Summary: Miss X complained the Council failed to ensure her son received appropriate education and provision. We find the Council was at fault for its delay in providing alternative provision for Miss X’s son. It was also at fault for its failure to provide the special educational provision in Miss X’s son’s Education, Health and Care Plan and for its communication with Miss X. This caused Miss X distress, uncertainty and frustration and Miss X’s son missed out on education and provision. The Council has agreed to apologise to Miss X and make payments to reflect the injustice caused.

The complaint

1. Miss X complained the Council failed to ensure her son, Y, received appropriate education and provision.
2. Miss X says the Council’s faults have negatively affected Y’s mental health and welfare. She says Y has no friends and spends most of his days at home.

Back to top

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. 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)
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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

Back to top

What I have and have not investigated

7. I have investigated Miss X’s complaint from March 2024 to March 2025 (when Miss X received her final response to her complaint and referred it to us). Events before March 2024 are late, and there are no good reasons why Miss X did not refer her earlier concerns to us sooner. Therefore, I have not exercised discretion to investigate them.

Back to top

How I considered this complaint

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

Back to top

What I found

Special educational needs

10. 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. 

Maintaining the EHC Plan

11. 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)  
12. 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

13. 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.
14. 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)

What happened

15. This chronology provides an overview of key events in this case and does not detail everything that happened.
16. Y has special educational needs and an EHC Plan.
17. Miss X contacted the Council in April 2024. She said Y’s school (School X) had implemented a new rule where children had to hand their mobile phones into reception when they arrived. Y could not do this, and he was not allowed to enter the building. She said School X said it could meet Y’s needs. However, she was concerned Y could not manage the new rules.
18. The Council responded on the same day. It said it was happy to contact School X and arrange a meeting to discuss the issues further. It also said if she had any preferences for specific settings for Y it would consult with them.
19. School X contacted Miss X. It said it would put together a three-week timetable for key members of the team to support Y with a reintegration programme back into the classroom.
20. Miss X sent the Council several chaser emails. She said Y was at home without an education. She also said a member of staff from School X had failed to turn up for an agreed home visit. The Council responded in early May and apologised for the delay. It said School X said it could meet Y’s needs. It also said it had arranged a meeting with School X to discuss matters further.
21. The Council had a meeting with School X, Miss X and Y in late May. School X said it had put a plan in place and adapted Y’s timetable. It said it had offered home learning, but Miss X said Y was not ready for this. It also said most schools had a mobile phone policy, but it would try and provide a compromise. All parties agreed Y would return to School X after half term. School X said it would give Y access to the class phone. School X also said it would be beneficial for Y have an iPad. The Council said it would make a referral to its IT team.
22. Miss X contacted the Council and School X twice in June. She said Y could not access School X and none of the actions from the meeting had been implemented. The Council responded and said the team that dealt with purchasing equipment was dealing with a lot of referrals. This meant it was taking them a while to process the request for Y’s iPad.
23. The Council emailed Miss X in late September and provided her with an update on consultations it had sent to other schools.
24. The Council met with Miss X and School X in early October to review Y’s EHC Plan. School X said it could meet Y’s needs. Miss X said Y was still not receiving an education. There was a discussion in the meeting about alternative provision for Y.
25. The Council emailed Miss X the following week. It said it could not provide additional funding for Y to access alternative provision as there was funding in place at School X that he was not utilising.
26. School X gave notice in early November and said it could not meet Y’s needs. It said it would end the placement at the end of the autumn term (December 2024). The Council emailed Miss X in early November and said it would look for alternative provision for Y. It also updated her on the consultations it had to potential schools for Y.
27. Miss X continued to send several emails to the Council with concerns about Y’s education. The Council agreed to widen its search for alternative provision for Y.
28. Miss X complained to the Council in December. She said it had failed to provide Y with a suitable education and put any alternative provision in place.
29. The Council emailed Miss X in mid-December and provided her with updates on two alternative provision settings for Y. Miss X said she was happy to visit the settings.
30. The Council responded to Miss X’s complaint at stage one in late December. It said there had been a delay in securing alternative provision for Y since his placement at School X ended. It apologised for this.
31. Miss X contacted the Council in early January 2025. She said she had contacted one of the alternative provision settings, but it could not provide transport for Y. She asked whether the Council would provide transport for Y. She chased for a response two weeks later. The Council responded and said it could request transport.
32. Miss X referred her complaint to stage two of the Council’s complaints procedure in January. She said she was still waiting for alternative provision for Y.
33. The Council put in place alternative provision for Y in late February for three days per week at one setting, and two days per week at another setting.
34. In March, the Council reimbursed Miss X the money she had spent on Y’s activities from November 2024 to February 2025.
35. The Council issued its final response to Miss X’s complaint in March. It said it was upholding her complaint as Y had been out of education. It apologised for any distress caused. It said it would review any missed provision from the start of term in January 2025 until Y received alternative provision and offer a remedy for this.

Back to top

Analysis

36. The Council became aware of the issues Y was having with School X in April 2024. It arranged a meeting with School X in May 2024. School X said it could meet Y’s needs, and it would put in place a reintegration package for him. The Council was not at fault for allowing School X time to implement the reintegration package and see whether its strategies would work.
37. However, by June 2024, Miss X contacted the Council and said School X had not implemented any of the actions from the meeting and Y was still without an education. There is no evidence the Council reassessed the matter, maintained proper oversight of Y’s education or contacted School X to find out more about what it was doing to support Y. This is fault.
38. The Council agreed to send a referral to its IT team in late May 2024 for Y to have an iPad. While it told Miss X in June 2024 there was a delay in dealing with the referrals, it did not progress this any further and decide whether it would or would not fund the iPad. This is fault.
39. Miss X continued to send emails to the Council in September and October 2024. School X said at the review meeting in October 2024 it could meet Y’s needs. The Council said it could not provide additional funding for Y to access alternative provision as he was not accessing funding from School X. The Council seems to have relied heavily on School X saying it could meet Y’s needs. While it can take this into consideration, it also had a duty to make an independent assessment, look at all the available evidence and consider whether Y had an education that was practicable for him to access. There is no evidence it did so. This is fault.
40. The Council put in place alternative provision for Y from late February 2025 onwards after School X gave notice in November 2024. This delay is fault.
41. The Council also said its section 19 duties applied after December 2024. I disagree. Y did not formally come off School X’s roll until December 2024. However, it was clear when School X gave notice in November 2024 the placement had completely broken down, and Y was not receiving an education.
42. As well as a section 19 duty, the Council also had a legal and non-delegable duty to ensure Y received the section F provision in his EHC Plan. Section F of Y’s EHC Plan details 12 one-hour sensory integration sessions per year from an occupational therapist, speech and language therapy and weekly targeted intervention to help him identify how to keep safe while out in the community. There is no evidence Y received this provision when he was out of school, or when he was receiving alternative provision. This is fault.
43. The Council was also at fault for its communication with Miss X. There were several occasions where Miss X had to prompt the Council and chase for updates.
44. In its stage two response, the Council said it would review what provision Y had missed and offer a remedy. It failed to action this. This is fault.
45. I cannot say, even on the balance of probabilities, what the Council would have decided if it had maintained proper oversight of Y’s education from June 2024 to November 2024 and made an independent and reasoned based decision on whether to provide Y with alternative provision. However, the Council’s fault leaves Miss X with uncertainty. She also has uncertainty about what the outcome would have been if the Council had dealt with the referral for the iPad for Y.
46. Miss X was also caused frustration by the Council’s poor communication and its complaints handling. She was caused distress Y did not receive the education and provision he was entitled to.
47. The Council’s faults have also caused Y a significant injustice. He went without the education and specialist provision he was legally entitled to. Children have a right to an effective education and anytime they miss is difficult to replace later. It was an important year for Y as it was his first year at secondary school.
48. We have found fault with the Council in other similar cases and made appropriate service improvements. Therefore, I have not made any further service improvement recommendations in this case.

Back to top

Action

49. By 17 December 2025 the Council has agreed to:

• Apologise to Miss X for the injustice caused by fault in this statement.
• Pay Miss X £400 for her frustration, uncertainty and distress.
• Pay Miss X £2,200 for the loss of Y’s education and special education provision from November 2024 to March 2025. We suggest Miss X uses this for Y’s educational benefit.

50. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

51. There was fault by the Council, which caused Miss X and Y an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman