Summary: Miss X complained that since 2021, the Council has not provided her child with a suitable education. We find the Council at fault for failing to secure the special educational provision in her child’s Education, Health and Care Plan and for failing to consider whether it had a duty to arrange alternative provision while her child was not attending school. This caused a loss of specialist support and avoidable uncertainty. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council placed her child in a specialist school, rather than the mainstream school she preferred. She says the Council has since failed to transfer her child to the mainstream school of her choice.
2. Miss X also complained the Council has not provided her child with suitable alternative education provision since October 2021.
3. Miss X says this has caused her child to miss out on education and the opportunity to socialise with peers, and that it has resulted in financial hardship for her.

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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. 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.
6. 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)
7. 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 have and have not investigated

8. 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).
9. The Council decided not to investigate Miss X’s complaint in March 2025. We notified the Council later that month that we had received Miss X’s complaint and that we intended to investigate. I am satisfied the Council therefore had an opportunity to investigate and respond but did not do so. For that reason, I have proceeded to investigate Miss X’s complaint.
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision.  
11. Miss X can appeal to the SEND Tribunal against the placement named in the final Education, Health and Care (EHC) Plan. I consider it is reasonable for her to have done so. I have therefore not investigated this part of her complaint.  
12. 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)
13. Miss X became aware in 2021 that Y was not receiving alternative provision but did not bring the complaint to us until March 2025. Given the facts of this case and the continuous sequence of events, I have exercised my discretion to investigate the period September 2023 to March 2025. This is because investigating from the middle of an academic year would risk an incomplete understanding of what happened in this case.

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How I considered this complaint

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

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What I found

Relevant law and legislation

Education, Health and Care Plan

16. 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. 
17. 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).

Alternative provision

18. 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.
19. 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))
20. 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)
21. 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’)
22. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
23. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

24. Y has an EHC Plan and began attending school A in September 2021.
25. In September 2023, Miss X told the Council that Y was struggling at school and not attending regularly. The school also reported Y’s ongoing poor attendance and said Y had engaged only sporadically with the support offered, including online learning and short one-to-one sessions.
26. In February 2024, the school reported that Y was receiving about 30 minutes of tuition each week. The same level of support continued throughout the 2023–24 academic year.
27. In October 2024, the school confirmed Y had engaged in some tuition provided by the school both online and in person with school staff but had not attended the school site at all that year.
28. In February 2025, Miss X complained to the Council that Y had not had a suitable school place or proper education for some time. She said this left Y academically behind, socially isolated, and anxious. She also said caring for Y without proper provision had caused her financial difficulties.
29. The Council declined to investigate, saying the issues were too historic, and suggested Miss X submit a new complaint if there were more recent concerns. Miss X then brought her complaint to the Ombudsman.
30. In response to my enquiries, the Council could not show it had reviewed Y’s attendance or considered whether it had a legal duty to arrange alternative provision under section 19. It accepted it should have done this and explained it has since put new processes in place to ensure similar concerns are properly considered.
31. The Council has since arranged suitable alternative provision for Y from September 2025. This includes three weekly sessions, with the potential for additional sessions as exams approach. The Council has also demonstrated that, within this provision, it has considered the specialist support set out in Section F of Y’s EHC Plan and taken steps to ensure this is now delivered.

My findings

32. The Council was aware Y was not attending school and therefore not receiving the provision specified in Section F of their EHC Plan. It did not take timely action to secure that provision or to consider whether it had a duty to arrange suitable alternative education. This was fault. As a result, Y went without the specialist support they were entitled to, and both Miss X and Y experienced avoidable uncertainty and distress.
33. The Council has recognised these faults and offered a financial remedy of £6,500, made up of:
• £1,000 for each school term for non-consideration of section 19;
• £200 for the distress and frustration caused to Miss X; and
• £300 for the distress and impact on Y.
34. I have considered whether the Council’s remedy is in line with the expectations in our Guidance on Remedies. In my view, the amount offered exceeds what I would normally recommend in the circumstances. I am therefore satisfied with the Council’s offer and do not recommend anything further.

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Action

35. To remedy the injustice caused by the above faults, within four weeks of the date of our final decision, the Council has agreed to:
• apologise to Miss X in line with our guidance on Making an effective apology; and
• pay Mrs X its proposed remedy of £6,500.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman