Summary: The Council was at fault. It did not provide Mrs X’s child, Y, with a suitable education or their special educational provision to which they were entitled. The Council will apologise to Y and pay Mrs X a symbolic payment to acknowledge Y’s missed education, missed special educational provision and Mrs X’s uncertainty. It will put a service improvement in place.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with a suitable education since 2022. She said Y had been out of education since October 2024 due to their mental health and school-based anxiety. She said Y was not provided with any alternative provision or their special educational provision in their Education, Health and Care (EHC) Plan. Mrs X said it affected the whole family and she had to reduce her working hours to support Y. She said Y missed education to which they were entitled and Y’s anxiety around education increased causing their mental health to deteriorate.

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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. 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 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 statement.
5. The law says we cannot investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. This also applies to someone who has not used the right of appeal but reasonably could have done so. 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).
6. 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.
7. 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).
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

9. As explained in paragraph three above we cannot investigate late complaints unless we decide there are good reasons. Mrs X complained to the Ombudsman in early July 2025 about events starting in 2022. The period between 2022 and July 2024 is late and there are no good reasons to exercise discretion to investigate the entire late period because Mrs X could reasonably have complained to us earlier.
10. I have investigated between July 2024, a year before Mrs X complained to us and mid-May 2025 after the Council issued Y’s final amended Education, Health and Care (EHC) Plan meaning Mrs X had appeal rights to the special educational needs and disabilities (SEND) Tribunal, which she did not use.

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How I considered this complaint

11. I considered evidence provided by the Council and Mrs X and spoke to her on the telephone. I also considered relevant law, policy and guidance and our guidance on remedies published on our website.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

13. 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. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.

Appeal rights to the SEND Tribunal

14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
15. The courts have established that if someone has appealed to the SEND 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
16. 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.

Maintaining the EHC Plan

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).
18. 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 its legal duty. At a minimum we expect it 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.

Section 19 duty

19. Council’s 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 provision.
20. 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’).
21. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
22. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full-time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

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

What happened

24. Y is of secondary school age and has special educational needs, autistic spectrum disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), anxiety and social, emotional and mental health needs. Y attended several secondary schools.
25. Y first had an Education, Health and Care (EHC) Plan in late July 2024. Section I of this Plan named a mainstream day-maintained school, School 1. The key parts of Section F in this Plan included the requirement for Y to receive:
• daily small group structured catch-up key-topic sessions, literacy and maths intervention led by a learning support assistant;
• daily one to one classroom support to monitor and check in with Y during classroom activities;
• twice weekly small group safety and danger awareness and independent travel intervention led by a key adult;
• weekly one to one social understanding intervention led by a key adult to build social understanding of situations;
• weekly small group social skills and friendship intervention led by a key adult;
• weekly one to one emotional understanding intervention led by a key adult; and
• three times weekly small group social, emotional literacy intervention led by a Special Educational Needs and Disabilities coordinator (SENDco) or learning support assistant.
26. Y started to attend School 1 in September 2024. Mrs X, Y’s mother, said Y did not receive any transition or induction to School 1 due to Y’s EHC Plan being finalised at the end of the summer 2024 term. Mrs X said when Y attended School 1 it increased their school-based anxiety and their mental health declined. Y stopped attending School 1 in October 2024. Mrs X, and School 1 did not feel the school could meet Y’s needs or provide all their special educational provision. Mrs X contacted the Council in October 2024 and requested a change in educational placement for Y and gave the Council her parental preferences. The Council was aware at this point Y was not attending School 1.
27. Mrs X said Y received a worksheet from School 1 for two weeks once they stopped attending school. She said the work did not help Y academically. She said since October 2024 Y had not received any education or special educational provision from School 1 until late April 2025.
28. In late November 2024 a Council multi-agency panel agreed to consult Mrs X’s school preferences. In early December 2024 it consulted two special schools for Y. One of the schools did not feel it could meet Y’s special educational needs and the other school did not have space available for Y.
29. In early January 2025 in line with Mrs X’s parental preferences the Council consulted five other schools for Y. Y did not receive an educational placement offer.
30. The Council and Mrs X said regular meetings took place every six to eight weeks between Mrs X, School 1 and Y’s Council caseworker, Officer 1. Mrs X said these meetings discussed educational placements for Y and funding but did not include a discussion on Y’s educational provision.
31. In mid-January 2025 and in early February 2025 a Council multi-agency panel considered Mrs X’s request for Y to repeat the current school year and to be provided home tuition. The Council decided as School 1 was named in Y’s EHC Plan, School 1 was responsible for their learning which included any tuition considered appropriate using funding allocated to Y’s EHC Plan. The Council also increased Y’s EHC Plan funding in late February 2025.
32. In late April 2025 Officer 1 held Y’s annual review with Mrs X. School 1 did not attend because it was held in the school Easter holiday. Mrs X confirmed her school preference for Y. The agreed action was to amend Y’s EHC Plan and then consult more educational settings. It was agreed Y would receive tuition from late April 2025 with a tutor from an alternative provision provider.
33. In late April 2025 Mrs X made a stage one complaint to the Council. She complained about a lack of educational provision for Y. She said the Council had continued to fail Y and so they had missed almost two years of education. She said she had asked the Council for Y to repeat their current school year. Mrs X said Y remained on roll at School 1 but they were not attending school and had not done so since October 2024. Mrs X said the communication around Y’s educational placement had been sporadic and unclear.
34. Four days later Y’s tuition started, it focused on Maths and English. Mrs X said this was one-to-one, face-to-face tuition in a local library three times a week for approximately two hours per session. A total of around six hours per week. Mrs X said Y had different tutors and found the inconsistency hard and Y’s anxiety around others increased. The Council said School 1 was responsible for monitoring and review of Y’s tuition, attendance and annual reviews.
35. In early May 2025 the Council issued Y’s draft EHC Plan. Y’s final amended EHC Plan was issued in mid-May 2025 which continued to name School 1. Mrs X was given her appeal rights to the SEND Tribunal but did not submit an appeal.
36. In late May 2025 the Council issued its stage one complaint response. It set out the key Council decision dates on Y’s education since October 2024 and upheld Mrs X’s complaint. It said Y’s education had been disrupted due to their deteriorating mental health and it was committed to working with Mrs X and Y to continue to search for an appropriate educational setting for Y. It asked Mrs X for other schools she would like the Council to consider and consult which Mrs X provided.
37. The same day Mrs X remained unhappy and escalated her complaint to stage two of the Council’s complaints process. She said School 1 was an unsuitable placement for Y and complained about the delay in arranging alternative education for Y.
38. In mid-June 2025 the Council issued Mrs X’s stage two response and said it acknowledged Mrs X felt School 1 was an unsuitable placement for Y and since Mrs X’s request it had agreed a change of placement. It said it had consulted seven schools in line with Mrs X’s school preferences but Y had not been offered a school place. It said Officer 1 had worked closely with Mrs X and they had four, six weekly catchups including with the School 1 SENDco. The Council said it continued to consult with schools for Y in line with Mrs X’s preferences. It said whilst another school was secured for Y, School 1 would continue to be named in their EHC Plan. It said School 1 was continuing to provide tuition for Y. It acknowledged School 1 raised concerns about being able to meet Y’s needs but said it had worked with School 1 to secure a place for Y and it was the Council’s decision which school was named in Y’s EHC Plan. It said she had a right of appeal to the SEND Tribunal if she did not agree with School 1.
39. Mrs X remained unhappy and complained to us.
40. Mrs X told me that in July 2025 a Council panel agreed funding for Y to attend a special school, School 2, from September 2025. Y started to attend School 2 in September 2025 and started to repeat the previous school year in line with Mrs X’s wishes. She said Y still struggled with friendships.

My findings

Section 19 and section F provision

41. The Council was aware in October 2024 Y was not attending School 1. There is evidence Officer 1 kept in regular contact with Mrs X and School 1 but this related to discussions about school placements and funding not about options to meet Y’s immediate educational needs. Y initially received two weeks of worksheets from School 1. After this Y did not receive any education and Y was not provided their section F provision set out in their EHC Plan. This failure continued until late April 2025. In late April 2025 Y started receiving approximately two weeks of tuition for approximately six hours a week before the Council issued Y’s final amended EHC Plan.
42. The Council said in its complaint responses it acknowledged Y’s education had been disrupted. A Council panel also said as School 1 was named in Y’s EHC Plan, School 1 was responsible for Y’s learning which included any tuition considered appropriate using funding allocated to Y’s EHC Plan. However, as explained in paragraphs 17-23 above, the duty is on the Council to ‘secure’ the special educational provision in a child or young person’s EHC Plan. To do this we expect councils to act promptly when they are aware a child is not receiving that provision. The Council also has a duty to comply with its section 19 responsibilities.
43. When the Council is consulting for school placements it still has a duty to provide a suitable education and section F provision. There is no evidence the Council complied with these duties and relied on School 1 to provide Y their tuition and section F provision. This was fault and meant Y did not receive education or the special educational provision to which they were entitled. It caused Mrs X uncertainty about what would have been provided if the Council had considered its section 19 and section 42 duties.

Symbolic payment

44. In deciding a suitable symbolic payment to recognise the impact of Y’s lost education and special educational provision I considered Y did not receive any education for the majority of the period between October 2024 and mid-May 2025. However, I also noted Y is now repeating their school year. This action partly puts them back into the position they would have been but for the fault. Finally though, I also recognise that the Council’s fault means Y lost group, friendship and emotional section F provision which covered a long period of time and likely meant Y’s anxiety around others increased.

Service Improvements

45. The Ombudsman has already made service recommendations to this Council on similar section 42 cases and how it consults educational placements. These service improvements have been made during and since the events in this investigation. On this basis no further recommendations were needed in relation to these issues. However, I did recommend action with respect to section 19 duties which the Council has agreed to action. This is because although we have made previous recommendations in this regard, the evidence from this case is that these have not prevented repeated fault.

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Action

46. Within one month of the final decision the Council will:
1. apologise to Y and pay Mrs X a symbolic payment of £3,000 to acknowledge the impact of Y not receiving a suitable education and the impact of Y’s lost special educational provision between October 2024 until Y’s EHC Plan was issued in mid-May 2025. It also caused Mrs X uncertainty and caused her additional caring responsibilities and a wider impact on the family. This remedy was calculated at £1,500 per term which is in line with the Ombudsman’s guidance on remedies. 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.
47. Within three months of the final decision the Council will:
1. review its policy and procedures to ensure it retains oversight and control of its section 19 duty. The Council has a duty to retain responsibility for ensuring children receive suitable education, even where they remain on a school roll and ensuring it considers whether the Council should arrange alternative provision for a child, even when it is trying to find a new school place for that child.
48. The Council will provide us with evidence it has complied with the above actions.

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Decision

49. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused and prevent recurrence of the fault. The Council has already put in place actions to improve its service in relation to its section 42 duties.

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Investigator's decision on behalf of the Ombudsman