Summary: Mrs X complained her son has been out of education for over a year. She says the Council failed to secure a school placement or arrange suitable alternative educational provision that meets his Education, Health and Care (EHC) Plan. We found fault in the Council’s actions. The Council agreed to apologise to Mrs X, pay a financial remedy and review its procedures for securing timely educational provision.

The complaint

1. Mrs X complains the Council failed to ensure her child receives the provision set out in their Education, Health and Care (EHC) Plan or appropriate full time alternative educational provision since September 2023. As a result, her child missed out on educational provision for a considerable period at a significant stage of their school career.

Back to top

The Ombudsman’s role and powers

2. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. 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)
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

9. The complainant came to us in February 2025, raising concerns that date back to September 2023. This falls outside our usual 12-month timeframe. I have decided to exercise discretion and investigate the complaint from September 2023 onwards. This is because the key issue raised by the Mrs X i.e. the Council’s failure to secure an educational placement or suitable alternative provision, centres on events from the start of the 2023/24 academic year.
10. I have stopped my investigation when Mrs X complained to us in early February 2025. Information outside of this timeframe is provided for background and context only.

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant guidance and legislation

Education, Health and Care (EHC) plans

13. A child or young person with special educational needs may have an 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
14. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
15. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative provision

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 he 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 law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
21. 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. 
22. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, Out of school, out of sight? published July 2022 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.

What happened

23. This section sets out the key events in this case and is not intended to be a detailed chronology.
24. Mrs X’s child, Y, was in a significant year of their school career and has complex Special Educational Needs (SEN). Y was excluded from school on 19 September 2023 following an incident. The school offered to send someone home to teach Y, but Mrs X declined as she believed it would be unsuitable since Y had not yet built a good relationship with the staff. The school did not send any work home for Y to complete. Mrs X contacted the Council and it started consulting other schools and tried to arrange tutoring at home in the interim.
25. No educational provision was provided until 8 March 2024. The Council arranged 15 hours of tutoring per week, but Y received reduced hours due to the tutor’s availability. Y received 6 hours per week from 11 March 2024 and 8 hours per week from 8 April 2024. Tutoring stopped on 15 May 2024 as the tutor could no longer support Y due to personal reasons. No alternative educational provision was arranged for the remainder of the summer term. Mrs X asked if she could be appointed as Y’s teacher instead, but this was not agreed. The Council advised it would look for another tutor. It did not manage to secure a school placement as schools responded that they could either not meet Y’s needs or they were full. The Council started another round of consultations in the new academic year. Mrs X made a formal complaint to the Council in July 2024.
26. Between 3 September and 18 September 2024, there was no tutoring in place as the tutor due to start cancelled. The Council found a replacement tutor and she did a 1-hour introductory session on 19 September. Only 1 x 3 hour session was put in place between 20 September and 8 November due to tutor availability. The sessions went well until an incident occurred and the tutor suggested Y should have two-to-one sessions. Mrs X agreed and this was arranged. The tutoring agency then gave notice on 11 November 2024 that it could no longer meet Y’s needs, and alternative provision stopped.
27. No educational provision was in place until 11 February 2025 when the Council arranged a part-time school placement at School Z. The school first advised it could meet Y’s needs but had no space. The Council negotiated reduced hours of 1 hour per week initially to support Y’s reintegration into school. This increased to 2 hours and then 4 hours on alternative weeks as Y settled in, preparing them to start their full-time placement in September 2025.

My findings

28. The Council was at fault for failing to consider whether it owed a duty, under section 19 of the Education Act 1996, to secure suitable alternative education when it became aware of Y’s exclusion in September 2023. There is no evidence the Council considered this duty until at least 16 October 2023, when an EHC Plan Coordinator contacted Mrs X, following contact initiated by Mrs X. There is also no evidence, following the email exchange on 16 October 2023, the Council reached a reasoned decision that the tuition offered by the school was suitable and that it therefore did not owe a section 19 duty. Instead, an officer offered to arrange home tuition, which Mrs X accepted. I consider, on the balance of probabilities, that had the officer contacted Mrs X promptly when Mrs X’s son was excluded the Council would have offered tuition at home sooner. The Council’s view that the school’s offer of tuition was objectively reasonable appears to have been reached after the event. The documentation does not demonstrate the Council properly considered or discharged its section 19 duty at the relevant time.
29. Y received no educational provision between 1 November 2023 to 8 March 2024. There were 2 weeks of Christmas holiday and 2 x 1-week half term holidays. So, there was no provision for 15.5 weeks. The Council accepted fault for this during its complaints process and offered a financial remedy.
30. The Council arranged tutoring as an alternative provision, but Y received reduced hours from 11 March 2024 to 15 May 2024. It says Mrs X asked for reduced hours but there was insufficient evidence to confirm this. The evidence does confirm the reduced 6 and 8 hours were arranged based on the tutor’s availability. The Council should have ensured Y receives a suitable full-time equivalent but failed to arrange this. There were 2 weeks of Easter holiday during this period. So, Y received 7 weeks of reduced provision. This is fault and caused injustice to Y as he missed out on educational provision.
31. Y received no educational provision between 20 May 2024 and 19 July 2024. There was a 1-week half term holiday during this period, so Y received no provision for about 8 weeks. The Council accepted fault for this period and offered a financial remedy.
32. There was no provision between 3 September and 18 September 2024. The Council arranged a tutor, but she cancelled. So, there was no provision for about 2.5 weeks. The replacement tutor did a 1-hr introductory session and then 1 x 3hr session from 20 September to 8 November due to tutor’s availability. There was a 1-week half term holiday during this period and Mrs X and Y were also away for another week. So, Y received about 6 weeks of reduced provision. This is fault and caused injustice to Y as he missed out on educational provision.
33. Y received no educational provision between 12 November 2024 and 31 January 2025 as the Council could not find any suitable tutors to replace the previous tutor. It should have arranged a suitable school placement or alternative provision but failed to do so. This amounts to fault and caused injustice to Y due to the loss of educational provision. It also caused distress, frustration and uncertainty to Y and parents.
34. The Council failed to find a suitable school for over a year. This is a service failure. It eventually arranged a part-time school placement at School Z from 11 February 2025. It arranged low hours to support Y’s transition back to school and increased gradually as Y progressed. Mrs X complained to us on 14 February 2025. If she was dissatisfied with the number of hours offered at the school after this period, she should complain to the Council through its complaints process to give it the opportunity to investigate and reply (see paragraph 5).
35. Mrs X believed there was a missed opportunity for Y to attend his current school the previous year. She says the Council failed to properly follow-up the consultations in the previous year and Y could have started the placement a year earlier if it did. The evidence shows the Council continued to update Mrs X on the progress of the consultations. The Council advised Mrs X that School Z was full and could not offer a space during the first round of consultations. There is no evidence of a formal reply from School Z for the first consultation. On the balance of probabilities based on available evidence, School Z was likely unable to offer a place in the previous year as it was the following year. A placement was only arranged as the Council pressed a matter of urgency since Y had been out of school for an extended period of time.

Injustice

36. There was a loss of educational provision during a significant period of Y’s school career as no provision was arranged for 42 weeks during the periods:
• 19 September 23 – 30 October 2023 (approx. 6 weeks)
• 1 November 2023 – 8 March 2024 (approx. 15.5 weeks adjusted for holidays)
• 20 May 2024 – 19 July 2024 (approx. 8 weeks adjusted for holidays)
• 3 September 2024 – 18 September 2024 (approx. 2.5 weeks)
• 12 November 2024 – 31 January 2025 (approx. 10 weeks adjusted for holidays)
37. There was a loss of educational provision as reduced provision was arranged for 13 weeks during the period:
• 11 March 2024 – 8 April 2024 when Y received 6 hrs per week due to tutor availability (2 weeks)
• 8 April 2024 – 15 May 2024 when Y received 8 hrs per week (approx. 5 weeks)
• 20 September 2024 – 8 November 2024 when Y received 3 hrs per week due to tutor availability (approx. 6 weeks adjusted for holidays)
38. The faults in the Council’s actions caused distress and uncertainty to Y and parents from the lack of a school placement and suitable alternative provision.

Remedy

39. The Council used our guidance and offered a financial remedy of £3150 for loss of educational provision. It calculated this is as £137 per week (£1781 per term), remedying the loss of approximately 23 weeks of missed education. It considered Y’s vulnerability and the impact on the family. I do not consider this to be a sufficient remedy in this instance.
40. 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 SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
41. We recommend a remedy of £2000 per term. That equates to around £150 per week for the 42 weeks with no provision. The increased amount is to reflect Y’s complex SEN and the significant period of their school career. We recommend a further £900 for the 13 weeks Y received reduced provision. The total financial remedy for the loss of educational provision we recommend is £7200.

Back to top

Action

42. The Council agreed to take the following actions within four weeks of my final decision:
• Apologise to Mrs X for the failings identified in this case. 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 when making the apology.
• Make a symbolic payment of £200 to Mrs X to acknowledge the distress, frustration and uncertainty caused by the Council’s failures.
• Pay Mrs X £7200 for loss of education during the periods with no educational provision and reduced provision. This is an increased amount from the Council’s offer of financial remedy to recognise the additional weeks missed, complexity of Y’s SEN and the significant period of his school career that he missed out on. I recommend Mrs X uses this payment for the benefit of Y’s education.
43. The Council agreed to take the following actions within 12 weeks of my final decision:
• The Council should review its procedures for securing timely and suitable educational placements for children with additional needs or those out of school. This should identify any issues and produce a written action plan to improve timescales. This plan should be shared with us within 12 weeks, including steps for monitoring progress.
44. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

45. I find fault causing injustice. The Council agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman