Summary: Mr X complained the Council failed to secure any educational provision for his son Y, who has an Education, Health and Care Plan, when he stopped being able to attend school. We find the Council at fault for failing to secure Y’s special educational provision, and failing to consider its duties and relevant guidance when deciding whether to arrange alternative educational provision. This caused significant injustice in the form of lost special educational provision and distress. The Council has agreed to make a symbolic payment, apologise, and make service improvements to remedy the injustice.

The complaint

1. Mr X complains the Council failed to secure any educational provision for his son Y, who has special educational needs and an Education, Health and Care Plan (EHC Plan), when he stopped being able to attend his special school.
2. He says the Council’s failings meant Y was deprived of the education and support he was entitled to which has caused lasting distress, anxiety and a deterioration of his behaviour and mental and physical health. He also says it has harmed his family’s stability and had a significant lasting toll on him personally.
3. He would like the Council to recognise its failings and the impact on Y and his family, apologise, offer compensatory education and therapy, and review their procedures to prevent similar failure for other vulnerable children.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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). 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.
9. 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.
10. 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)

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What I have and have not investigated

11. I have investigated from 19 September 2024 to 12 September 2025. Y’s school requested alternative educational provision from the Council at the start of the period. The Council issued Y an EHC Plan at the end of the period.
12. Mr X complained to us in October 2025. That means the matters in September 2024 happened more than 12 months before he complained. They are therefore late. Mr X regularly raised concerns about Y’s education and did not let the matter drop for any significant period. I have decided this is a good reason to exercise my discretion to investigate the late matters from September 2024. I have decided there is not a good reason to investigate late matters before that date.
13. The Council issued an EHC Plan on 26 March 2025. The Council told Mr X that it had to name a particular school in the EHC Plan whilst it did more work to secure educational provision other than at the school. It said it could amend the EHC Plan once the educational provision was secured. I have decided this meant Mr X had a reasonable expectation the Council would secure educational provision for Y in a timely manner. For this reason I have decided it is not reasonable to expect Mr X to have appealed to the Tribunal at that point. I have therefore investigated beyond that date in line with paragraphs 7 and 8.
14. I have ended my investigation when the Council issued an EHC Plan for Y in September 2025. This is because I have decided it was reasonable for Mr X to have appealed to the Tribunal about matters linked to the education and support Y was receiving at that point. Therefore I cannot investigate in line with paragraphs 7 and 8.

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How I considered this complaint

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

EHC Plans

18. 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. 
19. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

Duty to secure the special educational provision set out in Section F

20. 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)

Appeal rights

21. There is a right of appeal to the Tribunal against matters including the special educational provision specified, the school or placement named, or that no school or other placement is specified, in an EHC Plan.
22. 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.
23. 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.

Section 19 duty to arrange alternative educational provision

24. 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.
25. There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. The 15 days may be consecutive or over the course of a school year. (Arranging education for children who cannot attend school because of health needs, December 2023, guidance issued by the Department for Education)
26. 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)
27. 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, 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.

What happened

28. This is a summary of key events. It is not a detailed chronology of everything that happened.
29. Y has special educational needs and associated medical needs. He has had an EHC Plan for several years. He attended a special school named in Section I of his EHC Plan. I shall refer to this as School A.
30. He started school year 11 in September 2024.
31. On 19 September School A submitted a referral form to the Council’s Medical Needs and Hospital Education Service (MNHES). MNHES is a service run by the Council. It provides education for pupils unable to attend their school due to ongoing medical issues. The referral was a request for medical needs education under section 19.
32. In the referral form School A explained Y could no longer attend school for medical reasons. It provided detailed information about the circumstances and previous attempts to maintain Y’s attendance at school.
33. MNHES decided not to accept the referral. Its reasons were that a number of professional agencies already supported Y, and the timeframe of support did not fit within its remit.
34. In December a Council officer in its SEND team was routinely checking records and saw Y had stopped attending school. The officer asked School A what educational provision was in place for Y.
35. School A confirmed Y was not receiving any educational provision at that time. It explained it did not have the capacity to deliver home tuition.
36. The Council officer started engaging with School A, Mr X, MNHES and other professionals working with Y. The Council and other professionals explored different possible options to provide Y with some education.
37. In February 2025 the Council reviewed Y’s EHC Plan. It consulted various post 16 placements that Y might be able to attend from September.
38. In early March MNHES reiterated it would not provide education for Y. MNHES did provide welfare support for Y.
39. In March the Council issued an EHC Plan. It continued to name School A in Section I. Mr X had raised concerns about its decision to name School A. The Council told Mr X that it had to name a particular school in the EHC Plan whilst it did more work to secure educational provision other than at the school. It said it could amend the EHC Plan once the educational provision was secured.
40. On 3 April the Council’s SEND Resource Panel (the Panel) considered whether to provide Y a personal budget for home tuition. This was its first meeting about Y in the period I investigated.
41. Records of the Panel meeting show it was aware Y had not attended school for about nine months since June 2024. The Panel declined the provide a personal budget for tuition. It recommended Council officers continue to consult other placements that Y may be able to attend from September.
42. Council officers continued to engage with School A, Mr X, MNHES and other professionals. During May Mr X continued to raise concerns about the lack of progress in providing education for Y. School A and MNHES both reiterated they could not offer home tuition.
43. In mid-May the Council held a meeting about Y. It noted he was not being provided any education. It decided to refer the matter back to the Panel.
44. On 23 May 2025 MR X formally complained to the Council. He complained it had not provided any education for Y.
45. On 19 June the Panel considered whether to remove funding from School A to use it to fund home tuition for Y. This was its second meeting about Y.
46. Records of the meeting show it was aware Y was still not attending school. It decided to defer making a decision until a social care assessment and discussion about Y’s post 16 placement had taken place.
47. MNHES provided a response to the Panel’s decision to defer making a decision. It asked that it reconsider providing home tuition.
48. On 11 July the Council provided Mr X its stage one complaint response. It summarised the actions it had taken. It concluded the outcome of Mr X’s complaint was inconclusive. It said it would do a social care assessment and take the matter back to the Panel.
49. On 15 July Mr X escalated his complaint to stage 2. He complained about the Council’s failure to provide education for Y and repeated referrals to the Panel with no change in circumstances.
50. On 24 July the Panel considered whether to approve funding for home tuition. This was its third meeting about Y.
51. The Panel decided to agree funding for home tuition because Y was deemed unable to access education at a placement. It approved 6 hours of tuition per week. A social care assessment had not taken place.
52. On 11 September the Panel considered a quote for the home tuition it had approved on 24 July. This was its fourth meeting about Y.
53. The Panel decided to defer the decision. This was because the papers presented to the Panel did not have a cover sheet.
54. Also on 11 September the Council provided its stage 2 complaint response. It upheld Mr X’s complaint it had failed to provide educational provision for Y.
55. On 12 September Council officers decided to approve funding for home tuition outside of the Panel approval process. The records show the decision was made to ensure Y had education going forwards.
56. Also on 12 September the Council issued an amended Final EHC Plan. Section F detailed a package of education at home. Section I therefore did not name a placement.

Analysis and findings

57. I address the Council’s actions regarding its duty to secure the special educational provision in Section F of Y’s EHC Plans, and its section 19 duty to arrange alternative educational provision, below.

Duty to secure the special educational provision in Section F

58. I have considered the special educational provision detailed in Section F of Y’s two EHC Plans that were in force during the period I investigated.
59. The special educational provision was full-time classroom-based education. It had to be monitored by a school Special Educational Needs Coordinator. I have decided the special educational provision could only have been delivered in a special school setting.
60. I find Y did not receive any of the special educational provision for the whole period I investigated. This is because he did not attend school for medical reasons. The period was one school year from September 2024 to September 2025.
61. As explained in paragraph 20, the Council had a non-delegable duty to secure Y’s special educational provision. I have considered whether the Council complied with that duty.
62. We recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan all the time. For example, the council may secure provision which subsequently stops without it being informed. The Ombudsman does consider that councils should be able to demonstrate due diligence and as a minimum have systems in place to:

• investigate complaints or concerns that provision is not in place at any time;
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in placement; and
• check the provision at least annually via the review process.

63. In this case, I have decided the Council was first notified of a concern Y’s special educational provision may not have been in place on 19 September 2024. This was when School A submitted the referral to MNHES.
64. I find the Council should have had a system in place to promptly investigate whether Y’s special educational provision was in place given the information in the referral. It failed to do so. This was fault.
65. In this case I have decided to make a finding, on the balance of probabilities, what the Council would have decided had it promptly investigated whether Y’s special educational provision was in place.
66. I acknowledge School A said in the referral it was hopeful Y would be able to return to full time education within 6-12 weeks. It said the period may be longer. It provided detailed information about the reasons Y could not attend school, and the things that needed to be in place to allow him to reintegrate.
67. However, it was clear Y was not attending School A, or receiving any other educational provision at that point. For this reason I find, on balance, the Council would have decided it was not securing Y’s special educational provision from September 2024 had it properly investigated the concerns in School A’s referral to MNHES.
68. I have decided the Council missed several other opportunities to check Y’s special educational was in place. These were:

• The annual review in February 2025.
• When it issued Y’s EHC Plan in March 2025.
• The meeting in mid-May.
• The two formal complaints raised by Mr X.
• The four Panel meetings.

69. I find the Council failed to have appropriate systems to check and record whether it was fulfilling its duty to secure Y’s special educational provision at each of those points. These were separate instances of fault.
70. I am particularly concerned by the records of the four Panel meetings. The evidence shows less senior Council officers repeatedly referred matters to the Panel to attempt to secure some educational provision for Y. However, I find the Panel records show it failed to adequately consider the Council’s duties to secure Y’s special educational provision in Section F of his EHC Plan at any meeting. I am particularly concerned about this because of the Panel’s pivotal role in authorising actions that may have prevented or mitigated the effects of the fault.
71. For these reasons I find the Council at fault for not securing Y’s special educational provision from September 2024 to September 2025. The fault caused significant injustice of distress in the form of frustration and uncertainty, and a total loss of Y’s special educational provision for one school year.
72. I have considered our Guidance on Remedies. It is relevant the Council did not mitigate the injustice by providing any alternative educational provision in that period. The injustice was aggravated because the period was immediately before Y’s transfer to post 16 education. This means an important period in his educational development was negatively impacted.
73. I have decided to recommend the Council apologises and makes a total symbolic payment of £5,700 to remedy the injustice.
74. This is £1,900 per term for three terms. It is intended to remedy the injustice of distress and lost special educational provision suffered by Y, as well as the consequential injustice also caused to Y’s family due to the fault.

Section 19 duty to arrange alternative educational provision

75. I find the Council should have acted in line with our good practice guidance, summarised in paragraphs 26 and 27, when School A first told it Y was unable to attend due to medical reasons. This was 19 September 2024 when it made the referral to MNHES and said Y had already been unable to attend for some time. The Council failed to do so. This was fault.
76. The Council did not formally decide whether or not to provide alternative educational provision until the first Panel meeting on 3 April, seven months from being notified Y was unable to attend school. I find the record of that meeting shows the Council did not adequately consider its section 19 duty and the relevant guidance. It primarily based its decision on a different piece of law that is only about special educational provision. I find the Council’s failure to adequately consider its section 19 duty and the relevant guidance was fault.
77. The Council next made a formal decision at the second Panel meeting on 19 June, nine months from being notified Y was unable to attend school. I find the record of that meeting shows the Council did not adequately consider its section 19 duty and the relevant guidance. This is because it decided to defer making a decision because it wanted a social care assessment, and to have further discussions about his potential educational placement from September. I do not find these were material matters to whether or not it owed a section 19 duty. I find the Council’s failure to adequately consider its section 19 duty was fault.
78. I acknowledge the Council may not have had a section 19 duty to Y on 19 June. This is because Y was due to be no longer of compulsory school age from 28 June. This is because he had turned 16 before that date. The section 19 duty does not apply when a child will not be of compulsory school age within six weeks, and does not have any relevant examinations to complete.
79. However, I have seen no evidence the Council knew whether Y had any relevant examinations. Nor did it make its decision with regard to that issue. For these reasons I have decided the compulsory school age factor does not change my finding of fault.
80. The Council next made a decision about whether to provide alternative educational provision at the third Panel meeting on 24 July. I have made no findings regarding that decision. This is because the Council no longer had a section 19 duty to Y because he had stopped being of compulsory school age.
81. However, I have decided it is relevant to note there is no evidence the Council identified its section 19 duty had ended by 24 July. I find this is evidence that supports my findings the Council failed to properly consider its section 19 duty throughout the period I investigated.
82. I have decided I cannot find, even on the balance of probabilities, what the Council would have decided had it made its decisions with adequate consideration of its section 19 duty and the relevant guidance. I therefore cannot say whether the Council’s faults caused missed alternative educational provision.
83. However, I find the faults caused significant injustice in the form of distress and uncertainty. I recommend the Council apologises for the injustice.
84. I have also decided to make service improvement recommendations regarding all the faults identified in this investigation. This is to prevent future injustice to others.

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Action

85. Within four weeks of the date of my final decision the Council will:
1. Make a symbolic payment of £5,700 to Mr X for the distress and loss of special educational provision. I recommend Mr X use the money to benefit Y’s education and wellbeing.
2. Apologise to Mr X and Y for the injustice caused.
86. Within twelve weeks of my final decision the Council will:
1. Produce an organisation led action plan. This will identify the issues that led to the faults following its notification Y was no longer able to attend school. Specifically, its failure to secure the special educational provision detailed in Section F of Y’s EHC Plans or mitigate the impact of that loss, and its failures to promptly and adequately make effective decisions about alternative educational provision with clear and adequate regard to its section 19 duty and the relevant guidance. The plan will describe the steps the Council has put in place to fix the issues.
87. the Council should provide us with evidence it has complied with the above actions.

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Decision

88. I find fault in the Council’s handling of Y’s education causing injustice of distress and a loss of special educational provision. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman