Summary: Mrs X complained about the Council’s failure to provide her daughter (Y) with suitable education and to ensure she received provision included in her Education Health and Care Plan. We found fault with the Council’s failure to decide whether it owed the alternative provision duty to Y and its failure to monitor any educational arrangements made by Y’s school. The Council’s fault caused injustice to Y and Mrs X. The Council has agreed to apologise and make payments offered in its stage two complaint response.

The complaint

1. Mrs X complains about the Council’s failure to provide her daughter (Y) with suitable full-time education and to ensure she received provision included in her Education, Health and Care (EHC) Plan for over two years.
2. Mrs X says the lack of education had a negative impact on every aspect of Y’s life. The Council’s failings, Mrs X says, have also affected her own well-being and ability to work.

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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. 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. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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.
8. 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)
9. 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)
10. 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

11. I have investigated what happened between August 2024 and the end of July 2025. This is because:
• as explained in paragraph four we normally investigate what happened within 12 months from when the complainant came to us. Mrs X brought her complaint to us in August 2025. I cannot see any good reasons to investigate earlier events.
• as explained in paragraph five we should allow councils to review and respond to any issues before we look at them. The Council provided its stage two response to Mrs X’s complaint at the end of July 2025 therefore any later failings would need to be raised with the Council first.
12. We would normally not investigate anything that can be appealed. The Council issued Y’s EHC Plan with no amendments to Section I at the beginning of March 2025. The Council told Mrs X of her appeal rights. If Mrs X was not happy with the school named in Section I she could have appealed. I found, however, that we could not expect her to do so, as the Council had agreed Y’s school could not meet her needs and started consulting with special schools. Therefore I have investigated what happened after the Council issued a final EHC Plan for Y.
13. I have not investigated whether Y’s school fulfilled its duties towards Y when she was on the school’s roll. We cannot review schools’ actions.

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How I considered this complaint

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

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What I found

Law and guidance

EHC Plan review

16. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
18. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
19. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment.

Alternative provision

20. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
21. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
22. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
23. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
24. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.

Delivery of special educational provision

25. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
26. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

What happened

Background

27. Y is of primary school age. She is autistic with demand avoidance and is disabled. She has an EHC Plan.
28. In January 2024 Y stopped attending school (School 1).
29. In March 2024 School 1 told Y’s case officer (Case Officer 1) that Y tried to attend school the previous week but it was not successful. At the beginning of March Y had a session at the animal therapy provision.
30. In July 2024 School 1 told the Council Y was not attending school. School 1 ended animal therapy provision because Y failed to turn up for another session.

From August 2024

31. At the end of November 2024 the Annual Review meeting for Y’s EHC Plan took place. School 1 noted its difficulties to engage Y in any kind of school-based learning in a mainstream setting. Y had been communicating with a family support worker and had weekly sessions with her.
32. The Council sent its proposed changes to Y’s EHC Plan to Mrs X in mid-February 2025.
33. At the beginning of March 2025 the Council issued Y’s final EHC Plan, naming School 1 in Section I. The Council told Mrs X she could appeal to the SEND Tribunal if she was unhappy with the content of the plan. The Council also confirmed it would consult with a special school chosen by the parents (School 2) and would consider whether Y needed a specialist placement at the next special educational needs (SEN) panel meeting.
34. At the end of March the Council told Mrs X it was sending consultations to specialist settings. The Council has already consulted with School 2 and was waiting for their response. The Council also said it gave extra funding to School 1 to secure alternative provision for Y in the meantime.
35. In April and May 2025 the Council consulted with more specialist placements for Y.
36. In mid-May 2025 Mrs X complained about the Council’s failure to find a suitable school for Y and to respond to her. She also raised concerns that Y had not been receiving any work from School 1.
37. At the end of May Y’s new case officer (Case Officer 2) apologised for the delay in responding to Mrs X’s correspondence. He said School 2 did not offer Y a place and the Council intended to consult with other special schools. School 1 should, they said, be securing education for Y even if Y could not attend the setting.
38. The Council responded to Mrs X’s complaint at the end of June. It said:
• it was School 1’s responsibility to provide education and specialist support for Y in line with her EHC Plan;
• the Council’s delay in finding a suitable special school for Y was caused by the shortage of specialist settings;
• School 1 had previously explored the use of alternative provision.
39. During a telephone call in mid-July 2025 Mrs X told a new case officer (Case Officer 3) that Y had not received any education in the current school year. A piece of work sent by School 1 was not suitable for Y because of her disability.
40. Mrs X asked the Council to consider her complaint at stage two. The Council responded a month later. School 1 named in Section I of Y’s EHC Plan, it said, was responsible for providing education to Y. In September the Council would discuss with School 1 arrangements for interim alternative provision while the Council was looking for a suitable specialist placement for Y. The Council apologised for its delays and offered Mrs X £500 for her distress and £900 for the delay in putting suitable educational provision in place in spring term 2025.
41. At the beginning of August 2025 Mrs X brought her complaint to us.
42. At the beginning of September the Council told Mrs X it would arrange alternative provision for Y, consisting of tutoring and mentoring. Mrs X asked to start with mentoring and at the beginning of November the provision started. In mid-November Mrs X said Y could not access this provision. She said Y had to have a mental health review before accessing any education.

Analysis

43. In November 2024 the Council reviewed Y’s EHC Plan. At the review meeting School 1, the Council’s representative, Y’s social worker and Mrs X discussed Y’s non-attendance and School 1’s inability to meet Y’s needs.
44. Following this meeting the Council:
• should have decided if it owed Section 19 duty to Y as described in paragraphs 20 and 21;
• if accepted it owed Section 19 duty to Y should have either ensured School 1 arranged suitable education for Y or should have arranged it itself.
45. Until March 2025 the Council failed to make a decision about Y’s education. In March 2025 the Council gave extra funds to School 1. By doing this the Council seemed to have accepted that School 1 was not accessible to Y. The Council asked School 1 to arrange education for Y but failed to keep oversight to ensure it happened.
46. As explained in our Focus Report ‘Out of school, out of sight? Ensuring children out of school get a good education’: “where councils arrange for schools or other bodies to carry out their functions on their behalf, the councils remain responsible.” The Council should have checked whether Y was accessing education and specialist provision. This did not happen. The Council relied on School 1. In response to Mrs X’s correspondence from May 2025 and to her complaint the Council consistently claimed it was School 1’s responsibility to make necessary arrangements. This situation lasted until the end of the school year 2024/2025.
47. The Council failed by:
• not deciding on its Section 19 duty for Y and not ensuring delivery of special educational provision to her;
• not checking whether School 1 made suitable educational arrangements for Y;
• delay in responding to Mrs X’s correspondence.
48. The Council’s failings listed above are fault. They caused injustice to Y and Mrs X:
• for Y – on the balance of probabilities I consider that if, after the review of Y’s EHC Plan in November 2024, the Council had decided on its Section 19 duty it would have accepted it owed it to Y. This is because in March 2025 Y’s situation did not change and the Council seemed to have accepted this duty by providing extra funding to School 1. I considered whether, if not for the Council’s fault, Y would have received education in the spring and summer terms of 2025. Considering Y’s inability to access animal therapy and home tutoring offered to her by School 1 in 2024 as well as her difficulties in engaging with the provision arranged by the Council in the autumn term of 2025, it is uncertain whether Y would have been able to access any educational provision in the spring and summer terms of 2025. Therefore Y’s injustice caused by the Council’s failings is the uncertainty of what might have been different rather than the loss of provision.
• for Mrs X – Mrs X was increasingly frustrated by the lack of support from the Council for Y’s education. She spent much time alerting the Council to the negative impact of the lack of education on Y. Sometimes the Council’s officers failed to respond. The Council’s failings also caused Mrs X uncertainty as to whether Y would have received any education if the Council had acted properly.

Personal remedies

49. In its stage two complaint response the Council offered Mrs X some financial payments. I consider they are suitable to remedy Y’s and Mrs X’s uncertainty and distress.

Service improvement

50. In March and September 2025 we issued decisions where we recommended the Council to improve its service by:
• sharing the findings of the Ombudsman’s investigation and our focus report “Out of school, out of sight?” with relevant officers. This is to highlight good practice and to emphasise the Council should consider its section 19 however it is notified about a child's absence.
• reminding the relevant staff that the annual review should be used to check that EHC Plan provision is in place and that the Council is meeting its statutory duty in this regard.
51. The Council has also shared with us its “Education and Skills Quality Assurance Framework” of June 2024 which specifies that each month the Director of Education reviews reports showing all complaints and compliments.
52. The events of this complaint happened at the same time as issuing our decisions which recommended service improvements for alternative provision and the EHC Plans reviews. We recognise the Council needs some time to address its failings identified in our recent investigations. We will monitor the effectiveness of the Council’s actions following our recommendations through our casework.

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Action

53. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified. 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 I have recommended;
• pay Mrs X £900 to recognise Y’s uncertainty and £500 for Mrs X’s distress, as offered in the Council’s stage two complaint response;
• ensure that this decision is shared with the Council’s Director of Education.

The Council will provide the evidence that this has happened.

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Decision

54. I find fault causing injustice. The Council has accepted my recommendations so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman