Summary: Mrs X complained the Council failed to ensure her son P and daughter R received suitable education and special educational needs support, after the family moved to the Council’s area. The Council failed to pay a financial remedy it promised Mrs X for education P and R missed in a previous school year; the Council agreed to now pay this. Fault by the Council also meant R missed education and special educational needs support in the next school year, Mrs X experienced avoidable time and trouble complaining, and the whole family experienced distress. The Council agreed to apologise and pay a financial remedy. It will also properly consider what education is suitable for R, and act to ensure it does not miss complaints and properly completes agreed complaint outcomes. I could not investigate parts of Mrs X’s complaint that were not the responsibility of the Council. I also could not consider issues which overlapped with an appeal she made to the First-tier Tribunal (Special Educational Needs and Disability) about P’s Education, Health, and Care Plan.

The complaint

1. Mrs X complains the Council failed to ensure her son P and daughter R received suitable education and special educational needs (SEN) support, after the family moved to the Council’s area in mid-2023. Mrs X says:
1. she previously complained to us that the Council failed to ensure P and R received suitable education for the 2023/2024 school year while out of school. We ended our investigation because we decided the Council had already offered a suitable remedy for the missed education and further investigation by us would not lead to a different outcome. However, Ms X now complains the Council never paid the financial remedy it had promised;
2. the Council issued an Education, Health, and Care (EHC) Plan for her son P in July 2024 which named an unsuitable school placement for him, instead of Mrs X’s parental preference;
3. P did not attend the new school placement named by the Council in the 2024/2025 school year because Mrs X considered it unsuitable. The Council failed to ensure P received suitable education for the 2024/2025 school year while out of school;
4. her daughter R remained out of school with no educational placement in the 2024/2025 school year. The Council failed to ensure R received suitable education for the 2024/2025 school year while out of school;
5. the Council failed to ensure P and R received their free school meals funding while out of school in both 2023/2024 and 2024/2025; and
6. the Council failed to respond at all when she complained for a second time in the 2024/2025 school year.
2. Mrs X says because of this:
• both P and R missed suitable education and socialisation with other children. This caused them distress;
• P and R being out of school and at home affected the whole family, including Mrs X who was caring for them, her partner who works from home, and other siblings who experienced disruption;
• Mrs X experienced financial loss because she had to meet the cost of all P and R’s meals herself while they were at home; and
• Mrs X experienced avoidable time and trouble. The Council failed to pay the remedy it promised from her first complaint, or respond to her second complaint, so she had to come to the Ombudsman again.
3. Mrs X wants the Council to:
• provide suitable alternative education for both children;
• issue a new EHC Plan for her son P naming the school placement of her choice;
• pay a financial remedy to recognise the education P and R missed;
• pay a financial remedy to recognise the distress caused to the whole family; and
• provide vouchers to meet the cost of school meals for P and R going forward.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:
• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome; or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)

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How I considered this complaint

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

Legislation and guidance

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.
13. 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)  

Reviewing EHC Plans

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

Transfer of EHC Plans between councils

15. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)

Alternative educational provision while out of school

16. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
19. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
20. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
21. 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: Out of school, out of sight? published July 2022. This says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

EHC Plan appeal rights

22. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the Tribunal in this decision statement.
23. We cannot direct changes to the sections of an EHC Plan about a child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
24. There is a right of appeal to the Tribunal against a council’s:

• description of a child’s SEN in the EHC Plan, the SEN provision specified, the school or placement specified, or that no school or other placement is specified; and
• amendment to these elements of an EHC Plan.

25. 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)
26. 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.
27. 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.
28. 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). 
29. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

Free school meals

30. Some families with children are entitled to free school meals. The Education (Transfer of Functions Concerning School Lunches etc.) (England) (No.2) Order 1999 transferred the duty to provide free school meals for eligible children from councils to the governing bodies of maintained schools. This means where a child is on roll at a maintained or academy school, the duty to provide free school meals lies with the school.
31. Where a child is receiving alternative educational provision and remains on roll at a school, the school still has a duty to provide free school meals. However, there is no duty to provide free school meals to children who are receiving alternative educational provision while not on roll at a school. There is also no power available to councils to consider arranging free school meals for a child in that position.

What happened

Mrs X’s previous complaint about 2023/2024

32. In July 2023, Mrs X and her family moved to the Council’s area. Mrs X’s children P and R had EHC Plans which were maintained by the council where they used to live. P was about to start year 6 and R was about to start year 9.
33. The Council received notification from the previous council that it would be transferring P’s EHC Plan in August 2023. Mrs X originally said she did not want P to move schools and wanted him to stay on roll at his special school in the previous council’s area.
34. The Council received notification from the previous council that it would be transferring R’s EHC Plan in October 2023. R had been attending a mainstream school in the previous council’s area, but with this notification the previous council issued an amended Plan, which said R should attend a special school instead. From this point R was removed from the roll of her previous mainstream school so had no school placement.
35. Mrs X complained to the Council in January 2024 that both P and R had been out of school since September 2023 with no alternative education in place. Mrs X had tried to take P to his previous special school but was struggling with the distance. Neither child had been issued with a new EHC Plan since the move to the Council’s area, and Mrs X said she wanted the Council to find new special school placements for both children.
36. In February 2024, the Council issued an amended final EHC Plan for P. This said P would remain on roll at his previous special school until July 2024. From September 2024 it said P would have a special school type placement but did not name a specific school.
37. The Council issued its final response to Mrs X’s complaint in February 2024 and Mrs X then came to the Ombudsman. In May 2024, the Council told us its final position on the complaint about the 2023/2024 school year was:
• it was consulting schools to be named in P’s EHC Plan. P began six hours a week of tutoring as alternative education in March 2024, but it accepted this was not enough hours, and it had failed to provide any education before this. It offered a financial remedy of £6,624 for missed education. This was £4,800 for the 2 terms missed from September 2023 to March 2024, and a further £1,824 for the remaining term where not enough hours were in place;
• it accepted it had delayed in transferring R’s EHC Plan since being notified by the previous council. It would consult schools to be named in the Plan so it could issue a final amended Plan. It had failed to provide any suitable alternative education while R was without a school place. It offered a financial remedy of £6,000 for the 2.5 terms missed from the point it received notification from the previous council, to the end of the school year; and
• it offered a further financial remedy of £1,000 for distress, time, and trouble caused by its faults.
38. In September 2024, we ended our investigation into Mrs X’s previous complaint. We decided the Council had already offered a suitable remedy for the missed education and associated injustice, and further investigation by us would not lead to a different outcome.

Mrs X’s current complaint about 2024/2025

39. Mrs X complained to the Council again in November 2024. She said:
• she had not received the financial remedy offered for the 2023/2024 school year and had heard nothing from the Council since the Ombudsman’s involvement;
• the Council had issued an amended EHC Plan for P in July 2024 naming a new special school in its area. She did not agree this school was suitable for P so had appealed about the placement to the SEND Tribunal. As she had not agreed to the placement, and P’s alternative education had stopped at the end of 2023/2024, this meant from September 2024 he had no education in place for year 7. She wanted the Council to continue to provide tutoring while awaiting the SEND Tribunal’s decision;
• from September 2024, R was now in year 10 and receiving six hours per week tutoring as alternative education. However, Mrs X’s understanding was this would end in February 2025 despite no other arrangements being in place. Also, the Council had previously agreed in P’s case this was not enough hours; and
• both P and R were entitled to free school meals funding but had not received this while out of school since September 2023. This meant she had to meet the cost of all P and R’s meals herself while they were at home.
40. Mrs X brought her complaint to the Ombudsman in January 2025. She said despite chasing the Council had failed to respond to her complaint. In March 2025 we decided the Council had failed to respond despite reasonable opportunity to do so and began our investigation.
41. When we spoke to Mrs X she said:
• the Council reinstated the six hours per week tutoring for P in January 2025, after her complaint. P received this to the end of the school year, but the Council had not recognised he went without any education for the first term of 2024/2025 or offered any remedy for this. Also, this was still not enough hours of education; and
• R continued to receive six hours per week tutoring throughout the 2024/2025 school year, it did not stop in February as she had been concerned about. However, this was still not enough hours. At the end of the year the Council had not identified a school placement or issued an EHC Plan for R since the move to its area.

Parts of the complaint I have not investigated

Complaints b and c – P’s education in 2024/2025

42. The Council issued a final EHC Plan for P on 18 July 2024. This named a school placement the Council considered was suitable for P. Mrs X disagreed with the placement and wanted the Council to name a school of her choice in the EHC Plan instead. The Ombudsman cannot direct the Council about what placement it should name in an EHC Plan. Only the SEND Tribunal can do this. Mrs X appealed the July 2024 Plan to the SEND Tribunal, which will decide about P’s school placement. As explained at paragraph 25, I cannot consider this matter which Mrs X appealed to the Tribunal.
43. Because Mrs X did not agree the school placement was suitable, P was out of school during the 2024/2025 school year. Mrs X’s view is the Council should have provided suitable alternative education for P during 2024/2025. However, as explained at paragraph 26, this is not something I can investigate. The reason P did not attend school is because of Mrs X’s disagreement about the school named in the EHC Plan, which is the same issue she appealed.

Complaint e – free school meals

44. P remained on roll at his school in the previous council’s area throughout 2023/2024. As explained at paragraphs 30 and 31, the duty to provide free school meals lay with the school, not the Council. I cannot investigate the actions of the school. From September 2024, the Council offered P a new school place, but Mrs X did not accept this, so he was not on roll at any school in 2024/2025. As explained at paragraph 31, there is no duty to provide free school meals to a child receiving alternative education who is not on roll at a school. The Council has no powers available to it to arrange free school meals for a child in that position. Therefore, I could not find fault with the Council for this, so did not investigate this part of Mrs X’s complaint.
45. R has not been on roll at a school since the previous council transferred her EHC Plan in October 2023. As with her brother, there was no duty to provide her free school meals while she was not on roll at a school. Again, I did not investigate this because I would not be able to find fault with the Council.

My findings

Complaint a – previous complaint about 2023/2024

46. We ended our investigation into Mrs X’s previous complaint because we decided the Council had already offered a suitable remedy. However, the Council then failed to pay the financial remedy it promised. This was fault.
47. The Council’s failure to follow up on its promised complaint outcome meant Mrs X had to bring this issue to the Ombudsman again. The Council should pay the agreed remedy, and a further remedy to recognise the added time and trouble caused to Mrs X.

Complaint d – R’s education in 2024/2025

48. As explained at paragraph 15, the Council should have reviewed R’s EHC Plan within twelve months of the last review by the previous council. At the point we ended our previous investigation, it had been eleven months since the previous council issued an amended EHC Plan and transferred this. The Council did not review the Plan within twelve months of the previous review and had still not issued any Plan by the end of the 2024/2025 school year, 21 months after the transfer. This delay was fault, which caused Mrs X and R distress, and frustrated Mrs X’s right to appeal to the SEND Tribunal because the Council never issued a final Plan with appeal rights. There also remains uncertainty for Mrs X and R about how R’s education and SEN support may have been different if the Council had reviewed the Plan on time. This uncertainty added to their distress. The Council should provide a remedy for the distress caused.
49. Throughout 2024/2025, R received six hours a week of tutoring as alternative education. Therefore, the Council had accepted a section 19 duty to R. However, there was no evidence the Council properly considered whether the alternative education it provided was suitable for R’s age, ability, aptitude, or special educational needs.
50. R’s latest EHC Plan during 2024/2025 was the October 2023 EHC Plan. As outlined above, there is uncertainty about whether R should have received more support than that outlined in the October 2023 Plan, if the Council had reviewed it on time. I have recommended a remedy for this uncertainty. But in terms of remedying the SEN provision R missed, I can only consider this against the October 2023 Plan which was in place. The Plan said R should receive:
• various adaptations to her curriculum and in-class support, including that all staff working with her should be trained in working with young people with autism and anxiety;
• up to one hour a week of targeted intervention to support social communication skills, in a small group of three to four peers;
• at least three times a week, direct teaching of emotional understanding, either one-to-one or in a small group of up to three peers. Linked to this, there should also be direct teaching to recognise body signals at least three times a week;
• weekly one-to-one mentoring to develop R’s confidence and work on identity in relation to her autism diagnosis;
• up to one hour fortnightly of therapeutic input from an onsite counsellor or psychological service to help managing emotions and build acceptance of autism diagnosis; and
• extracurricular and social activities, provided initially in school, to develop skills to try new things, and relationships with peers.
51. The alternative provision tutoring was not adapted to be suitable for R’s SEN in line with the EHC Plan. R also did not receive the added interventions and therapies outlined above. The Council’s failure to consider whether the alternative education was suitable, or how it could deliver the interventions outlined in the EHC Plan while R was out of school, was fault. If the Council had properly considered this, I find it could have ensured adaptations were in place to R’s tutoring and arranged extra interventions to meet R’s EHC Plan. Therefore, the fault meant R missed suitable education and SEN provision.
52. There is also no evidence the Council properly considered how many hours of tutoring it should provide or kept this under review to decide if it should increase the hours. R was not out of school due to a medical condition and there is no evidence the Council considered reduced hours were in her best interests for reasons of physical or mental health. R was out of school because the Council had not found a school place for her. Mrs X told us R could have engaged with more hours, equivalent to full-time, if the Council had offered this. The Council’s failure to properly consider the number of hours, was fault. The Council previously accepted six hours a week of tuition was not enough for R’s brother P and said it should have provided 25 hours to make this full-time-equivalent. Based on this, I find if the Council had properly considered R’s case, it would have also provided 25 hours. The Council should remedy the injustice caused.
53. Our guidance on remedies says:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss; and
• in addition to educational provision, we recommend extra remedies for loss of SEN support such as direct therapies and interventions. The level of financial remedy for this is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child.
54. In deciding a suitable financial payment to recognise the education and SEN support R missed, I considered the following.
• R was in year 10 during 2024/2025. As set out in our guidance on remedies, we do not consider this be one of the most significant periods in a child’s school career, as we would for say the first year of secondary school, or a public exam year.
• Although the Council arranged some alternative education, this was not adapted to be suitable for R’s SEN in line with the EHC Plan. The alternative education was also not for enough hours. On the balance of probabilities, I decided R would have been able to engage with full-time-equivalent education if the Council had made this available.
• R did not receive any of the added interventions or therapies outlined in her EHC Plan. It is likely this had a significant impact on R’s ability to successfully engage with the education available to her.
55. The Council should provide a financial remedy of £1,900 per term for the education and SEN provision R missed in 2024/2025. This is a total of £5,700.

Complaint f – failure to respond to second complaint about 2024/2025

56. The Council failed to respond at all to Mrs X’s November 2024 complaint. This was fault, causing Mrs X avoidable time and trouble in bringing her complaint to the Ombudsman. The Council should remedy the injustice caused.

Recurrent fault by the Council

57. Since 2023 we have made several recommendations to the Council in other cases, to address repeated faults identified with its education services. Because of this:
• in late 2024 the Council provided evidence of steps it was taking to improve its SEND service and EHC Plan processes. This included how it communicates with SEN families, and how it considers its section 42 duty in cases where children do not have a school place to ensure EHC Plan provision is still delivered;
• in 2025 the Council showed it had reviewed how it meets its duties and makes timely decisions where a child with an EHC Plan transfers from another council’s area; and
• also in 2025, the Council showed it was reviewing its alternative education policy for how it considers its section 19 duty to children out of school.
58. Therefore, I decided it was not suitable to make further recommendations to address the Council’s faults in these areas at this stage. However, I have recommended actions the Council should take to address its faults with complaint handling.

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Action

59. Within one month of our final decision the Council will:
1. apologise to Mrs X for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology; and
2. pay Mrs X a total of £20,624, comprising of:
1. £13,624 it previously agreed but failed to pay to remedy injustice caused in response to her 2023/2024 complaint;
2. £5,700 to recognise the education and SEN support R missed in 2024/2025;
3. £400 to recognise the uncertainty that remains for Mrs X and R about how R’s education and SEN support may have been different if the Council had reviewed the EHC Plan on time;
4. £500 to recognise the avoidable distress caused to the family by the Council’s failings; and
5. £400 to recognise the avoidable time and trouble caused to Mrs X because it failed to complete the promised 2023/2024 complaint outcome, then failed to respond to her 2024/2025 complaint at all.
60. Within six weeks of our final decision the Council will:
1. properly consider, in consultation with Mrs X, what educational arrangements are suitable for R going into the 2025/2026 school year. This could be a named school placement, Education Otherwise than at School (EOTAS), or a package of alternative education under its section 19 duty. It will issue a final EHC Plan without delay setting out what it decides about R’s educational arrangements, as it has not done this since it became responsible for the Plan in October 2023. If it decides it should continue to provide alternative education, it will properly consider how to ensure this is a suitable number of hours, and is suitable for R’s age, ability, aptitude, and SEN;
2. find out why it failed to pay the financial remedy it promised Mrs X in response to her 2023/2024 complaint. It will produce a dated action plan of any changes needed to its processes and/or staff training to ensure it properly completes complaint outcomes; and
3. find out why it failed to respond to Mrs X’s 2024/2025 complaint at all. It will produce a dated action plan of any changes needed to its processes and/or staff training to ensure it does not miss complaints and responds within its complaints’ procedure timescales.
61. The Council will provide us with evidence it has complied with the above actions.

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Decision

62. I find fault causing injustice. The Council agreed to the actions I recommended it should take to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman