Summary: Mr X complained the Council failed to provide access to suitable, full-time education when his son, Y, was permanently excluded from school in March 2024. We find the Council at fault for failing to consider its section 42 duty to provide Y with the special educational provision set out in his EHC Plan. This caused Y to miss out on approximately four and a half terms of special educational provision and caused distress, frustration and uncertainty for Y and his family. The council has agreed to apologise and make a symbolic payment to Mr X to remedy the injustice caused.

The complaint

1. Mr X complained the Council failed to provide access to suitable, full-time education when his son, Y, was permanently excluded from school in March 2024. Mr X also complained the Council failed to complete an annual review which took place in November 2024, it closed the family’s child in need case without any explanation, and its communication and complaint handling has been poor throughout the process. Mr X told us the Council’s failure to provide access to education has been devastating for the family. Mr X also told us Y has lost over two years of learning, confidence and social development and his emotional wellbeing has suffered. Mr X said the impact of supporting Y at home has had a significant impact on his wife’s career and the family’s financial situation.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. Mr X had a right to appeal the final Education, Health and Care Plan issued in February 2026. It was reasonable for Mr X to use this right to appeal. Therefore, I have not investigated the Council’s actions in providing Y’s education after this date.

Back to top

How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr 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

Legal and administrative background

Section 19 duty

8. Section 19 of the Education Act 1996 says that the council 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.
9. 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.
10. 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.
11. 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)
12. 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.

13. 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.

Education, Health and Care Plans

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 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)  

Annual reviews

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. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain 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. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Reassessment of EHC Plans

20. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
21. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Child in Need

22. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
23. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

Council complaints policy

24. The Council has a published complaints policy which sets out a two stage process for handling complaints.
25. At stage one the Council aims to respond within ten working days of acknowledging the complaint. In exceptional circumstances, an extension of ten working days may be applied. Where this timescale is breached the Council will inform the complainant of the reason for delay and details of how to contact the Ombudsman.
26. At stage two the Council aims to provide a response within twenty working days. If this timescale is breached, the Council will provide details of how to contact the Ombudsman.

What happened

27. The following is a summary of key events. It is not intended to be a detailed chronology.

Exclusion, section 19 duty and section 42 duty

28. Prior to April 2024, Y had an EHC Plan which named a specialist provision and set out the special educational provision Y should receive.
29. From March 2023 Y only attended his named setting for 30 minutes per day.
30. At the end of April 2024, Y was permanently excluded from the specialist provision named in his EHC Plan.
31. The Council was informed of Y’s exclusion by Mrs X on the same day.
32. The school informed the Council of Y’s exclusion within three days.
33. On the same day the school informed the Council of Y’s permanent exclusion, the Council called Mrs X to discuss tutoring options for Y. During this call it was agreed the Council would refer Y to its alternative provision team. The Council also confirmed it would explore alternative placement options as part of the annual review process in November.
34. The evidence provided by the Council shows it provided a minimum level of weekly online tuition for Y between May 2024 and November 2024. The Council has not provided any evidence of how it considered this level of provision was suitable for Y. The evidence shows that although the alternative provision provided was minimal, Y struggled to engage, and he did not receive any quality educational input during this time.
35. The Council has failed to provide evidence it took steps to consider its section 42 duty once it became aware Y was not attending his named setting.
36. In August 2024 the Council explored the option of a new placement for Y. Consultations were sent to several specialist settings however the Council was unable to secure a suitable provision. Due to negative consultation responses the Council made the decision to continue with the tuition offer which had been in place since May. The Council has not provided any evidence of how it considered this tuition met its section 42 duty to provide the special educational provision detailed in Y’s EHC Plan.
37. By November 2024 Y was not receiving any tuition due to the provider being unable to offer afternoon sessions to fit with the family’s timetable. An annual review was held, and the agreement was made to complete a reassessment of Y’s needs.
38. In December 2024 the Council agreed to fund an education package for Y. Due to Y’s difficulty in engaging and safeguarding concerns, it was determined Y should access online learning and mentoring. Council records show it was open to increase this provision once Y began engaging.
39. From January 2025, Y began accessing 3 hours of online learning per day. This offer was in place until May 2025 when it ended without explanation.
40. Y did not receive any alternative provision between May 2025 and January 2026.

Annual review and reassessment

41. An annual review took place in November 2024. In accordance with statutory guidance the Council should have completed the annual review and issued a final Plan no later than 11 February 2025. The Council did not complete the annual review process.
42. During the annual review it was agreed that a reassessment of Y’s needs was required to ensure his Plan was reflective of his current needs. In accordance with statutory guidance the Council should have completed the reassessment and issued an amended Plan no later than 25 February 2025.
43. The Council did not issue an amended final Plan until the second week of February 2026. This is a delay of approximately twelve months.

Child in Need

44. An initial child protection conference was convened in the first week of January 2025. It was agreed Y and his sibling required a child in need plan due to ongoing safeguarding concerns.
45. The Council completed CIN meetings in January, February and March 2025.
46. At the end of March 2025, Council records show it had a conversation with Mrs X to discuss closing the Child in Need case due to there being no ongoing safeguarding issues about parenting. The Council considered and outstanding issues were being addressed by services better placed to offer support. The Council therefore did not consider it proportionate to keep the case open. Council records show Mrs X consented to the case being closed.

Complaint handling

47. Mr X complained to the Council at the end of November 2024. Mr X’s complaint raised concerns about Y’s exclusion, annual review, reassessment timeframe and lack of educational provision. The Council has not provided any evidence it responded to this complaint.
48. Mr X submitted a further complaint in June 2025. This complaint raised concerns that Y had been without education since May 2025 and his access to suitable education had been inconsistent since April 2024.
49. The Council contacted Mr X twice between June and July 2025 to apologise for the delay in providing a complaint response. In its second email, the Council provided Mr X with details of how to contact the Ombudsman.
50. The Council issued its stage one complaint response in September 2025. This is a delay of approximately 55 days.
51. Mr X escalated his complaint to stage two towards the end of September.
52. The Council issued a stage two complaint response one month later. The Council upheld Mr X’s complaint and apologised.

My findings

53. The Council completed a referral to its alternative provision team once it was aware that Y has been permanently excluded from school. The Council provided minimal provision and has failed to provide evidence of how it determined this met its section 19 duty to provide Y with access to suitable, full-time education. Based on the evidence available and Y’s engagement with education prior to his exclusion, I cannot say, even on the balance of probabilities, whether the level of education offered between May and November 2024 was suitable. This is fault which causes Y and Mr X distress, frustration and uncertainty.
54. The Council failed to consider its section 42 duty to ensure Y had access to the provision detailed in his EHC Plan between May 2024 and December 2024. This is fault which meant Y missed out on the special educational provision detailed in his EHC Plan for approximately two school terms, between May 2024 and December 2024.
55. There is no evidence of fault in the Council consideration of the education offered to Y in December 2024. The evidence shows the offer was made following consideration of the available information and was determined suitable for Y’s current ability to engage in education.
56. The Council failed to provide Y with access to suitable, full time education between May 2025 and January 2026 when the alternative provision was withdrawn. This is fault which meant Y missed out on access to suitable education for approximately two and a half school terms.
57. The Council failed to complete the November 2024 annual review. Although on balance, I do not consider this fault caused any additional loss of education for Y, it did mean Mr X had no appeal rights for over a year. This caused Mr X distress, frustration and uncertainty.
58. The Council failed to complete Y’s reassessment within the statutory timeframe. The twelve month delay caused distress, frustration and uncertainty for Y and Mr X.
59. There is no evidence of fault in the Council’s consideration of closing the Child in Need case. It considered the family’s needs, ongoing support and the progress being made and decided it was not proportionate to keep the case open.
60. The Council failed to provide a stage one complaint response within its published timeframe. Although the Council contacted Mr X twice to explain the delay between June and July, there was no additional update from the Council between July and September. This is fault which caused Mr X distress, frustration and uncertainty.
61. In May 2026 we asked the Council to provide us with an update on its SEND action plan and the steps it has taken to improve timeliness in progressing EHC Plans. For this reason, I have not made any further service improvements in this area.
62. In June 2026 we asked the Council to create an action plan which sets out how it will avoid fault when making section 19 decisions. For this reason, I have not recommended any further service improvements in this area.

Back to top

Action

63. Within one month of the final decision the Council will:
• Apologise to Mr X for the injustice caused by the faults identified.
• Make a symbolic payment of £5,850 to Mr X in recognition of the missed education which resulted from the faults identified. This is calculated at £1,300 per missed term of education. This is in line with our Guidance on Remedies and considers the individual circumstances of this case.
• Make an additional payment of £300 in recognition of the distress, frustration and uncertainty caused by the faults identified.
• We publish the Complaint Handling Code which sets out best practice in how councils should deal with complaints. In this case, we found the Council at fault for a significant delay in providing a stage one complaint response. In order to prevent similar faults from happening in future, the Council will consider our guidance and tell us what action(s) it will take to minimise delays in its complaints handling process.
64. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman