The Ombudsman's final decision
Summary: We find the Council at fault because it did not respond quickly enough to the complainant’s request for alternative education once her daughter (Y) stopped attending the school named in Y’s Education, Health and Care (EHC) Plan. The Council also wrongly changed the arrangement set out in the EHC Plan for Y’s physiotherapy and hydrotherapy (the therapies). The Council has agreed the recommended ways to remedy the avoidable distress and loss of education for Y. We are therefore closing the complaint.
The complaint
Ms X complained that the Council failed: to provide alternative education to her daughter, Y, since December 2024, in accordance with her Education, Health and Care (EHC) Plan when Y was unable to attend her special school due to her complex needs and severe anxiety; the Council wrongly changed its mind that Y was entitled to 52 weeks of physiotherapy, saying the Special Educational Needs and Disability (SEND) Tribunal decision of January 2024 meant that the physiotherapy would take place in the school. The complainant says Y has always had physiotherapy in a clinic (not at school) with a physiotherapist who is well known to her. In addition, the personal budget set out weekly physiotherapy over a 52 week period; the Council failed to pay the mileage costs and carers’ cost for Y to be taken to the above clinic; and the Council failed to ensure Y received the required hydrotherapy (30 minutes per week for 52 weeks).
Ms X says that, because of the Council’s faults, Y has missed out on essential therapies and education, and the complainant has been caused avoidable distress, time and trouble and frustration. Ms X has other children to care for.
In addition, Ms X says that she has been left maintaining Y’s EHC provision without financial support. She says that her mileage costs have not been paid and carers are also unpaid.
Ms X is asking for Y’s personal budget to reflect the agreed physiotherapy and hydrotherapy arrangements from March 2024 onwards; this is paid carers time for physiotherapy and hydrotherapy and entry to hydrotherapy sessions.
Ms X also asks that the Council reimburse all unpaid mileage and associated costs and ensure carers are paid correctly. And it should review its handling of personal budgets to prevent similar injustice to other families.
The Ombudsman’s role and powers
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).
The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
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) 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.
Tribunals though will not consider appeals just about a personal budget but will hear appeals about the educational provision to which a personal budget might apply.
It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) 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).
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated I have investigated Ms X’s complaints from September 2024 (when the complainant says the Council was aware of Ys difficulties attending the named school) to June 2025 when the Council issued a final amended EHC Plan which the complainant has now appealed.
Although Ms X asked that I look at matters from March 2024, when Y’s final amended EHC Plan was issued, I have not done so because Ms X complained to us in September 2025. I recognise that, between March to September 2024, Ms X was pursuing matters with the Council. But she did not complain to us until September 2025, some eighteen months later. Therefore, I consider it remains appropriate, and in keeping with our remit, to investigate matters from September 2024, a year before Ms X complained to us.
Ms X also asked me to extend the end period of my investigation. But the complaints after June 2025 are closely linked to matters which Ms X is appealing to the SEND Tribunal. While there are concerns about the personal budget (which a SEND Tribunal cannot deal with), Ms X’s appeal is primarily about the educational provision to which the budget applies.
Accordingly, my investigation ends in June 2025.
How I considered this complaint
I considered evidence provided by the Council and by Ms X. I also spoke to Ms X on the telephone. I have considered relevant law, policy and guidance as set out below.
I issued a draft decision statement to the Council and to Ms X. I have taken into account their additional comments before reaching my final decision.
What I found
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 Section J: Details of any personal budget required to fund the provision in the EHC Plan.
Personal Budgets 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.
A child’s parent or the young person has the right to request a personal budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a personal budget during a statutory review of an existing EHC Plan.
The final allocation of a personal budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
Maintaining the EHC Plan 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).
Alternative education 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 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.
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.
If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
The Council’s SEND policy The Council’s SEND policy (2022 to 2025) states that children and young people with special educational needs will have the same opportunities as their non-disabled pupils. It states the Council has several specialist support provision and alternative providers. The Council says that alternative provision is usually temporary until a child can return to school or it can find specialist provision.
The Council has a Behaviour and Inclusion Support Service.
Facts of this case Y has profound learning, language, communication and physical difficulties. Y needs carers to support her in all aspects of her daily living and she will require life-long support.
Y’s amended February 2024 EHC Plan (post the SEND Tribunal hearing) named the maintained specialist secondary school, School B. Y had attended School B since 2019. Her EHC Plan and provision was very school based. The Tribunal noted that Y’s speech sounds were disordered and it was difficult for unfamiliar adults to understand her.
It was also noted that a physiotherapist (not at School B) had worked with Y for four years, had built up a good rapport and therefore Y was able to tolerate 60-minute sessions rather than shorter sessions with a less familiar adult.
The January 2024 SEND Tribunal ordered changes to section B and F of Y’s EHC Plan (among other things). The amended EHC Plan of February 2024 stated that Y should receive 30 minutes of weekly hydrotherapy over a 52-week period, weekly 60 minutes of physiotherapy provided by a Qualified Paediatric Physiotherapist and staff should be trained to support a programme designed by the physiotherapist.
The EHC Plan also said that there should be weekly 60 minutes of Occupational Therapy (OT) to be carried out in the school and sessions should be accompanied by a consistent learning support assistant (LSA).
Ms X says that the personal budget contract of May 2024 set out a budget for the physiotherapy of £80 per week for 128 weeks, covering the period of March 2024 to July 2026.
Ms X says that this confirmed the physiotherapy would be provided 52 weeks of the year.
In respect of the hydrotherapy, the budget provided for 14 weeks plus mileage to be provided when the pool at School B was out of order.
Complaint (a): Y’s non-school attendance The Council was aware of Y’s non-attendance at School B prior to December 2024. The Council considered this was being managed through a collaborative approach between School B and the family. School B recorded 42 authorised absences and four unauthorised absences. There was a 68% attendance rate.
Ms X says that School B suspended Y on some days because of her difficult behaviours caused by her disabilities.
However, by December 2024, Y stopped attending School B. The Council was aware of this. It says that it arranged multi-agency meetings and the plan was to try to reintegrate Y back into School B.
2025 In mid-January, Ms X agreed to accompany Y on the school bus to take her to school. Ms X had to take Y off the bus because Y was so distressed. After this, there were no further attempts to get Y to School B.
At the end of January 2025, Ms X emailed the Council to say that School B was unable to deliver the Speech and Language Therapy (SALT) and Occupational Therapy (OT) at home. The Council told her that the Children and Adolescent Mental Health Services (CAMHS) had not assessed Y as being medically unfit to attend school.
Subsequently, two weeks later, in February, CAMHS changed its assessment and said that Y was unfit to attend school and recommended that she had a period out of school until May 2025. At this point, it was agreed that the OT and SALT would be provided at home.
At the annual review of Y’s EHC Plan in late February 2025, the Council agreed for these therapies (SALT and OT) to continue at home to support Y’s transition back into school. School B confirmed that it could continue to meet need. Ms X asked for an Education Otherwise Than At School (EOTAS) package.
In March 2025, the Council issued a final amended EHC Plan because Y was due to transfer to post-16 education. The Council told Ms X that this EHC Plan had not considered information from the recent annual review. That EHC Plan named School B.
Ms X could have appealed at this point. But I accept that it was reasonable for her not to do so as the Council had indicated it would be amending the EHC Plan further.
Between May and early June 2025, there was a reintegration plan, and five hours per week of tuition was provided by School B at home. The Council says that there were planned attempts to try to help Y to return to school. But I cannot see that this reintegration plan was successful.
The Council says that it did consider its section 19 duties at this point, although it does not specify when. But its view was that there was an available school for Y.
In June 2025, the Council issued a further EHC Plan, which Ms X has appealed. The EHC Plan names School B as the appropriate placement.
Complaints (b), (c) and (d): physiotherapy and hydrotherapy During January and June 2025, Ms X says she continued to take Y to her physiotherapy sessions at a local clinic and told the Council this. She said that she was concerned that the required carers were not being paid, nor was her mileage costs.
The Council told us that it paid for 38 sessions of physiotherapy between September 2024 and June 2025. In July 2025 (after the issue of the amended EHC Plan of June 2025), the Council’s Provision Panel considered Ms X’s request for an Education Otherwise Than At College (EOTAC) package. The Panel agreed that Y should receive an EOTAC package and this should commence in September 2025.
The Panel also recommended that the Council consider appointing an advocate for Y.
Ms X’s complaint to the Council In June 2025, Ms X formally complained about the Council’s failure to provide the required physiotherapy and hydrotherapy. Ms X said that she was asking for reimbursement between March 2024 to June 2025 for both physiotherapy and hydrotherapy sessions. Ms X says she provided proof of the sessions attended, mileage logs and support costs.
Ms X says that she had had to use the carers provided through Y’s social care provision for the physiotherapy. Ms X said that the carers had not been paid for supporting the therapy sessions.
The Council dealt with Ms X’s complaints under its corporate complaints policy.
In July 2025, at stage one, the Council told Ms X that it had agreed Y’s hydrotherapy would take place elsewhere while School B’s pool was unavailable. The Council said it had paid for sessions since January 2025 with two carers.
The Council also said that in May 2025 it had asked for receipts from Ms X and that she needed to sign a new personal budget. Ms X says she had provided receipts and was unwilling to sign a new personal budget given the Council was reducing the provision agreed at the 2024 Tribunal.
In respect of physiotherapy, the Council said that this was to be provided at school and advised Ms X not to make any changes to the personal budget. These changes had to be approved by the Council’s Provision Panel.
In August 2025, the Council sent its final response.
The Council explained to Ms X that the Tribunal of 2024 suggested that physiotherapy should be delivered alongside a teaching assistant and therefore it was reasonable to assume that this was in a school context. The Council said that, because Y remained on the school roll, and efforts were being made to reintegrate her, physiotherapy could have been provided at school.
The Council said that Ms X had a personal budget for physiotherapy, but she chose to fund physiotherapy outside school. Ms X explains that she did not choose to take Y to a clinic outside school. It was recognised by the previous Tribunal that it was important to preserve Y’s relationship with the outside physiotherapist, and this was an established practice.
In the Council’s comments in response to our enquiries, the Council says that it has paid for 38 physiotherapy sessions between September 2024 to June 2025. In respect of mileage, the Council says it has asked Ms X for confirmation of sessions attended and that mileage costs are paid in arrears.
The Council also says that it recognises Ms X’s view that continuity with a familiar and known physiotherapist is important for Y. But moving to a larger provider is a proportionate step to protect continuity of the physiotherapy (ie better cover if a therapist is unavailable). And the Council agreed that there would be a supported transition plan, along with help from CAMHS, to support Y through this change.
Ms X disputes this, saying preserving the current therapeutic relationship with the familiar physiotherapist is the important consideration.
Regarding hydrotherapy, the Council says that Ms X has received mileage to take Y to a pool, and a payment had been made for the period of April to June 2025. However, the Council said that Ms X had been overpaid because of being paid for hydrotherapy for 38 weeks rather than 14 sessions in the year. The Council also referred to overpayments which would be used to offset in future payments.
The Council says that it has arranged for Y to access hydrotherapy at three possible pools when School B’s pool was unavailable or when Y was not in school. Ms X says that this is not the case. The pool at School B was often unavailable and she looked for alternative venues. Ms X says that, because Y requires full support with transfers, she needs two-hour slots.
Costs I asked the Council to set out in writing what it has paid Ms X for (with dates) and it should calculate what it considers it still owes Ms X (in respect of provision, mileage and carers’ costs) when she has made the arrangements for these therapies to cover the period of September 2024 to June 2025.
The Council did provide this information, concluding that there were now no outstanding invoices to pay for the period of September 2024 to June 2025. I sent this to Ms X. She disagrees with the Council’s account.
Findings: Complaint (a): failure to provide alternative education Between September and December 2024, School B was trying to ensure Y’s continued education at School B. So, I do not find fault with the Council for this earlier period.
In January 2025, Ms X tried to get Y into School B but unsuccessfully. Ms X was very concerned about Y’s mental health at this stage and considered that it was not in her best interests to attend School B. Initially, CAMHS told the Council that Y was not medically unfit and therefore could attend school. Some weeks later, CAMHS revised its view and said Y was unable to attend school.
The Council says it considered whether it should provide alternative education (under section 19).
We expect to see councils acting quickly and 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 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.
I find that the Council has not provided the written evidence of how it considered its duties to provide alternative education particularly, when in February 2025, CAMHS said that Y was medically unfit to attend school for a period. I also cannot see that its decision was clearly communicated to Ms X with its reasoning.
Accordingly, I find fault in how the Council considered whether it should provide alternative education. Moreover, given that Y had been deemed medically unfit to attend school, the Council should have arranged alternative education, and it is more likely than not this would have entailed home tuition, as the only practical option for Y. Therefore, the Council’s fault has caused an injustice to Y because she has missed out on educational provision. Ms X says Y has regressed as a result.
Eventually School B provided five hours of tuition per week. Ms X considers this was inadequate. But I cannot say what would have been an appropriate amount given Y’s extensive needs and period out of education.
Complaints (b) and (c): failure to provide physiotherapy for 52 weeks for Y to attend this therapy at a clinic (rather than at school) and failure to pay the required mileage and carers’ costs Where this therapy should be provided, and whether it should be throughout the year, rather than only in school term time, is a matter to be considered by a forthcoming Tribunal hearing. So, I am not commenting on the merits.
I am also only looking at the period of September 2024 to June 2025 (when Ms X’s SEND appeal rights were triggered).
The issue is whether the Council wrongly changed the terms of the personal budget agreement which Ms X says provided for the physiotherapy for 52 weeks of the year.
Looking at the SEND Tribunal decision of January 2024, and in particular the personal budget arrangements, my view is that this recognised it was beneficial for Y to see her regular physiotherapist (outside School B) and it was also recognised that the physiotherapy would be over a 52-week period given Y’s extensive physical disabilities. So, I consider the Council is at fault for changing the arrangement until such time as a SEND Tribunal determines otherwise.
Ms X says that the lack of this provision has caused injustice because Y suffers from pain, muscle tightness and regression, which constant regular physiotherapy can help to alleviate. Ms X has also been caused avoidable time and trouble and distress, and financial loss.
Complaint (d): failure to provide the hydrotherapy Again, I am looking at the period of September 2024 to June 2025.
I consider that the January 2024 SEND Tribunal determined that hydrotherapy was required for 52 weeks of the year. Ms X says that this was provided at School B when its pool was open. But, at other times, Y had to be taken to an alternative pool.
As with the regular physiotherapy, hydrotherapy can ease some of Y’s physical difficulties and, without it on a regular basis, this increases pain and discomfort for Y. Accordingly, I find that the Council is at fault for changing the arrangement until such time as a SEND Tribunal determines otherwise.
Action
I find fault and injustice in respect of the four complaints.
Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £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 severity of the child’s special educational needs, whether any provision was made available and whether the school year was a significant one for the child.
Where a complainant has paid for services which a council should have, we will ask that those proven quantifiable expenses are reimbursed. However, there is now a disagreement between Ms X and the Council about what she has been paid and whether it covers all her expenses during the period of September 2024 to June 2025.
I am unable to resolve this. But the Council has agreed to discuss this directly with Ms X whereby she can provide or bring to the Council’s attention the information she has already provided, as the only way to resolve this current disagreement.
The Council has agreed that, within one month of the final statement, it will: apologise to Ms X for the faults and injustice which I have identified and make a symbolic payment of £500 to her for the avoidable distress and time and trouble. 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; the Council’s Provision Panel recommended an advocate for Y. Given she is approaching adulthood, the Council should appoint an advocate to help with ensuring Y has the support she requires; make a symbolic payment of £1,500 for failing to properly consider its alternative education section19 duties and provide alternative education when it was clear from CAMHS in mid-February 2025 that Y was unable to attend School B. I have taken into account that School B provided some home tuition in May/June 2025. Ms X can use this payment to benefit Y; the Council will arrange a meeting with Ms X to discuss her concerns about outstanding invoices for the period of September 2024 to June 2025. Ms X will need to provide proof of her quantifiable expenses, if she has not done so already; and it is not clear how parents/carers are able to ask for a review of Council decisions concerning personal budgets. The Council should provide us its written policy/guidance on this. If the Council does not have such a policy/guidance, then it should devise one.
The Council should provide us with evidence it has complied with the above actions.
Decision The Council has agreed the recommended ways to remedy the injustice. Therefore, I have completed my investigation and am closing the complaint.
Investigator's decision on behalf of the Ombudsman