Summary: Miss X complained the Council failed to make educations provision after her son, Z, was permanently excluded from school and has still not found a school place for him. The Council failed to provide education in the statutory timescale after the exclusion and failed to meet the section 42 duty to meet his special educational needs. This has caused distress to the whole family and affected Z’s education. A financial remedy for the lost educational provision is agreed.

The complaint

1. Miss X complains the Council failed to make educational provision after her son was permanently excluded from school and has still not found a school place for him.
2. Miss X says this has caused stress for the whole family, she has had to take time off work and her son has missed out on education and mixing with peers.

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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. 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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How I considered this complaint

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

Exclusion 

7. In cases where a child is permanently excluded from a school, the law says that provision must be arranged for the child from the sixth day after the exclusion. This is set out in The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870), and accompanying statutory guidance.

General section 19 duty

8. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
9. 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)

Maintaining the EHC Plan

10. 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)  
11. 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 their legal duty. At a minimum we expect them 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. 

Service failure  

12. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. 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. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

Key facts

13. This section sets out the key events in this case and is not intended to be a detailed chronology.
14. Miss X’s son, Z, was permanently excluded from school on 13 December 2024. The school notified the Council on that date. The Council was required to provide alternative education within 6 days. The Council made no offer of alternative education provision by 19 December.
15. At the end of January 2025, when no offer of alternative education had been made and after Miss X raised concerns, the Council identified this failing and escalated the case to a service manager.
16. On 5 February 2025, the Council emailed Miss X saying that it could currently offer four hours of online one to one tutoring for literacy and numeracy and potentially science. As well as 2.5 hours for fitness and personal development. In an email the following day, after Miss X had queried what was going on, the Council responded saying there had been miscommunication about which service within the Council should have provided the interim education. It said it would respond as part of the formal complaint. It then asked Miss X for her views on the offered provision, saying this was a starting point and it could be increased if needed.
17. Miss X explained that she wanted to discuss the situation with the case officer before responding to the offer. The Council asked Miss X to respond saying that if online learning was not appropriate it could provide tuition in the home or a community setting. On 24 February, Miss X said that she had not heard from the case officer for weeks even though she had made multiple attempts to contact her. Miss X said she was not accepting the offer and that a crisis panel meeting should have taken place regarding a school placement.
18. The Council continued to consult schools to try to find a place for Z. While it has consulted around 10 institutions, to date it has not identified a placement for Z. The Council has the ability to instruct a school to take Z but has decided not to use this power and so Z remains out of school.
19. Miss X submitted a formal complaint to the Council on 30 January 2025. The Council responded on 5 March upholding some elements of the complaint. It apologised for the delay in securing a placement for Z and its failure to secure appropriate education within six days of the permanent exclusion. It then referred Ms X to the Ombudsman.

Analysis

20. Following a permanent exclusion, a council has a statutory duty to arrange educational provision from the sixth day after the exclusion. The Council failed to do this which is fault. Due to miscommunication between different teams within the Council, no education provision was offered until 5 February meaning Z missed out on approximately one month’s education.
21. The law says the Council must provide full time suitable education but full time is not defined but would commonly be considered to be equivalent to 22 to 25 hours a week. A council can take the view that one to one provision is worth more than provision delivered to a whole class or group.
22. The Council did make an offer of alternative education in February 2025. While this was initially limited to six and a half hours per week, it did state this could be reviewed and increased as appropriate. I am aware Miss X wanted Z to be placed in a school and so was reluctant to accept this limited offer. As Miss X declined the offer, it is not possible to take a view on whether it was suitable or whether Z could have managed more hours. The Council’s offer indicated flexibility in terms of how and where it was delivered and that the hours could be increased according to Z’s ability to cope. I am not persuaded the lack of education provision from 5 February onwards was as a result of fault by the Council.
23. Z has an EHC Plan and so the Council has a duty under section 42 of the Children and Families Act 2014 to make the provision specified in section F of the EHC Plan even when he was not attending school.
24. Z’s EHC Plan indicates some provision that would be difficult to provide away from a school setting but details some specific provision that should be deliverable even if Z is not placed at a school. This includes the following:
• An emotional literacy programme delivered three times a week by specially trained staff
• fine motor skills interaction two to three times a week for 10 to 15 minutes
• heavy muscle activities on a daily basis
• lego therapy once a week
• sensory circuits three to five times a week for 20 minutes per session
25. Based on the evidence provided, while the Council made an initial offer of some tuition, it has not evidenced how it considered this would meet the requirements of the EHC Plan. The offer made in February 2025 has not changed even though Miss X has said it does not meet Z’s educational needs. There is nothing to suggest the Council has reviewed its position since February or offered any of the specific provision named in section F of the EHC Plan. This is fault.
26. The Council has made efforts to find a school placement for Z. It has consulted with all the providers within an hour of Z’s home but no placement identified. Some have no capacity and others say they are unable to meet Z’s needs. I am satisfied the Council has limited the consultation area based on Miss X’s preference that Z does not travel more than an hour. I note the Council has re-consulted schools that stated they were at capacity but still a place is not available.
27. The failure to identify a placement for Z is service failure. Paragraph 12 above explains what we mean by service failure. While I am satisfied the Council has used its best efforts, it has been unable to secure a school placement for Z. This is fault.
28. I note the Council has now agreed to carry out a new assessment of Z’s special education needs. The outcome of this assessment will inform how his needs can be met and I would expect an amended EHC Plan to be issued as a result. Once a final EHC Plan is issued, if Miss X disagrees with the provision or institution named then she would have a right of appeal.

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Action

29. To remedy the injustice caused as a result of the fault identified above, the Council will, within one month of my final decision, take the following action;
• Apologise to Miss X and Z. 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.
• Make a payment of £500 to recognise the Council failed to offer alternative provision for a month after Z was excluded from school;
• Make a payment of £2,500 to recognise the Council’s failure to meet its section 42 duty for the period from February to October 2025. In recommending this amount I have taken account of the Ombudsman’s Guidance on Remedies manual which recommends a payment of between £900 and £2,400 per term for lost educational provision and that the Council has offered some provision which was declined;
• Continue to update Miss X every fortnight; and
• Ensure the reassessment of Z’s needs is completed without further delay and within the 14 week timescale from the date it agreed to carry out a re-assessment.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman