Summary: Miss X complained the Council failed to arrange alternative provision for Y after he was excluded from school and failed to review his Education, Health and Care Plan in line with statutory guidance. The Council was at fault for not securing alternative provision for Y, causing uncertainty and frustration. The Council has agreed to apologise and make a payment to recognise the uncertainty.

The complaint

1. Miss X complains the Council failed to ensure her son, Y received the education he was entitled to from when he was excluded from school in May 2023 up until September 2024. Miss X says the Council named a new school in Y’s Education, Health and Care (EHC) Plan from September 2024, but he has only been able to attend on a part-time basis and the Council has done nothing to arrange alternative provision for him. Miss X also says the Council began an early annual review of Y’s EHC Plan in November 2024 but did not complete this within statutory time limits. As a result, Miss X says she has been caused real uncertainty and distress, her appeal rights have been frustrated, and Y has not received a suitable education.

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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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)
5. 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)
6. 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

7. We cannot usually investigate complaints about events that took place more than 12 months before they were raised with the Ombudsman. Miss X first brought her complaint to us in March 2025, meaning anything that took place before March 2024 would be considered a late complaint.
8. However, the delay was the result of communication issues with the Council. For this reason, I have decided to exercise discretion to look back as far as the point Y was excluded from school in May 2023.
9. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
10. I have investigated up to the point the Council gave its final response to Miss X’s complaint in November 2024. If Miss X wants to raise a complaint about anything that has happened since November 2024, including any delays in completing the November 2024 annual review, she would need to contact the Council directly.
11. Any mention below of events that took place before May 2023 or after November 2024 are for reference only.

Back to top

How I considered this complaint

12. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
13. Miss 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 law and policy

EHC Plan

14. A child or young person with (SEN) 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. 
15. 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

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. [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.
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. 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)
19. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022 .

What happened

20. I have summarised below some key events leading to Miss X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
21. Y has SEN and his education is supported by an EHC Plan. At the start point of my investigation, in May 2023, Y’s EHC Plan named School A, a mainstream school.
22. Y was excluded from School A in May 2023 and the Council became responsible for arranging suitable full-time education for him.
23. The Council consulted with School A and agreed to find a managed move to another mainstream school to avoid a permanent exclusion while it considered whether he needed specialist provision. The Council consulted with another mainstream school, but they could not accept Y and his permanent exclusion was confirmed.
24. By the end of May 2023, the Council had considered Y’s case and decided a specialist school setting was more appropriate to meet his needs.
25. In June 2023 the Council referred Y to an alternative education provider but they said they could not provide the support required to meet his needs.
26. The Council then discussed another alternative education provider with Miss X. Emails show Miss X expressed that this provider was not appropriate to meet Y’s needs, and the Council did not pursue this any further.
27. The Council began consulting with specialist schools but could not find one with available places. School B, a specialist school, said it could meet Y’s needs and offer him a place, but this would not be until September 2024.
28. In the meantime, the Council continued to consult with mainstream schools to explore how it could make education available to Y in the interim.
29. In August 2023 the Council made further referrals to alternative education providers but could not find one to meet Y’s needs, and Miss X expressed that she wanted Y to attend a specialist school setting instead.
30. The Council did not secure alternative provision for Y across the school year 2023-24.
31. In November 2023 the Council told Miss X it had made a referral to an alternative education provider, but Miss X said she did not believe this was appropriate as it did not represent the education Y needed. The Council has said it has been unable to find evidence this was followed up to secure funding or the offer was ever agreed.
32. The Council issued an amended EHC Plan for Y in February 2024, naming School B from September 2024. The EHC plan acknowledged that Y did not currently have a school and had not been in education since May 2023.
33. Y started at School B in September 2024, but he was suspended in September 2024 and November 2024.
34. Responding to a complaint made by Miss X, the Council explained it had consulted with numerous schools and alternative education providers but agreed it did not secure appropriate provision for Y by the end of the 2023/24 school year. The Council also accepted its communication with Miss X had been inconsistent. The Council apologised to Miss X and offered to pay her £300 in recognition of the uncertainty caused, and £5,600 to be used towards Y’s educational outcomes in recognition of the missed education from November 2023 to July 2024.

Analysis

35. The Council is under a duty to make suitable alternative provision available for children who are absent from school because of illness, exclusion or otherwise and must put this provision in place without delay.
36. From May 2023 the Council was aware Y was not attending School A and did not have access to alternative provision. The evidence the Council has provided shows it consulted with different alternative education providers in an attempt to source alternative provision, but nothing was put in place.
37. As a consequence, Y did not receive any educational provision he would have been entitled to between May 2023 and July 2024, approximately three and a half school terms. This is fault. It is not my role to say what alternative provision would have been suitable for Y during that time, but this fault caused uncertainty, which is injustice.
38. In its complaint response to Miss X, the Council accepted it was at fault, causing an injustice, between November 2023 and July 2024. The Council has paid Miss X £5,600 in recognition of this and I find that to be a suitable remedy for the injustice across that time.
39. However, my view is fault and injustice started from May 2023. While it is clear the Council made numerous attempts to source alternative provision between May 2023 and November 2023, it was still unable to do so. The Council did make an offer of alternative provision to Miss X, but emails show she explained why she did not feel this would be a realistic resolution and I cannot see the Council followed this up to reach any real resolution. Y did not receive any educational provision between May 2023 and November 2023. For this reason, I find the Council ought to make an additional payment to recognise the injustice between May 2023 and November 2023.
40. From September 2024, School B was named on Y’s EHC Plan and provision was available for him there. I do not find the Council at fault for failing to secure provision for Y from September 2024 until the end point of my investigation in November 2024.

Back to top

Action

41. To remedy the injustice identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Miss X to apologise for the additional injustice caused by its failure to make educational provision available to Y between May 2023 and November 2023. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Miss X a further £1,000 to recognise the injustice caused by the failure to make educational provision available to Y between May 2023 and November 2023.
42. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman