Summary: Miss X complained the Council failed to provide alternative education or a school place when her son was permanently excluded from school in June 2024. Miss X also complained about delays in reviewing and finalising her son’s Education, Health and Care (EHC) Plan and poor communication. We found the Council’s failure to ensure Y received a suitable education for a term and a half is fault. As was the poor communication and failure to keep Miss X informed. This fault has caused Miss X and Y an injustice.

The complaint

1. Miss X complained the Council failed to provide alternative education or a school place when her son was permanently excluded from school in June 2024. As a result, her son missed out on educational provision to which he is entitled.
2. Miss X also complained about delays in reviewing and finalising her son’s EHC Plan and poor communication from the Special Educational Needs (SEN) team.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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 courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. This means that if a young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
11. In this case the Council issued a final EHC Plan on 19 February 2025 and Miss X’s appeal to the SEND Tribunal concluded in October 2025. I am unable to consider events during this period.

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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.

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What I found

Education, Health and Care (EHC) Plan.

14. 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 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. (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)

What happened here

20. Miss X’s son Y has an EHC Plan and attended an independent specialist school, School 1. School 1 ended Y’s placement with effect from the end of the summer term in July 2024.
21. Miss X says she repeatedly tried to contact Y’s SEN worker as Y did not have a school place for September 2024. An officer contacted Miss X in late August 2024 asking her to look for schools and confirm her preferences and the Council would then follow this up.
22. The officer also raised the possibility of a tutor in the meantime. The Council’s records note Miss X said Y may not engage with an online learning platform but would try a face to face tutor. However, Miss X says she did not want a tutor as Y has not worked well with one within their home or in the community.
23. Miss X provided details of her preferred school the following day. She then chased the Council for an update in September 2024. The Council did not respond for almost a month. It then told Miss X it was looking for tuition while looking for a full time placement. The tuition search was due to close the following week and an officer would call Miss X to catch up.
24. On 24 October 2024 the Council told Miss X it had identified a tutor to support Y. If Miss X agreed to this, the Council said it would ask the SEN Panel for approval. Miss X contacted a support service who she says responded to the Council on her behalf. In November 2024 the support service suggested Miss X make a complaint as the Council had not responded to them.
25. Miss X made a formal complaint in late November 2024. She complained her son was not in school and there did not seem to be any plan to find him a suitable school. Miss X was concerned about the impact a lack of education was having on Y’s mental health and wanted the Council to find a school place as soon as possible.
26. In early December 2024 the Council began a search of independent specialist schools through its out of area team. The Council reviewed this in early January 2025 and chased up the schools that had not responded. Those that had responded had not offered Y a place.
27. The Council also responded to Miss X’s complaint in early January 2025 and apologised for the delay. It noted School 1 had ended Y placement and explained it had limited powers to influence independent special schools. Even if an independent special school is named in Section I of an EHC Plan it has no legal obligation to admit that young person.
28. The Council confirmed it was searching for a new school and an officer would update Miss X on the progress. It also accepted that the communication from the SEN service had not been sufficiently proactive, and Miss X should not have had to chase updates. The Council also acknowledged Miss X’s concerns about a tutor. It confirmed tuition would only be an interim measure and did not alter the Council’s responsibility to find Y a long term educational setting.
29. Miss X was not satisfied by the Council’s response and asked for her complaint to be considered further. She said the situation remained the same, her son still did not have a school place and she had received no contact from his SEN worker. Miss X was also unhappy the Council had not issued an amended EHC Plan, which she also considered was delaying Y’s education.
30. Miss X asked for copies of all school consultations and for details of the Council’s out of area search for suitable schools.
31. The Council responded to Miss X’s stage 2 complaint in early April 2025. It noted Y’s EHC Plan had now been finalised naming the type of provision rather than a school in section I. This allowed Miss X to appeal to the SEND Tribunal which she had now done.
32. In relation to out of area consultations the Council confirmed this had been refreshed twice and had included Miss X’s preferred school. It detailed six schools that had said they could not meet Y’s needs and two other schools that had not responded. The Council confirmed it would continue to work with Miss X to identify a specialist setting for Y.
33. Miss X remained dissatisfied and has asked the Ombudsman to investigate her concerns. She says Y has already been removed from the school the Council claimed was her preference. This school was not her preference. Miss X says she has repeatedly told the Council which is her preferred school, but it has ignored her.
34. Miss X complains Y has been out of education for almost a year at a crucial time in his education. This has also affected his social needs and Miss X is worried about Y’s mental health.
35. Since complaining to us Y has returned to School 1. The Council has issued a final EHC Plan naming School 1 and the tribunal proceedings have concluded.
36. In response to my enquiries the Council says that when Y’s place at School 1 was terminated, it offered tuition support. It says this support could have partially met the SEN provision outlined in the EHCP, particularly in relation to cognition and learning. The Council says Miss X did not respond to this offer. It then initiated a search for an alternative Independent School placement.
37. The Council says Y was recorded as a child missing from education while it pursued consultations to secure a suitable full-time placement. The Council says that due to the lack of a confirmed placement, the provision set out in Y’s EHC Plan has not been delivered by an education professional.

Analysis

38. I consider the Council was at fault for failing to ensure Y received a suitable education for a term and a half. Councils have a duty to arrange suitable education for a child it knows cannot attend school. This fault caused Y a significant injustice.
39. Y ‘s place at School 1 ended in July 2024 at the end of the summer term. He did not then receive any educational provision or the SEN provision set out in his EHC Plan for the whole of the following academic year. However, as set out above I am only able to consider events up to February 2025 when Miss X exercised her right of appeal to the SEND Tribunal.
40. Although the Council was aware in July 2024 that Y did not have a school place for September 2024, it does not appear to have consulted any schools until December 2024, after Miss X complained. The Council then consulted a number of schools but they all declined to offer Y a place as they said they were unable to meet his needs.
41. The delay in identifying a suitable school for Y is fault as a result of service failure.
42. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault.
43. Without a school placement Y has not received an education or the SEN provision specified in his EHC Plan. The records show the Council searched for and identified a potential tutor for Y in October 2024. It is unclear why the Council had not started this search sooner, in time for the start of the academic year. The Council says Miss X did not respond to the offer of a tutor, while Miss X says the Council did not respond to communication from the support service, who were assisting her.
44. I note Miss X had raise concerns about the suitability of a tutor as Y was unlikely to engage. The Council acknowledged Miss X’s concerns about a tutor in its complaint response but there is no evidence the Council then contacted Miss X again to discuss the tuition or offered any alternatives.
45. The poor levels of communication and failure to keep Miss X up dated are also fault.
46. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment of between £900 to £2,400 per term to acknowledge the education they have missed and help them to catch up. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
47. In the circumstances I consider a payment of £2,100 for the failure to provide a full-time education for a term and a half between September 2024 and February 2025 would be appropriate.

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Action

48. The Council has agreed to:
• apologise to Miss X and Y for not providing a suitable education between September 2024 and February 2025. 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 £2,100 in recognition of Y’s missed education between September 2024 and February 2025. Miss X should use this for Y’s educational benefit as she sees fit.
• pay Miss X £200 to recognise the frustration, distress and uncertainty the Council’s poor communication has caused her.
49. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

50. 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