Summary: Miss X complained that the Council failed to deliver suitable education or special educational needs support to her daughter while she was out of school. We have found that the Council was at fault. Although it provided adequate alternative education, it failed to find a school which could deliver her special educational needs support. This meant she did not receive some of that support for over a year, which likely affected her education and caused her distress. The Council has agreed to make symbolic payments to
Miss X and her daughter to recognise their injustice. It will also take steps to improve its service.

The complaint

1. Miss X complains that:
• Her daughter, Y, has been unable to attend school since October 2023, and was given no school place for years 10 and 11.
• Although Y has received tutoring, it has been inadequate. She initially received only 10 hours a week, which was increased to 15 in September 2024, before being reduced to 10 again.
• Y has also received no support for her autism.
2. Miss X says Y has become socially isolated. She also says that she herself has suffered distress, as she has had to become Y’s carer and teacher and can no longer 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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. 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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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law and guidance.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

9. 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.
10. The EHC plan is set out in sections which include section F (the special educational provision needed by the child or the young person).
11. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. (Children and Families Act 2014, section 42)
12. Councils must arrange suitable education for children 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 ‘alternative provision’.
13. Alternative provision must be full-time unless the council decides this would not be in the child’s best interests for reasons of their physical or mental health. (Education Act 1996, sections 3A and 3AA)
14. The law does not define full-time education, but alternative provision should be equivalent to the education a child would receive in school. If they receive one-to-one tuition, for example, fewer hours may be needed as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

15. In 2023, Y’s school decided to educate her away from the school site. It said this was because of her behaviour, which, in its view, met the threshold for her to be permanently excluded. Instead of permanently excluding her, it tried to arrange a managed move to another school, which failed.
16. Following this, in September 2023, the school put 10 hours of weekly tuition in place for Y. It said it planned to do this until it could find proper alternative provision for her.
17. In November, Miss X applied for Y to have an EHC plan. The Council agreed to assess Y’s needs.
18. In December, Y started an alternative provision placement. But she only attended twice. Miss X said the placement was unsuitable.
19. The school ended the placement in January 2024. Miss X asked it to provide tuition instead. It did so: 10 hours a week (as before).
20. In March, the Council and Y’s school held a ‘pre-court conference’ to discuss Y’s poor attendance at her alternative provision placement. Miss X repeated her view that the placement had been unsuitable, but said the tuition was going “very well”.
21. Miss X asked for more tuition. The school said it believed 10 hours was enough, because the ratio was one-to-one.
22. Y continued to attend her tuition until May, when Miss X told the Council that she did not like it anymore because the library was “over stimulating”. She asked for Y to receive home tuition instead.
23. Shortly after, the Council issued an EHC plan for Y. Much of the provision was designed to be delivered in a school setting. But the plan also said Y should receive cognitive behavioural therapy (CBT) “on an individual basis by a trained professional in a quiet and confidential space … Once a week for at least an hour, for at least six to twelve weeks”.
24. The Council also decided Y should attend a special school; however, it did not name a school.
25. The Council informed Miss X of her right to appeal the provision in the plan to the First-tier Tribunal (Special Educational Needs and Disability). She did not do so. She says this was because she expected the Council to find a school quickly and, by the time she realised that there was going to be a long delay, her right of appeal (which lasted two months) had expired.
26. Despite not being named in Y’s EHC plan, Y’s (now former) school continued making 10 hours of tuition available to her. But shortly after the date of the plan, it told the Council that Y had stopped attending the tuition completely. It said it had “exhausted [its] resources in providing every type of tutoring available”. It asked the Council for support.
27. The Council took Y off the school’s roll and took over responsibility for the alternative provision.
28. Miss X told the Council that Y did not want to go to a library or a café for tutoring, “as these are noisy smelly places [which have] been offered to a child with autism”. She also said that Y did not want to do tuition at all, as she was “fed up” with it and wanted to go back to school.
29. The Council told her it had not been able to find a school for Y, and, in the meantime, it had a duty to deliver education. It said it would increase Y’s tuition to 15 hours a week the following term.
30. In September, Y began tuition again – this time at the tuition service’s office, for 15 hours a week. However, only a short time later, Y started refusing to go again. Miss X said:

Tutoring is not good in the long run for [Y] because this doesn't fix the isolation and social elements of an education that's missing it also doesn't cover other lessons like p.e and science and any other subjects.

 

31. Y did start attending the tuition again, although this was reduced to 10 hours. Miss X said Y “struggled to maintain motivation and engage” with the tuition. This was supported by the tuition service, which told the Council that Y:

… has faced several challenges with consistent attendance due to personal and health-related issues. Despite these obstacles, there have been moments of significant engagement and academic progress during her tutoring sessions.

32. Miss X has confirmed that the Council began delivering the CBT in Y’s EHC plan in 2025, and has, up to this point, received six sessions.
33. Miss X reports that Y has a sixth form placement lined up for September 2025. In the meantime, 10 weekly hours of tuition remain available to her.

My findings

Education October 2023 – May 2024

34. The decision to educate Y off-site prior to May 2024 was an internal management decision made by the school itself (because of Y’s behaviour while she was in school).
35. As this was an internal school matter, the quality of that off-site education (which took the form of tuition and, briefly, an alternative provision placement) is outside our jurisdiction. I cannot comment on it further.

Education from May 2024 onwards

36. From the date the Council issued Y’s EHC plan in May 2024 without naming a school, it was under the duty to make alternative arrangements to deliver both her education and her special educational needs provision.
37. The education the Council offered (and continues to offer) is 10 hours of one-to-one tuition a week. This is substantially less than full-time. However, the government’s view is that one-to-one tuition is more intensive, so fewer hours may be needed.
38. The evidence I have seen suggests Y struggled to attend all her 10 hours of tuition, even when the Council changed the venue to accommodate her preferences. When the provision was increased to 15 hours, she stopped attending completely, and it was reduced to 10 hours again.
39. With this in mind, the Council was not at fault for its offer of alternative provision. I appreciate that Y would rather be at school; however, it is for the Council to decide how alternative provision should look. In the absence of any evidence of fault, I cannot question the Council’s decision that 10 hours of tuition was (and remains) suitable for Y’s needs.

Special educational provision

40. Although the Council has not provided a school for Y for over a year, it has still had (and has) a duty to deliver the special educational provision in her EHC plan.
41. Y’s CBT has now been provided. But it took the Council almost a year to do this, for which it was at fault.
42. This likely caused Y distress (as she needed the support in May 2024, when the Council issued her EHC plan, but did not get it). Below, I have made a recommendation to address this.
43. The rest of Y’s support is mainly designed to be delivered in school. As the Council has failed to find a school, it has not been able to deliver the support.
44. This inability to find a school has not been because of any lack of effort on the Council’s part. It consulted several providers from May 2024 onwards, and was repeatedly told by those providers that they could not offer Y a place.
45. However, ‘service failure’ can still happen when a council fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed procedure or bad faith by a council to say service failure has occurred.
46. In Y’s case, she needed a school so she could receive all her special educational needs support (as set out in her EHC plan). It was the Council’s duty to provide that support. And, despite its efforts, it did not do so. Although this was not entirely within its control, this remains a service failure, for which it was at fault.
47. It is difficult to measure the full extent of Y’s injustice from the long delay to the Council’s search for a school – particularly as this was partly mitigated by its delivery of tuition. But I am satisfied that she likely experienced at least some loss of special educational needs provision, and some distress. I have made recommendations to address this injustice, below.
48. I am also satisfied that this delay likely caused Miss X distress. She has felt it necessary to provide education to Y at home, and has also gone to the time and trouble of pursuing this matter with the Council over a long period (both informally and through the Council’s complaints procedure). I have made a further recommendation to address her injustice, which now follows.

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Action

49. Within four weeks, the Council has agreed to:
• Write to Miss X, apologising for the significant delay in arranging Y’s CBT and finding her a school place. We publish guidance which sets out what we expect an effective apology to look like. The Council will consider this guidance when writing to Miss X.
• Make a symbolic payment of £1,000 to Miss X, on behalf of Y, to recognise that its delay finding a school for Y likely meant she experienced some loss of special educational provision, and some distress, for over a year.
• Make a further symbolic payment of £250 to Miss X, on behalf of Y, to recognise that its delay providing Y with CBT likely caused her distress.
• Make a symbolic payment of £500 to Miss X to recognise that the Council’s delays also likely caused her distress in her own right.
50. Within eight weeks, the Council has agreed to make relevant staff sufficiently aware of its duty to deliver the provision in a child’s EHC plan, even when the child is not in school.
51. Within twelve weeks, the Council has agreed to write to us, setting out a plan of action to ensure – in future – it overcomes similar problems to those it has faced finding a school for Y.
52. The Council will provide us with evidence it has done these things.

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Decision

53. The Council was at fault. This caused injustice to Miss X and Y, which it will now take action to address.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman