Summary: Ms X complained the Council failed to provide her son with alternative provision while he was out of school following a school placement breakdown. We find the Council at fault for failing to arrange a suitable full-time education or any alternative provision from January to July 2024. The Council has also failed to meet its statutory duty to ensure the provision set out in Ms X’s son’s Education, Health and Care Plan was delivered. This fault meant he received very limited education between January and July 2024. This caused Ms X and her son significant distress and uncertainty. The Council has agreed to apologise, make a payment to Ms X and her son, and make service improvements.

The complaint

1. Ms X complained the Council failed to provide any education for her son Y, who has an Education, Health and Care (EHC) Plan, between January and September 2024 following a placement breakdown. She also says the Council failed to hold an interim review during this time. Ms X also complains of poor complaint handling and communication by the Council. Ms X says this caused the family distress, uncertainty and frustration. She also says being out of a school setting for so long has negatively impacted Y’s confidence and social communication.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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).
4. 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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How I considered this complaint

5. I considered evidence provided by Ms X and made written enquiries of the Council. I have also considered relevant law, policy and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

What I found

Education, Health and Care Plans

7. 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. 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. 
8. 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)  
9. 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

10. 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.
11. 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)
12. 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))
13. Where councils arrange for schools or other bodies to carry out functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

14. Ms X’s child, who I shall refer to as Y, stopped attending school on 26 January 2024 after his school placement broke down. Y has an EHC Plan.
15. On 29 January, the school notified the Council of the placement breakdown. It said the six weeks’ notice period would end in March, at which point Y would no longer be on its roll.
16. On 30 January, the Council consulted with alternative educational settings.
17. In February, the Council made Ms X an offer of an educational placement. Ms X declined this offer as she did not consider it suitable for Y’s needs.
18. In mid-March Ms X raised a stage one complaint with the Council, explaining that Y was still out of school and it had still not put any alternative provision in place. She also complained about poor communication and that it never returned her calls or emails.
19. The Council provided a stage one response to Ms X’s complaint. It apologised for its lack of communication regarding Y’s provision. A senior officer at the Council’s Special Educational Needs Assessment Team (SENAT) arranged a call with Ms X to discuss the ongoing issue of missing provision.
20. The officer requested members of the SENAT undertake searches and formally consult with alternative educational settings.
21. In April 2024, the Council continued its search of educational placements and began formal consultations with alternative educational settings.
22. The school held the annual review of Y’s EHC Plan in late April, attended by a Council officer. An action item was to follow up on alternative provision to ensure this was in place for Y as soon as possible. The Council then completed an alternative provision search.
23. In May, one of the specialist settings the Council had consulted with, which I refer to as Setting A, offered to assess Y. The Council also consulted with an independent specialist setting Ms X had identified.
24. On 2 May, Ms Y escalated her complaint to stage two of the Council’s complaints procedure.
25. A week after Ms X submitted her stage two complaint, a tuition provider confirmed it could offer up to 15 hours of provision for Y per week. Y received the tuition from 17 June to 9 July. He received a total of seven tuition sessions, each lasting three hours, over three weeks. In late June, Setting A confirmed it could meet Y’s needs. It put him onto its roll for September 2024. The Council updated Y’s EHC Plan to reflect this placement.
26. The Council issued its stage two response in November 2024, where it:

• Acknowledged its lack of communication and the distress and frustration caused by this.
• Accepted it did not arrange any alternative provision for Y while it was seeking an alternative educational setting. It also acknowledged it had not met its section 19 (S19) duties. The Council apologised for this.

27. Ms X remained unhappy with the lack of provision and the Council’s response so complained to the Ombudsman in February 2025.

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Analysis

Alternative Provision

28. Y did not attend school or receive any alternative provision from his last day at school, on the 26 January 2024, to 17 June 2024, when he started to receive tuition. The Council accepts it failed to meet its S19 duty. However, when a child has an EHC Plan, the Council has a statutory duty under Section 42 (S42) of the Children and Families Act 2014 to ensure the provision set out in the Plan is delivered. In failing to arrange alternative education for Y, and therefore not delivering any of the provision specified in Y’s EHC Plan, it simultaneously failed to meet its S42 duty.
29. I understand the Council searched for alternative settings for Y following the annual review of his EHC Plan in April. However, the Council should have put alternative provision in place while it sought alternative placements. It took five months for it to provide any provision. This is fault.
30. The Council said it was content that the school was providing schoolwork for Y to complete at home until mid-March, when the school’s six weeks’ notice period ended. However, even if the school was sending work for Y to complete at home during this time, the Council still had a responsibility to consider its S19 duty. Work set by a school for a child to complete at home does not constitute teaching and is not considered suitable alternative provision. It was not sufficient to rely on the school for provision.
31. In its stage two complaint response, the Council said that at the point it became aware Y’s placement was going to end, the school should have arranged an annual review of Y’s EHC Plan. However, this did not happen. I cannot criticise the actions or inactions of the school as this falls outside the Ombudsman’s jurisdiction. However, the Council should have taken responsibility when it saw inaction and arranged an interim review.
32. One of the actions decided at the annual review held in April was that a package of alternative provision needed to be put into place as soon as possible. Had the Council held an interim review at an earlier point, it is likely that a package of alternative provision would have been considered and implemented earlier. The fact it did not, in my view, contributed to the delay in arranging provision for Y. I have recommended a service improvement below.
33. I have considered the circumstances of the Council’s offer of an educational placement in March 2024. It seems that it agreed with Ms X this setting was not suitable for Y, since it did not name it in Y’s EHC Plan and continued to search for alternative settings. There was then a gap between this offer and the Council’s search for more suitable settings, which began in late April. I understand this delay was due in part to an unforeseen period of leave of the special educational needs and disability (SEND) Officer involved. However, the reason for the delay does not detract from the Council’s failure to arrange alternative provision for Y while he was out of school. The Council should keep an oversight of cases when a colleague is on an extended or unexpected period of leave, to ensure it does not lose momentum on individual cases and continues to meet its statutory duties. I have recommended a service improvement below.
34. The Council arranged six hours of tuition per week from June. Y received this tuition for just over three weeks in total. This does not amount to what we would consider sufficient or full-time provision. I have not seen any evidence that the Council considered why such little provision was suitable for Y, nor made any assessment at the time as to what level of provision he would be able to cope with. Additionally, the provision delivered to Y does not match the provision specified in section F of his EHC Plan, which is fault, as explained in paragraph 28. However, I have considered that some provision, even if limited, was delivered towards the end of the academic year when deciding a remedy. I have outlined this in my recommendations below.
35. The Council’s faults outlined in the paragraphs above have caused Ms X and Y a significant injustice. Its failure to provide suitable alternative provision for Y has caused Ms X considerable distress, uncertainty, and frustration. She has also spent significant time and effort contacting the Council to try and secure the provision Y needed and was entitled to.
36. The Council’s failure to meet its S19 and S42 statutory duties means that Y has missed out on suitable education for six months. He has also missed out on the special educational provision he needs as defined in his EHC Plan. Ms X explained that as a result, Y has lost academic confidence and has suffered significant distress and anxiety.

Poor communication and complaint handling

37. Ms X says she contacted the Council’s Customer Relations Team numerous times to enquire about the status of her complaint and the progress of the Council’s consideration of Y’s provision. The Council also issued its stage two complaint response six months after it was made, which is beyond the 20 working day target stated in its Complaints Procedure policy.
38. The Council explained this delay this was due to a backlog of work and inadequate staffing levels. It explains it has now taken measures to address these staffing issues. The Council apologised to Ms X for the delay in responding to her complaint and has further apologised for its poor communication from its Customer Relations Team. It has paid Ms X £100 for the delay in its stage two response. I find this a suitable remedy and do not have further service improvement recommendations to make in relation to this fault.

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Action

39. Within one month of the final decision the Council has agreed to:
1. Apologise to Ms X for the distress and uncertainty caused by the Council’s 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 the apology I have recommended.
2. Pay Ms X £1,800 for the missed provision for Y from the end of January, when he stopped attending school, to 16 June 2024, when no provision was in place. Pay Ms X a further £400 for the period 17 June to 19 July, during which either limited or no provision was in place for Y. We would recommend Ms X uses this payment for Y’s educational benefit.
3. Make a distress payment to Ms X of £200 for the time and trouble caused trying to resolve the issue of missed provision for Y.
40. Within two months of the final decision the Council has agreed to:
1. Review its processes to ensure it meets its S42 and S19 duties when a child is out of school. This should include consideration of holding interim reviews where necessary.
2. Put into place a system that allows oversight of SEND officers’ cases during unexpected or prolonged absences.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. There was fault by the Council, which caused Ms X and Y an injustice. The Council has accepted my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman