X also complained the Council delayed reviewing her son’s Education, Health and Care Plan and failed to consider its safeguarding duties. Ms X says the Council’s actions caused a deterioration in hers and her son’s mental health and left her son without a suitable education. We found fault by the Council. The Council has agreed to provide Ms X with an apology and a financial remedy and to provide training to relevant staff.

The complaint

1. Ms X complained the Council failed to provide alternative education provision to her son when he was unable to attend school. She also complained the Council failed to provide her son with the special education provision set out in his Education, Health and Care Plan during this period. Ms X also complained the Council delayed reviewing her son’s Education, Health and Care Plan and failed to consider its safeguarding duties to her son while he was unable to attend school. Ms X says the Council’s actions caused a significant deterioration in hers and her son’s mental health and left her son without a suitable education. She would like the Council to ensure it has a robust alternative education policy in place and to provide a financial remedy to recognise the distress caused.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
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)

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What I have and have not investigated

6. I have investigated the above complaint for the period September 2024 to October 2025.

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How I considered this complaint

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. Ms X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.
9. 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 found

Education, Health and Care Plans

10. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This 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. 
11. 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).
12. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
13. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
14. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special education provision specified, the school or placement, or that no school or other placement is specified in their EHC Plan
• decision not to amend an EHC Plan following a review or reassessment

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. 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 special educational provision, or alternative educational provision.
17. 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.

Alternative provision

18. 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 makes 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.
19. 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.
20. 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)
21. 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

The Council’s Section 19 policy

22. The Council’s Section 19 policy sets out the Council’s responsibilities when assessing the needs of children who are unable to attend school. The policy says:
• In all cases, councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions. The Council must take account of all available evidence and record the reasons for its decisions.
• For both authorised and unauthorised absences, the Council will assess whether Section 19 education provision should be arranged on a case-by-case basis.
• It is important that the local authority, home school and family work together through the processes described in the policy and in the best interests of the child. Failure of any one partner to engage fully could add delay to a decision being reached by the Council.

Principles of Good Administrative Practice

23. In 2018 the Ombudsman published a guidance document (updated in January 2025), setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
• Stating the criteria for decision making and giving reasons for decisions
• Keeping proper and appropriate records
• Explaining clearly the rationale for decisions and recording them

What happened

24. This chronology includes key events in this case and does not cover everything that happened.
25. Ms X’s son, Y, has an EHC Plan. In September 2024, Y started a placement at School A. School A is an independent specialist school providing education for children with autism, high levels of anxiety and social and emotional mental health needs.
26. Ms X says that in September 2024, she told School A that Y was experiencing severe anxiety and emotional meltdowns. Ms X asked to meet with School A; she said Y was at crisis point and his anxiety was linked to the school.
27. In November 2024, School A agreed a part-time timetable for Y.
28. Ms X met with School A on 1 April 2025. Following the meeting, Ms X emailed School A and the Council to summarise what was agreed. Among the points raised, Ms X said School A had agreed to trial a move to a different class group for Y and had agreed to carry out an emergency review of Y’s EHC Plan.
29. On 2 April 2025, School A emailed Ms X and the Council, outlining a provisional timetable and acknowledging that a review of the EHC Plan was scheduled for late April 2025.
30. On 7 April 2025, Ms X emailed the Council to ask for a local authority officer to be present at the EHC Plan review. Ms X said School A was trying to arrange a review for the first week back after the Easter break, but she considered it would be better to hold the review three weeks after the holiday. Ms X said this would give a better chance of seeing how the move to a different class group impacted Y. Ms X told the Council she would make this request to School A.
31. The Council responded on 10 April 2025, acknowledging Ms X’s email and that she had already contacted School A. The Council said it would contact School A after the Easter break to find out what difficulties Y was experiencing, and said it would get back to Ms X.
32. Y stopped attending School A completely in early May 2025. Ms X says Y was experiencing severe anxiety at this time.
33. On 8 May 2025, Ms X emailed the Council. Ms X said she considered School A could not meet Y’s needs and asked the Council to change the education placement to education other than at school (EOTAS). Ms X asked the Council to change the education setting named in Y’s EHC Plan and to review and identify appropriate SEN provision. Ms X told the Council a review of Y’s EHC Plan was already arranged for mid-May 2025.
34. On the same day, Ms X emailed School A and said Y would not be returning to the school. Ms X said Y’s mental health had deteriorated significantly, and he was not well enough to attend any school. Ms X told School A she would be requesting EOTAS from the Council.
35. The Council responded on 9 May 2025. It acknowledged Ms Y’s request for EOTAS but said it would have to wait for the EHC Plan review. The Council told Ms X that unlike requesting a school place, EOTAS was not a provision that can be requested by a parent. It said EOTAS can be considered when professionals and parents have evidenced there is no appropriate educational institution available that can meet the child’s needs. The Council said it expected all other avenues of educational provision to be explored before it would consider EOTAS.
36. School A also responded to Ms X on 9 May 2025, copying the Council into its response. School A said it believed it could meet Y’s needs and could work with him to access his education at the school. School A asked Ms Y to attend a meeting to discuss the matter further.
37. Ms X emailed School A and the Council on 11 May 2025, accepting a meeting date of 14 June 2025 for the EHC Plan review.
38. Ms X says School A rearranged the review meeting date.

Ms X’s complaint

39. Ms X complained to the Council on 5 June 2025. Ms X complained the Council had not made alternative provision for Y and had not carried out a review of his EHC Plan, despite his non-attendance at school. Ms X also complained the Council had not provided a co-ordinated safeguarding response to her concerns and had not taken steps to provide educational and social support, despite Y having an EHC Plan.
40. The review of Y’s EHC Plan took place on 22 June 2025. School A and Ms X recommended amending the plan due to significant changes. School A recorded that it considered it could meet Y’s needs and could continue to offer a placement in addition to a personalised re-integration package. Ms X considered School A could not meet Y’s needs and considered it had no detailed plan to address Y’s core anxieties. Ms X requested EOTAS.
41. The Council provided its complaint response on 27 June 2025. It acknowledged that it and School A had a duty to provide Section 19 education and said that while Y remained on roll at School A, the school had a duty to provide suitable education. The Council acknowledged however, that ultimate responsibility for this lay with the Council. The Council upheld part of Ms X’s complaint and said its Attendance Team had not passed on information about Y’s non-attendance to the relevant caseworker. It said the usual process for adjusting an EHC Plan was to request an emergency review. The Council said non-attendance would normally tigger this, but this information had not been passed on to the SEN team.
42. On 10 July 2025, the Council issued its decision following the EHC Plan review. The Council decided not to amend the EHC Plan, and instead, decided to maintain it with no changes. The Council recommended continuing engagement with its Education Welfare Service to support ongoing attendance and reintegration at School A. The Council did not agree to Ms X’s requests for assessments from an educational psychologist (EP), a speech and language therapist (SALT) and an occupational therapist (OT); it said SALT and OT provision could be accessed through the available provision at School A.
43. Ms X escalated her complaint on 14 July 2025. She maintained the Council had failed to provide alternative provision, had delayed carrying out a review of Y’s EHC Plan following his withdrawal from school, and had not provided a co-ordinated safeguarding response.
44. The Council emailed Ms X on 8 August 2025, stating it would not carry out a further reassessment of Y’s EHC Plan. It said the SEND code of practice states that reassessment will not normally be necessary where the local authority has undertaken a recent assessment and it is unlikely the child’s needs have changed significantly.
45. Ms X appealed to the Tribunal shortly after, appealing the Council's decision to maintain the EHC Plan. Ms X disagreed with the Council's description of Y’s SEN, the provision it set out in the plan and the naming of School A as the education setting.
46. The Council provided its stage two complaint response on 3 September 2025. It said that at the review meeting in June, School A had confirmed its ability to meet Y’s needs. The Council said it was working closely with School A to ensure provision was tailored appropriately and delivered consistently. The Council acknowledged Ms X’s requests for EOTAS and for assessments by an OT, SALT and EP, and said it’s SEND panel had considered this. The Council said it had informed Ms X it did not agree to these requests. The Council said School A is a specialist setting equipped to support students with anxiety-related needs; it said several professionals were actively involved in helping Y to reintegrate.
47. Ms X emailed the Council on 11 September 2025. She said although School A stated it could meet Y’s needs, the reality was that Y was unable to access the placement. Ms X requested an interim package consisting of a home tutor and a weekly placement at an animal charity.
48. Ms X remained dissatisfied with the Council’s actions and brought her complaint to the Ombudsman.

Analysis – Ms X’s complaint that the Council failed to provide alternative education

49. As previously stated, 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. 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’s disagreement about the SEN or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
50. Ms X appealed to the Tribunal regarding her disagreement with the Council’s description of Y’s SEN and the named educational placement, School A. The evidence therefore shows the reason for non-attendance is linked to Ms X’s disagreement with the named provision and educational placement. This means we cannot investigate a lack of special educational provision or alternative educational provision from the date of the Council’s appealable decision. In this case, that is the decision not to amend the EHC Plan, made on 10 July 2025. As a result, we cannot investigate a lack of special educational provision or alternative educational provision after 10 July 2025.
51. In its response to our enquiries, the Council said it considered the Section 19 duty did not apply because:
• The Council considered Y had access to provision that could meet his needs
• The Council determined this was an attendance case and it focused on enforcing attendance under Section 7 of the Education Act 1996
52. Section 19 is intended to cover circumstances in which it is not reasonably possible for a child to take advantage of existing suitable schooling. The ‘acid test’ is whether educational provision offered by the local authority is available and accessible to the child.
53. In practice, we would expect to see councils acting quickly, consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If, having considered all the relevant evidence, a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.
54. I acknowledge the Council’s comments that it considered the Section 19 duty did not apply in this case, and the reasons stated for this. However, I have seen no case notes or other documents to demonstrate how the Council made this decision having considered the available evidence and Ms X’s concerns. Neither have I seen any evidence of the Council’s communication to Ms X explaining its rationale for this decision.
55. This is not in accordance with the Council’s own Section 19 policy, nor the Principles of Good Administrative Practice. This is fault causing an injustice to Ms X, namely uncertainty as to how the Council considered its Section 19 duties and how it made its decision that the placement at School A was available and accessible to Y.

Ms X’s complaint the Council failed to provide the special education provision set out in the EHC Plan

56. In situations where a child is medically or otherwise unable to attend the school named on their EHC Plan, councils should consider how to make the provision specified in Section F of the plan. This is due to both the Council’s duty under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014.
57. The Council says it considered School A was able to meet Y’s needs and deliver the Section F provision specified in his EHC Plan. The Council says it determined Y had access to the provision and that this was a case of non-attendance. The Council therefore indicates it considered its Section 42 duties and determined that the special education provision was accessible and available to Y at School A.
58. I acknowledge Ms X strongly disagrees with the Council’s views regarding this.
59. I acknowledge the Council’s comments that it decided Y had access to available provision that could meet his needs. While the Council is able to make this decision having considered all the information available to it, we would expect to see a record showing how it considered its Section 42 duties and how it came to the decision that provision was accessible and available to Y. We would also expect to see a record of the Council’s explanation to Ms X regarding this decision.
60. I have seen no evidence (such as case notes, Council records or other documents) to demonstrate how the Council made this decision. This is not in line with the Principles of Good Administrative Practice, (namely keeping proper and appropriate records and explaining and recording the rationale for decisions). This is fault. The injustice to Ms X is the uncertainty as to how the Council made its decision regarding its consideration of its Section 42 duties. This also contributed to Ms X’s distress, given her strongly held view that Y was not able to access the special education provision available at School A.

Ms X’s complaint the Council delayed reviewing Y’s EHC Plan

61. Ms X complained the Council did not review or adjust Y’s EHC Plan following his period of non-attendance at School A.
62. In its complaint response, the Council acknowledged its Attendance Team did not pass the relevant information to the SEN caseworker. The Council upheld this aspect of Ms X’s complaint. The Council said non-attendance would normally trigger an emergency review of an EHC Plan, but this had not happened because of the failure to pass the information to the SEN team.
63. The failure by the Attendance Team to pass the information about Y’s non-attendance to the SEN team is fault.
64. However, this fault did not cause a significant injustice to Ms X because School A had already agreed to carry out a review of Y’s EHC Plan. Records dated 1 April 2025 show School A had agreed to carry out a review. This is before the date Y stopped attending school completely (6 May 2025). As a result, while the Attendance Team failed to pass on relevant information, this did not impact the timing of the EHC Plan review.

Ms X’s complaint that the Council failed to consider its safeguarding duties

65. Ms X raised concerns regarding Y’s time at School A and the subsequent actions of the school. Ms X’s concerns included allegations of bullying towards Y, School A’s alleged minimisation of incidents and its failure to listen to Y’s voice.
66. In its enquiry response, the Council said it reported Ms X’s safeguarding concerns to the Local Authority Designated Officer and to Ofsted. The Council said these concerns were not substantiated as anything other than disagreements with friends, and that these were discussed with the school, who deemed them to be ‘low-level and friendship based’.
67. However, in a separate response to our enquiries, the Council said it had been unable to locate any safeguarding concerns.
68. As a result, I find the Council’s response to our enquiries is contradictory. In addition, I have seen no evidence to show how the Council considered Ms X’s concerns, despite my requests for relevant records regarding this.
69. The lack of records to show how the Council considered Ms X’s safeguarding concerns, and the seemingly contradictory enquiry response, is not in line with the Principles of Good Administrative Practice. This is fault.
70. The injustice to Ms X is the uncertainty (and subsequent avoidable distress) as to how the Council considered her concerns.

The Council’s communications

71. In its enquiry response, the Council said, “For Section 19 decisions, the onus is on schools and/or parents/carers to refer to panel. This is in line with our policy”.
72. I disagree with the Council’s explanation as its Section 19 policy does not state the onus is on schools and/or parents to refer to panel. The policy acknowledges that Section 19 of the Education Act 1996 says that councils 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 makes the school inaccessible to the child.
73. The policy acknowledges the Council’s role in this and states “it is important that the local authority, home school and family work together [….] and in the best interests of the child. Failure of any one partner to engage fully could add delay to a decision being reached by [the] Council”.
74. It is therefore incorrect to state the onus is on schools and/or parents to make a referral to panel regarding Section 19 decisions.
75. In its communication with Ms X, the Council said EOTAS is not a provision that can be requested by a parent. This is incorrect, as parents can request EOTAS as part of a review of an EHC Plan. Councils must then consider the request and make a decision based on the specific circumstances of the case.
76. This incorrect information provided to Ms X is fault. However, I do not consider this caused a significant injustice to Ms X because she continued to request EOTAS as part of the EHC Plan review process. Any disagreement regarding the Council’s decision not to provide EOTAS as part of its EHC Plan review decision carried a right of appeal, which Ms X has exercised.

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Action

77. To address the injustice to Ms X, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Ms X for the fault identified. 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 in my findings;
2. Make a symbolic payment of £500 to Ms X in recognition of the uncertainty and distress caused;
3. Provide evidence of training to relevant staff regarding the Principles of Good Administrative Practice and the Council’s own Section 19 policy, specifically regarding the need to retain proper and appropriate records and to record the reasons for decisions made, and
4. Provide the Ombudsman with a copy of the Council’s revised policy regarding its process for passing information from its Attendance Team (regarding absence from school and the potential requirement for an emergency review of an absent child’s Education, Health and Care Plan) to its special educational needs caseworkers.
78. The Council should provide us with evidence it has complied with the above actions.

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Decision

79. I find fault causing injustice. The Council has agreed to take the above actions to remedy the injustice and I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman