Summary: On the evidence available to us, we cannot draw a conclusion whether the Council met its duties, to offer support to a young person in maintaining his educational placements. However, we are satisfied this would not have changed the outcome either way, and further investigation would therefore not be proportionate. The Council was at fault, because it did not arrange a meeting when it said it would, but this did not cause an injustice. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mrs N.
2. Mrs N complains the Council has not provided adequate support to her son, C, to allow him to access education. As a result she says C has missed several years of education, which has had a significant impact on his mental health.

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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. 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 s34H(1), as amended)
4. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

5. As described above, the law says a person should approach us within 12 months of becoming aware of the issue they wish to complain about. A complaint about something older than this is late, and the law says we should not investigate it.
6. In her complaint, Mrs N says the Council repeatedly failed to provide the necessary support to C over a period of six years. However, as she approached us initially in January 2025, anything that happened before January 2024 is late.
7. We do have some discretion to disapply this restriction, but we must first be satisfied there are good reasons for the complainant’s delay in approaching us. Mrs N has not sought to explain the delay, and so I do not have any grounds to exercise discretion in this case. My investigation will therefore not include anything that happened before January 2024.
8. We also will not consider any matters which arise after the submission of a complaint to us, and for this reason my investigation will not extend beyond the events of January 2025.

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How I considered this complaint

9. I considered evidence provided by Mrs N and the Council as well as relevant law, policy and guidance.
10. I also shared a draft copy of this decision with each party for their comments.

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What I found

11. C has mental health problems and possible learning difficulties, and is subject to an education, health and care (EHC) plan.
12. C had been on roll at a secondary school since 2022. By the beginning of 2024, when C was in Year 11, the school had logged a series of safeguarding incidents involving him, in which his behaviour had presented a significant risk either to himself or others. The school had therefore moved him to an off-site programme of alternative provision, with a part-time personalised timetable.
13. In March 2024 there was a multi-agency meeting about C, attended by representatives from the Council and school, as well as Mrs N. It was noted C was no longer attending the alternative provision, and the attendees discussed other possible sources of provision for him, as well as his desire to start at a particular college in September. It was agreed a visit to the college would be arranged for C.
14. In May, the college notified the Council that C had visited, and had applied for an introductory course for the subject he wished to study. The Council says this is the only subject C has expressed an interest in.
15. C started at the college in September. Within a couple of weeks of the start of term, the Council noted C had said he was not enjoying the placement, because he had not started studying his chosen subject yet. He had also suffered a deterioration in his mental health.
16. In early October the college provided C with an amended timetable, as it said he could not cope with a full day and had poor attendance. The college also informed Mrs N that C could no longer be accepted onto his chosen course, because it had recently introduced a requirement for students to have a particular qualification, which C did not. The college noted he had taken this news badly, and there appeared to have been a consequent substance abuse incident.
17. In December C’s EHC plan was reviewed. The college reported his attendance had continued to deteriorate, and that it had further safeguarding concerns about him. Other potential placements were for C were discussed.
18. In January 2025 the college decided it could no longer offer a placement to C, because it did not believe it could keep him safe.
19. Shortly after this Mrs N approached the Ombudsman. She complained the Council had failed to meet C’s needs or provide the proper support for him, meaning he had not been in education since primary school. We established Mrs N had not yet made a complaint to the Council about this, and referred the matter back to the Council.
20. Mrs N then made a complaint to the Council in March, to which the Council responded in May. It said:

• during the recent annual review of C’s EHC plan, the college had raised concerns about safeguarding him, as he would abscond from the site and was possibly abusing substances during the college day. Possible alternative provision had been discussed, but the Council noted Mrs N had expressed doubt this would be effective, as it had not been while C was on roll at school;
• subsequent to the review, a further meeting was due to be held between the Council and college, but this had not happened because of staff shortages. The Council apologised for this;
• it had recently consulted with several alternative providers to identify a placement for C. It noted C had expressed an interest in returning to the college for a new placement starting in September, and had recently had several negative drug tests. However, the college had responded negatively to the Council’s consultation, as it still felt it could not keep C safe, due to his risk of self-harm;
• it noted C had expressed an interest in a particular alternative provider, which the Council encouraged him to visit;
• although there had been delays in finding C a new placement, this was because of the need to manage the various safeguarding concerns about him;
• it noted C had had historically poor attendance at school, although it was aware he had expressed a desire to attend during a previous EHC plan review, and that he felt he was relying too much on alternative provision;
• there had been points where C had not properly engaged with social services, but it was aware C had expressed a desire to have a “positive lifestyle”;
• it partially upheld Mrs N’s complaint, because of the failure to arrange a follow-up meeting to the December 2024 annual review, and because the Council had “missed opportunities to work faster” since then;
• it did not agree C had had no appropriate education for six years, but considered it should have “challenged [C’s school] to increase their on-site provision, and worked more closely with [the college] to avoid the breakdown of that place”.

21. In July Mrs C referred her complaint back to the Ombudsman.

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Legislative background

EHC plans

22. 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.
23. 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)  

Section 19 duty

24. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child of compulsory school age 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. We refer to this as the Council’s ‘section 19 duty’.

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Analysis

25. At the beginning of the period covered by my investigation, C was on roll at a school, but the school had arranged alternative provision for him on a different site, because of its safeguarding concerns about him. By March 2024, however, C had stopped attending the alternative provision.
26. At this point the Council’s duty to secure another form of alternative provision was engaged. This duty is absolute, in the sense the Council cannot simply decide not to discharge it. However, doing so is not necessarily straightforward.
27. During the meeting in March, other possible options for alternative provision for C were discussed. The information I have does not give any conclusive indication what then came of this. I am concerned this implies the possibility the Council did not approach this matter with the vigour it justified.
28. But I am also conscious of the difficulty that had already been experienced in getting C to properly attend and engage with his educational placements. In particular, I note the comment Mrs N made, highlighted by the Council in its complaint response, that the alternative provision arranged by C’s school had not been effective anyway. Even if I could find the Council should have made more strenuous efforts to find a new placement for C after March, therefore, it appears doubtful this could have made any substantive difference to his situation.
29. I am also conscious the Council’s section 19 duty only applied while C was of compulsory school age, which was until the end of the 2023/24 academic year. Even if the Council was at fault in its application of this duty, therefore, it would have been only for a very brief period.
30. The Council had a separate duty to secure a placement for C, because he had an EHC plan. However, given, again, how close C was to the end of Year 11 when his alternative provision placement broke down, I do not consider the Council could practically have been expected to find a new, formal placement in that period either. The Council instead appears to have concentrated on securing a college placement for C to start in September, which appears reasonable under the circumstances.
31. Unfortunately C’s college placement also quickly broke down, and was eventually withdrawn by the college for safeguarding reasons. I acknowledge the distress this must have caused C, and Mrs N, but the Council was evidently not responsible for this, and it is only the Council I can investigate here. Any efforts the Council has made, since then, to find C a new placement fall outside the period covered by my investigation.
32. In its response to Mrs N’s complaint, the Council expressed the opinion it could have acted more robustly, to encourage C’s school to increase the provision it could offer him on site, and to help prevent his college placement breaking down.
33. Noting these comments, I asked the Council to elaborate, and explain in more detail what it thought it could have done better. The Council replied to say it was “not in a position of being able to make comment … it is evident that the local authority attended and supported numerous meetings prior to the breakdown of the placement. The LA officer who prepared the response is currently on long term sickness and unavailable for comment.”
34. It is difficult to process this response. We would generally not consider it acceptable for a council to later disown a finding of fault it had made during the formal complaints process, as it effectively has done here.
35. Equally though, I share the Council’s view the complaint response does not provide an adequate explanation for its criticisms. While it might be possible to conclude, with hindsight, that more could have been done, this is not the same as saying the Council was actively at fault for how it handled the situation at the time.
36. The only properly well-founded criticism in the Council’s complaint response concerns its failure to make good on the promise of arranging a follow-up meeting, after the annual review in December 2024. I agree this is fault; but, again, it is difficult to see what another meeting could realistically have changed at this point. Even putting the safeguarding issues to one side, the college had recently changed the qualifying criteria for C’s course, meaning he was no longer eligible for it anyway. It does not appear plausible to suggest a breakdown of the placement could have been avoided.
37. Taking all this together, I do not consider I can safely make a finding one way or the other, on the general question of whether the Council offered C adequate support during period covered by my investigation. The evidence is simply insufficient to support a finding, even on the balance of probabilities.
38. However, whatever else the Council could have done here, I cannot accept it could have made any meaningful difference to the outcome. This being so, it would not be proportionate to continue an investigation into these matters.
39. I still find the Council at fault, but solely on its failure to arrange the follow-up meeting to C’s annual review. For the reasons given though, I do not consider this caused an injustice.

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Decision

40. I find fault not causing injustice.

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Investigator's decision on behalf of the Ombudsman