Summary: The Council was at fault for failing to secure the special educational provision in Mrs X’s child, W’s Education, Health and Care Plan. This meant W missed out on provision they needed. The Council was also at fault for failing to properly consider if it needed to arrange alternative provision for W when they struggled to attend school. This caused Mrs X avoidable uncertainty about whether the Council would have arranged alternative provision. To remedy W and Mrs X’s injustice, the Council will make symbolic payments and carry out actions to prevent similar fault in future.

The complaint

1. Mrs X complained the Council failed to give her child, W’s, school with sufficient funding to enable it to deliver the special educational provision in W’s Education, Health and Care Plan. Mrs X said this meant W’s wellbeing suffered, which affected the wider family.
2. While Mrs X complained only about W’s special educational provision, evidence shows there were also issues in how the Council considered whether to arrange alternative provision for W when their attendance dropped at school. She had already complained about this to the Council. I have therefore decided to investigate that matter also.

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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. 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. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. Mrs X complained to the Ombudsman in October 2025 so the period before October 2024 is late. However, I have decided there are good reasons for me to investigate the period from July 2024 because that is when the Council first became aware W may have needed alternative provision and it is only a short period of time prior to October 2024.
9. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. For this reason, our investigations normally end on the date the organisation issues its final response to a person’s complaint. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
10. The Council issued its final response to Mrs X’s complaint in February 2025. However, I have chosen to investigate up to July 2025, to encompass the remainder of the school year.

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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

Law and guidance

Education, Health and Care 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. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of educational placement.

14. 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)  
15. 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. 

16. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
17. There is a right of appeal to the SEND Tribunal against a council’s decision of what special educational provision to include in a child or young person’s EHC Plan, as well as the school named in it.

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 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.
19. 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)
20. 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.

21. 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: special educational provision

22. The Council issued an EHC Plan for W in 2022. The Plan included the following provision.
• One-to-one support throughout the day, for 32.5 hours per week. The purpose of the support was to facilitate W’s learning and help them in social interactions.
• Support with social interactions and their emotions from an “adult trained in supporting children with emotional literacy” for 30-60 minutes per week, either one-to-one, or in small groups. I will refer to this as emotional literacy sessions. The EHC Plan said the adult was to be a trained member of education staff, for example an Emotional Learning Support Assistant (ELSA) or counsellor.
23. In July 2024, W’s school told Mrs X and the Council that W was not receiving the full provision in their EHC plan because it did not have sufficient funding from the Council. Throughout the period I have investigated, W did not have one-to-one support across the day and only received the emotional literacy sessions intermittently.
24. The Council issued another EHC Plan in October 2024, which contained the same provision listed above.
25. In late October, the Council refused an application from Mrs X for a personal budget to pay for play therapy. Mrs X felt the emotional literacy sessions should be provided by a play therapist because she felt W’s needs had become too complex for an ELSA to manage. She also felt that for children of W’s age, a play therapist is equivalent to a counsellor. The Council denied the application because W’s EHC Plan did not specify a play therapist was necessary.
26. Following a complaint from Mrs X, the Council said:
• It gave W’s school the funding to commission 32.5 hours of one-to-one per week and for the emotional literacy sessions;
• It accepted that, for some reason, the school was overspending, which meant W was not receiving the provision in their EHC Plan in full; and
• It would not agree play therapy because it was not in W’s EHC Plan.

Findings

27. The Council owes W the duty to secure the one-to-one support and emotional literacy sessions in their EHC Plan. However, as set out above, we do not expect councils to constantly monitor whether children are receiving the provision in their EHC Plans. This means we normally do not find fault where a council had a reasonable expectation a child was receiving the provision in their Plan and was unaware provision was missing. This was the case here, up to July 2024, when the Council first heard W was missing out on provision. The Council was not at fault in that time.
28. From August 2024 until July 2025, the Council knew W was not receiving the emotional literacy sessions or one-to-one support and failed to arrange it for them, which was fault. The Council’s view was that it had provided the school with sufficient funds to deliver the provision. However, for whatever the reason, the school did not have enough money to deliver W’s provision. Once the Council became aware W was missing out, it should have taken prompt action to ensure they received their one-to-one and emotional literacy sessions as soon as possible. It could then have resolved the issue of funding with the school separately.
29. Overall, the Council’s failure to secure the full special educational provision in W’s EHC Plan caused Mrs X significant avoidable frustration. It also meant W missed out on the provision they were entitled to, between September 2024 and July 2025; an entire school year.
30. Mrs X feels W’s emotional literacy sessions should have been delivered by a play therapist. However, W’s EHC Plan states W’s sessions were for delivery by educational staff such as an ELSA or counsellor. There is no requirement for a play therapist. The Council was therefore not at fault for not arranging play therapy. If Mrs X wanted W’s EHC Plan to specify play therapy, it was open to her to appeal the October 2024 Plan to the SEND Tribunal, to have that provision added in.

What happened: alternative provision

31. In July 2024, W’s school asked the Council for funding to commission one day of alternative provision per week because W was struggling to attend full-time. At the end of August, the Council deferred its decision until it had more information from the school.
32. The Council’s Emotionally Based School Avoidance (EBSA) team became involved in W’s case in early October and gave the school strategies to try and address W’s attendance.
33. In late October, the Council refused the school’s application for funding for alternative provision because the provision the school had proposed may not have been the nearest appropriate provision to W.
34. Mrs X complained to the Council which responded in late November to say:
• It expected W’s school to explore whether there were other suitable alternative provision providers located closer to W’s home; and
• It expected the school to use the strategies recommended by the EBSA team and update the Council on its progress.
35. Mrs X asked the Council for a final response to her complaint. She said:
• The Council had all the information necessary to make a decision on the school’s July 2024 application for alternative provision at the time the school submitted it; and
• She did not feel the EBSA team had had a meaningful impact on W’s attendance.
36. The Council responded in February 2025. It said:
• It accepted it had all the information necessary to decide on the school’s July 2024 application for alternative provision funding at the time the school submitted it. The Council apologised for the mistake;
• It was sorry it had not sent the school a list of possible suitable alternative provision providers for it to explore; and
• “If the school are working towards reintegration and have a plan and if it is progressing (even if very slowly) then that should continue”. It said as a result, it would not agree alternative provision.
37. In early June, the Council agreed to fund alternative provision in the form of forest school for one day per week. W began attending, with the support of their parents.

Findings

38. When a council hears a child may not be receiving a suitable full time education, it should act decisively to establish whether the child is missing school because of exclusion, health or other reasons. The acid test for whether a child needs alternative provision is whether their school is “available and accessible” to them (R (DS) v Wolverhampton City Council [2017] EWHC 1660 (Admin)). In deciding if a school is available and accessible to a child, a council can consider whether actions by the school are likely to result in the child’s return to full-time education in the near-future. In such circumstances, we expect councils to review whether a school’s efforts have been successful and to be prepared to arrange alternative provision if those efforts have not worked.
39. The Council was at fault in how it considered W’s need for alternative provision for the following reasons.
• It deferred its August 2024 decision on the school’s July 2024 request for funding for alternative provision without cause. The Council accepts it had all the necessary information to make its decision in August. This delayed its consideration of W's need for alternative provision until October.
• The October decision concluded W’s school should look into other alternative provision providers. This indicated to Mrs X that it had decided W needed alternative provision, when that was not the case.
• In October 2024 the Council’s EBSA team was working with W’s school but there is no evidence the Council reviewed if that work had been successful.
• The February 2025 complaint response confirmed the Council’s view that it did not need to arrange alternative provision. However, this view was based on the idea that if there was a reintegration plan in place and was working, alternative provision was not needed. The Council had not checked if a reintegration plan was in place and Mrs X has confirmed it was not.
• There is also no evidence the Council reviewed what efforts the school was making to help W improve their attendance between February and June 2025, when it agreed forest school one day per week.
40. I cannot say, even on balance, whether the Council would have arranged alternative provision sooner if it had not been at fault. Therefore, Mrs X is left with considerable uncertainty about what provision W might have had, but for the fault.

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Action

41. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the uncertainty and frustration she felt because of the Council’s failure to secure all the provision in W’s EHC Plan and its failure to properly consider if it should arrange alternative provision for W.
2. Pay Mrs X £3,100 to recognise the impact of the lost special educational provision on W.
3. Pay Mrs X £500 to recognise her uncertainty.
4. Review what procedures the Council has in place to ensure it acts promptly when it hears a school is not providing all the special educational provision in a child’s EHC Plan, when it should be doing so. The Council will consider what it needs to do to prevent similar fault in future.
5. Review what procedures the Council has in place so that when it decides it will not arrange alternative provision because a child’s school is taking steps to help them return to full-time education, it reviews the child’s case to check whether those efforts have been successful or if it needs to reconsider its decision.
42. The Council will provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman