Summary: Mrs X complains the Council did not deal properly with her son Y’s education, causing him to miss educational provision. The Council delayed making alternative provision and did not meet statutory timescales in issuing Y’s Education Health and Care Plan. Y suffered missed educational provision. The Council should apologise and make a symbolic payment to Mrs X.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not dealt with her son’s education properly because it failed to consider and provide s19 alternative education provision between December 2023 and July 2025.
2. Mrs X says her son missed educational provision and the family suffered avoidable distress.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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(i), 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).

Back to top

What I have and have not investigated

8. The Ombudsman would normally not investigate complaints made over 12 months before a complaint to the Ombudsman. In this case this would be October 2024.
9. I have exercised discretion to investigate matters before October 2024 because it is clear that Mrs X first raised the matter of Y’s lack of education with the Council in June 2024 and continued to do so multiple times afterwards.

Back to top

How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Law, guidance and policies

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. 

Timescales

13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

Advice

14. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

15. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
16. Those consulted have a maximum of six weeks to provide the advice. 
17. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

Jurisdiction

18. 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)
19. 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.
20. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
21. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Alternative Education

22. 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.
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.
24. 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.
25. 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.
26. 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.
27. 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)
28. 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.

29. Councils also have some flexibility with regard to the time taken to set up alternative provision. However, they must make provision from the sixth day in exclusion cases, and they should do so in medical cases where it is clear the absence is for more than 15 school days.

What happened?

30. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
31. Y is autistic and attended School A.
32. Mrs X requested the Council undertake an EHC Needs Assessment on 12 March 2024. In April the Council decided not to assess Y.
33. In June 2024 Mrs X emailed the Council informing them that Y was unable to attend school. The Council acknowledged Y’s non-attendance.
34. In July 2024 the Council decided it would complete an EHC Needs Assessment for Y. Advice was sought from an Educational Psychologist (EP).
35. In September 2024 Mrs X contacted the Council again, informing it that Y last attended school in May 2024. The Council acknowledged Y’s non-attendance again. The Council’s allocated an attendance officer to try to work with Y and School A.
36. Mrs X contacted the Council again in October 2024, advising that Y was still unable to attend school and had only been offered dog therapy.
37. In December 2024 Mrs X complained to the Council asking it to provide home tuition for Y.
38. In January 2025, the Council considered Mrs X’s request at a panel meeting. The Council determined that a final EHC Plan was required before provision could be agreed.
39. The EP report was produced at the end of January 2025.
40. In mid-February 2025, the Council replied to Mrs X’s complaint at stage 1 of its complaints process. It did not uphold her complaint. Mrs X immediately escalated her complaint to stage 2 of the Council’s complaints process.
41. Y’s final EHC Plan was issued on 21 February 2025. It named a specific school.
42. In June 2025, the Council responded to Mrs X’s stage 2 complaint. The Council upheld her complaint.

Analysis

Alternative provision

43. In its response to my enquiries, the Council said,” It was accepted that there was a delay putting provision in place however as stated in the stage 2 response, the request for Section 19 funding was considered by the appropriate decision-making panels but was not approved at the time, as further supporting information was required. Following the submission of the Educational Psychologist’s (EP) report, a draft EHCP was issued. As a result, the Section 19 funding request was discontinued, as it was considered that the EHCP funding would be sufficient to meet Y’s identified needs. However, it is accepted that provision took longer than anticipated to put in, and the stage 2 remedy did not address this.”
44. The Council acknowledged that Mrs X had informed it that Y was not attending school in early June 2024. The Council should have considered whether it needed to make alternative provision for Y by 19 June 2024. It did not do so. This is fault by the Council.
45. In September 2024, after Mrs X told the Council Y was still not receiving any education, an attendance officer from the Council worked with Y’s school. This was unsuccessful and it was clear by the beginning of October that Y was not going to be able to return to school.
46. The Council did not consider whether it should provide alternative provision for Y until its panel meeting in early January 2025. By this time Y had not received any education for 7 months. This is fault by the Council.
47. The panel discontinued its consideration of alternative education provision on the grounds of Y’s expected EHC Plan provision. Until a final EHC Plan is issued, the processes are separate and the Council should have made a decision about whether to provide alternative education for Y or not. This is fault by the Council.
48. I agree with the Council that there was delay in considering alternative education provision for Y. The beginning of this delay was 19 June 2024, when the Council should have consider the matter, as set out in paragraph 42. The end of the delay was 21 February 2025, when Y’s final EHC Plan naming educational provision for him, was issued.
49. This is fault by the Council. The delay was for approximately one and a half terms, taking into account school holidays. Y suffered injustice because he missed educational provision for this period of time.

EHC Plan timescales

50. During the course of my investigation, I asked the Council for information about how it considered Y’s EHC Plan, so as to understand the timescales of that, as it was apparent that Mrs X’s request for alternative provision was at least in part in parallel to the Council’s consideration of Y’s EHC Plan.
51. It became apparent that the Council also significantly exceeded the statutory timescales for issuing Y’s EHC Plan.
52. The Council should have issued Y’s EHC Plan by the end of July 2024. There was a delay of 6 and a half months before Y’s final EHC Plan was issued on 21 February 2025. This delay was caused by delays in obtaining the EP report for Y.
53. This is fault by the Council. Mrs X suffered delayed appeal rights. Y suffered missed special educational needs provision.

Action by the Council

54. The Council has identified necessary service improvements as a result of Mr X’s complaint, including:
• improved monitoring of children with low attendance or reduced timetables, with clearer escalation where absence is sustained. Officers are now required to explicitly consider and record whether section 19 duties are engaged where reintegration is not successful.
• Processes have been updated to require clearer information from schools about absence and support in place, alongside more regular review of reintegration plans.
• Where an EHC needs assessment is requested, officers must now consider and record whether the child is accessing suitable education, and whether section 19 provision should be considered alongside the assessment process.
55. The Council says these changes are intended to ensure earlier identification of children out of education and more timely provision. I consider these service improvements appropriate.
56. In its stage 2 complaint response, the Council upheld Mrs X’s complaint and offered a financial remedy of £250. The Council says it upheld Mrs X’s complaint due to delays in securing provision and in recognition of the resulting frustration and the effort required to pursue the matter. I do not consider the Council’s financial remedy sufficient.

The Ombudsman’s Guidance on Remedies

57. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.

Back to top

Action

58. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for the fault found. 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.
• Pay Mrs X £3,000 in respect of missed educational and special educational needs provision for a period of one and a half terms, equivalent to a sum of £2,000 per term.
59. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

60. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman