The Ombudsman's final decision
Summary: We found fault by the Council because it delayed completing an Education, Health and Care needs assessment for Mrs X’s child, and did not provide them with alternative education provision when they could not attend school. The Council’s actions caused Mrs X distress and caused her child to miss out on education. The Council has agreed to apologise and make a payment to recognise the injustice caused.
The complaint
Mrs X complained the Council failed to arrange alternative education provision for her child, Y, when they could not attend school. She said this caused Y to miss out education.
Mrs X also complained the Council delayed an Education, Health and Care (EHC) needs assessment for Y which caused more educational loss for them.
She said the Council failed to send a suitability senior member of staff to mediation and also said its communication with her was poor. She said this added to the delays and her distress.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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.
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) 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).
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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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.
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)
What I have and have not investigated EHC Plan appeals The law says we cannot investigate anything connected to an appeal right to the Tribunal, which was reasonable for someone to use. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to a parent or young person’s disagreement about an appealable EHC Plan decision, we cannot investigate a lack of special educational provision, or alternative educational provision.
The period we cannot investigate starts from the date the 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.
In the period I have considered, Mrs X received two appealable decisions. She said Y’s attendance was significant and relevant to both decisions. Because of the limits on our ability to investigate matters linked to an appeal right, I have therefore not investigated: February 2025 until April 2025 (from when the Council issued a refusal to assess decision until it changed its decision); and, July 2025 until October 2025 (from when the Council refused to issue an EHC Plan until it conceded the appeal about this).
However, I have referred to events that happened during those periods to give context where needed.
I have ended my investigation into the Council’s actions at the point the Council sent Mrs X its final response in September 2025. However, I have considered any ongoing injustice caused to her and Y by the Council’s actions until December 2025.
Proportionality As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
On the broader point, we cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
How I considered this complaint
I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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 found
Relevant law and guidance Special educational needs and disability code of practice: 0 to 25 years Statutory guidance ‘ Special educational needs and disability code of practice: 0 to 25 years ’ (‘the Code’) provides guidance on the duties councils and other bodies have towards children and young people with Special Educational Needs (SEN).
Where the Code says councils ‘must’ do something, it means this is a legal duty. Where it says councils ‘should’ do something, it means they must consider what the Code advises them to do. If they do not follow it for any reason they must explain why.
Alternative education provision Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
Where possible, the school should manage the child’s health needs so they can continue to be educated there with support, and without the need for the council to intervene. The council does not need to become involved unless it has reason to believe the education the school is providing is unsuitable. (Statutory guidance: ‘ Arranging education for children who cannot attend school because of health needs ’, December 2023.)
Councils are expected to decide whether alternative provision should be provided under section 19 where pupils are likely to miss more than 15 days of school due to mental health issues. (Guidance: ‘ Summary of responsibilities where a mental health issue is affecting attendance ’, February 2023.)
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.
We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
Supporting children out of school (October 2025) 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.
Education, Health and Care assessments and Plans A child or young person with SEN 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.
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 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.
What happened This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
Y stopped attending school full-time in January 2025 and started to have frequent absences because of emotional school-based avoidance. Mrs X also applied for an EHC needs assessment for Y.
At this point, the school made the Council aware of Y’s attendance issues and asked the Council for support. It had already tried to support Y, and it shared its support plan with the Council. The Council worked with the school and attended meetings with it over the year to discuss Y’s attendance and advise the school.
In February 2025 the Council told Mrs X it would not assess Y’s EHC needs. Mrs X asked the Council to attend mediation with her, to discuss its decision.
In April 2025 Mrs X and the Council attended mediation. The Council’s representative at the meeting was not senior enough to make a decision on the day, but agreed to discuss the case with colleagues after the meeting and then give Mrs X an answer. Four days after the mediation meeting, the Council told Mrs X it had changed its decision and it now agreed to assess Y.
In July 2025 the Council said it would not issue Y with an EHC Plan. Mrs X again asked for mediation to discuss the Council’s decision.
At mediation, the Council agreed it would reconsider and then tell Mrs X its new decision. Less than a week after mediation, it told Mrs X it still refused to issue an EHC Plan for Y. Mrs X appealed the Council’s decision to the Tribunal.
Mrs X then complained to the Council. It accepted it had delayed Y’s EHC needs assessment. It said there was no fault in how it considered its section 19 duty. It told Mrs X there was no evidence the school had applied for extra funding for alternative educational provision for Y and so it was not aware Y was struggling to attend school. It said the school was responsible for contacting the Council if it needed further input with Y’s attendance.
After completing the Council’s complaints process, Mrs X complained to us in September 2025. She said the Council had failed to arrange any alternative education provision for Y since they had stopped attending school full-time in January 2025.
Analysis Mediation The Council told us that because of capacity issues, it cannot always send a senior member of staff with decision-making authority to mediation meetings, despite the Code saying councils should do this. The guidance does not say councils ‘must’ do this.
The Council said caseworkers who attend mediation will meet with senior staff before mediation meetings to ensure they can effectively represent the Council.
In both cases of mediation for Y’s EHC needs assessment, Mrs X received the Council’s final decision within a few days of the meetings.
Therefore, the Council’s approach did not cause any significant delay to Y’s case. Because of this, there is no significant fault in the Council’s approach. It has explained why it departed from what statutory guidance says it should do and there is no evidence the Council’s approach causes significant injustice to children and young people, or their parents.
Communication Within my investigation, I have only considered the Council’s actions linked to Y’s EHC needs assessment and alternative education provision.
From the evidence I have seen, there was no significant fault in the Council’s communication with Mrs X about these matters.
Although Mrs X was frustrated with how the Council handled these cases, it kept in touch with her and updated her when anything changed.
EHC needs assessment delays The law says Councils should decide whether to carry out an EHC needs assessment within six weeks of a parent asking for an assessment.
In Y’s case, the Council at first refused to assess within six weeks of Mrs X’s request, which ended the process. When the Council later changed its decision after mediation, this restarted the assessment at week six.
Councils should then go on to decide whether they will issue an EHC Plan or not by week 16, or 10 weeks after the decision to assess.
In Y’s case, the Council decided it would not issue an EHC Plan for Y about 14 weeks after its decision to assess. This was a delay of four weeks, which was fault.
The Council’s fault caused Mrs X and Y frustration and delayed their right of appeal to the Tribunal.
The Council has already apologised to Mrs X for the delay. This apology was appropriate to remedy Mrs X’s and Y’s injustice.
Alternative education provision: record keeping In response to our enquiries, the Council told us it failed to keep written records of its decision-making around Y’s alternative education provision. This was fault. Our guidance says we expect Councils to keep clear written records in section 19 cases, and we will find fault where they do not.
This fault caused injustice to Mrs X and Y because it meant we could not check all the actions in Y’s case, which caused them uncertainty.
Where the Council did not keep written records, I have used other available evidence to decide what was more likely to have happened in Y’s case Alternative education provision: fault The Council first became aware of Y’s attendance issues when Mrs X asked it to assess Y in January 2025.
On balance, it is more likely the Council did not consider its section 19 duty at this point because there was no record it contacted Mrs X or school to ask them for more information about Y’s attendance. This was fault.
However, once the school contacted the Council for advice about Y’s attendance in late-January 2026, there was evidence the Council consulted with the school to help improve Y’s attendance. Our guidance says this is what we expect councils to do.
The Council told us it believed Y could not engage with learning because they were unwell, although it did not have a written record of this decision.
If the school had a clear, effective, and time-bound plan for reintegration and there was evidence Y would not be able to engage with additional alternative educational provision, then there may have been no immediate role for the Council in providing alternative education.
The Council would not have been at fault for deciding it did not need to provide alternative educational provision if it had considered all the relevant information and given reasons for its decision. It would not be for us to say what decision the Council should have made, but instead consider if there was any fault in how it made its decision.
However, it did not tell Mrs X its decision, nor did it keep any written records of it. Therefore, this was fault and we could not check how the Council made its decision. This caused Mrs X uncertainty, because she didn’t know the Council’s decision or reasons for that decision.
Even though the school had a plan to increase Y’s attendance, the Council still had a duty to consider if it needed to arrange alternative provision once it became clear that Y would likely miss more than 15 days of school.
It is more likely, on balance, the Council failed to consider and regularly review its section 19 duty, and particularly when it received new information about Y’s attendance, or once Y missed 15 days of school.
The Council instead told Mrs X it was the school’s responsibility to apply for extra funding for alternative educational provision. The Council could delegate the arranging of alternative education to the school, but the law says the duty to provide this lies with the Council. It should therefore have kept proper oversight to assure itself suitable education was in place, and properly investigated when the family raised concerns that it was not. Therefore, the Council’s failure to regularly review its section 19 duty towards Y was fault.
In response to our enquiries, the Council accepted these faults happened because of a lack of internal communication between relevant teams, which meant the Council did not have the full picture of Y’s attendance.
In response to previous investigations where we have found similar faults with the Council’s section 19 process, the Council has made changes to its service and we are satisfied the Council is taking steps to prevent these faults from happening again in future. However, these changes were not yet in place during Y’s attendance issues.
Therefore, I have not made any further service improvement recommendations on this point, but we will continue to monitor the effectiveness of the Council’s actions through our casework.
Alternative education provision: injustice For January 2025, I cannot say if the Council’s faults caused Y to miss any educational provision. This is because Y’s school was trying to support Y back into education and the Council was providing it with advice and guidance.
Therefore, if the Council had considered its section 19 duty, I cannot say if it was more likely than not it would have decided it needed to provide Y with alternative education provision. It is possible it would have decided the school was doing enough to support Y.
However, I can say the Council’s lack of clear decision-making and record-keeping for this period caused Mrs X and Y uncertainty and frustration.
For April 2025 to July 2025 and October 2025 to December 2025, the Council’s fault likely caused Y to miss education provision. This is because there was evidence the Council knew Mrs X wanted alternative education provision for Y, and evidence from Y’s EHC needs assessment shows they may have been able to engage with alternative education provision if it was tailored to their needs.
Personal remedy Where we find fault by a Council causing significant personal injustice, we can recommend a remedy.
Where a council’s fault causes a child to miss educational provision, our guidance on remedies says we will usually recommend a remedy payment of between £900 and £2,400 per term to recognise the impact of that loss.
For the lack of education provision caused by the Council’s faults between April 2025 to July 2025 and October 2025 to December 2025, the Council should pay Mrs X £1,800. This is £1,000 per term for just under two terms. This amount considers: that Y’s school was providing them with support and had a reintegration plan in place which meant Y was able to attend school on some occasions; the Council was providing advice and guidance to Y’s school and attending meetings with Y’s school and parents; and, that Y’s needs meant they likely could not have engaged with a high level of alternative education provision, particularly at first.
Agreed action
Within four weeks of our final decision, the Council will: apologise to Mrs X and Y for the injustice caused to them by the Council failing to consider and record its section 19 duty. This apology should be in accordance with our guidance for making an effective apology ; and Pay Mrs X a total of £1,800 for the injustice caused to her and Y by the faults identified during this investigation.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice. The Council has agreed actions to remedy injustice.
Investigator's decision on behalf of the Ombudsman