Summary: Miss X, representing her daughter Miss Y, complained the Council did not ensure that her grandchild (Z) had access to a full-time education after January 2023. We found fault by the Council as it delayed reviews of Z’s Education, Health and Care Plan and a reassessment of their needs. It also did not ensure Z had access to full-time education after June 2024, following their permanent exclusion from school. This led to some avoidable distress for Miss Y and a loss of education for Z. The Council accepted these findings and at the end of this statement we set out the action it agreed to take to remedy Miss Y and Z’s injustice.

The complaint

1. Miss X represented her daughter Miss Y, who has a child (‘Z’), with special educational needs. Miss X complained the Council failed to ensure Z had access to a full-time education after January 2023.
2. Miss X said because of their limited access to education, Z lacked structure in their life and this led to a worsening in their behaviour.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The Ombudsman’s view 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. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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)
6. 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)
7. The law also 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)
8. 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.
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 an information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted). This will be before any publication of the statement on our website.

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
12. I gave Miss X and the Council chance to comment on a draft version of my decision statement. I considered any comments they made and any further evidence they provided, before issuing this final version.

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What I found

Legal and Administrative Considerations

The law and guidance around special educational needs

13. 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 the arrangements made to meet them.
14. The EHC Plan has different sections. We cannot direct changes to the sections that set out a child’s needs, their education provision or the name of their educational placement (or type of 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). 
16. The council must arrange for a review of an EHC Plan at least once a year. 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 only completes when the council issues a 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 it must inform the child’s parents or the young person of their right to appeal that 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 with details of proposed amendments. This too should happen within four weeks of the review meeting. Councils must then issue the final amended EHC Plan within a further eight weeks. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). 
19. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if requested to do so by the child’s parent. It must tell the child’s parent if it agrees the request within 15 calendar days of receiving it. If it agrees, then the council has 14 weeks to issue the final EHC Plan from the date it agreed to reassess.
20. If, once following a review, or a reassessment, the Council has issued a final EHC Plan, then a parent has the right of appeal to the tribunal if they:

• disagree with how the Plan describes a child or young person’s special educational needs;
• disagree with any school or placement named in the Plan; or
• want the Plan to name a school or other placement, where it currently does not do so.

Alternative provision

21. 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.
22. The courts have considered the circumstances where the section 19 duty applies. Caselaw says a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
23. Government guidance (‘Working together to improve school attendance’) states all pupils of compulsory school age have an entitlement to a full-time education. In exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable forms part of a re-integration package. However, a part-time timetable is not suitable as a long-term solution. 
24. Schools should tell the local authority of any cases where a child has a part-time timetable. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review and increase provision if a child's capacity to learn increases.

The key facts

25. Z is a child with special educational needs. Throughout the events covered by this complaint Z had an EHC Plan. At the beginning of the events covered by this complaint Z attended a specialist school maintained by the Council. They were in Year 5 of their education.
26. Z lived with their mother, Miss Y. However, Miss X had a close involvement in Z’s life and supported Miss Y, with her consent, throughout the events covered by this complaint. For example, she would contact Z’s school or the Council on Miss Y’s behalf.
27. In June 2023 there was an annual review of Z’s EHC Plan. At the review meeting, Z’s school expressed concern at an increase in behaviours associated with Z’s special educational needs. The Council recorded the school’s view that it no longer considered it was “the most appropriate setting” for Z.
28. So, following the review the Council proposed amending Z’s EHC Plan. It sent a draft version with proposed amendments to Miss Y at the beginning of September 2023. It issued a final amended version of the Plan at the end of September 2023.
29. The Plan continued to name Z’s place of education as the maintained special school. But by then the Council had begun searching for alternative school placements for Z. It identified a specialist school around 30 miles, or a one-hour journey time, from Miss Y’s home address. But Miss X and Miss Y rejected this as they said it was unsuitable for Z because of the journey time.
30. At the beginning of October 2023, another review of Z’s EHC Plan took place after contact from their school. The school implied it continued to struggle to meet Z’s needs, because of changes in their behaviours associated with their special educational needs. In her comments provided before the review meeting, Miss X implied the school could meet Z’s needs, if it adopted different strategies in response to their behaviour. The Council recorded that it still considered the placement unsuitable and would find an alternative school for Z.
31. However, following the review the Council did not write to Miss Y to confirm the outcome. Nor did it issue an amended EHC Plan in a draft or final format, before Z’s next review in April 2024 (see below for details).
32. In between, the school had contacted the Council in November 2023 to say that Z was now on a part-time timetable. Initially, the Council understood Z would return to full-time education before February 2024. But this did not happen and the Council learnt the school had extended the arrangement. It recorded Z attended for two full school days and three half-days each week.
33. The Council also continued consultations with alternative schools. In November 2023 it identified another specialist school (‘School A’), which said it could offer Z a place. This was around 25 miles, or a 45-minute journey time, from Miss Y’s home address.
34. Miss X and Miss Y did not want Z to go to School A saying it was too far from Z’s home. They confirmed their position when the Council discussed the place again in February 2024. Miss X told me that Miss Y worried she would not have the ability to collect Z from School A if needed, given other childcare commitments.
35. That same month the Council also identified a specialist school in the town where Z lives (‘School B’). This too could offer Z a place. Miss X and Miss Y did not want Z to attend this school, saying it could not meet Z’s complex needs. Miss X and Miss Y explored Z attending another specialist school nearby, ‘School C’. The Council consulted this school also, but it said it could not meet Z’s needs.
36. In late April 2024, a further review of Z’s EHC Plan took place. At the review the Council agreed to consider a request made by Miss X that it should reassess Z’s needs. This was something she first raised in an email sent in mid-March 2024. At the time Miss X did not give reasons for the request. The Council received the record of the review meeting from Z’s school in mid-May, which explained her reasons. In between, Miss X had also sent two further emails to the Council, asking it to reassess Z’s needs.
37. The review meeting minutes recorded the school saying Z was now at high risk of exclusion. It recorded they remained on a part-time timetable attending school three mornings a week. The school said it wanted to arrange for Z to have alternative provision the other two days of the week. The review also noted Z had begun receiving some support from a behavioural specialist (Miss X told me a social worker arranged this not the Council’s education service).
38. At the review, the Council again asked Miss X and Miss Y to consider if Z could attend School A. The Council said while it was further from Z’s home, they would have a shorter journey time to and from school. The review minutes recorded Miss X saying they did not want Z to attend another school until a reassessment had completed. Miss X told me this was because she and Miss Y thought Z’s primary area of need had changed. So, Z might need a school with that specialism. However, I noted in an email Miss X sent at the beginning of May 2024, she suggested Z could attend another school, ‘School D’.
39. In early May 2024, Z’s school suggested they might attend an alternative provider (‘AP1’). Miss X said this would be unsuitable for Z, given their needs. The Council still arranged for Z to visit the provision, after which AP1 sent an email to the Council saying it too considered the provision unsuitable for Z. The Council also sent an anonymised referral to other alternative providers in the area to see if any might have provision for Z. It said those who responded were unsuitable to meet Z’s needs.
40. At the end of May 2024, the Council agreed to reassess Z’s needs.
41. In June 2024 the school permanently excluded Z. Miss X asked me to note this followed him receiving three fixed term exclusions over the previous 12 months. She says the Council should have done more in response to those exclusions to ensure Z had suitable education provision.
42. The Council said following Z’s exclusion its fair access team tried to contact Miss Y but could not do so. Its notes recorded at this point Z was on the roll of another alternative provider (‘AP2’). But during this investigation the Council clarified that AP2 did not have a vacancy for Z at that time. It checked if a different alternative provider could meet Z’s needs, but it assessed it could not.
43. In July 2024 the Council said that it once again invited other alternative providers to express an interest in making provision for Z, sending them an anonymised referral. But it again considered none were suitable to meet their needs. The Council ruled out making home tuition available after Miss X said the family wanted Z to attend an education setting.
44. Also, in July 2024, the Council sent Miss X and Miss Y a copy of a draft version of Z’s EHC Plan following its reassessment. Miss X did not receive her copy at first, so the Council re-sent it. Miss X asked for amendments to the Plan and the Council arranged to meet with her to discuss these in August 2024.
45. In August 2024, Miss X made a complaint to the Council. She complained the Council had not reviewed Z’s EHC Plan within the statutory timescale.
46. In its reply, sent at the end of August, the Council set out how it had reviewed Z’s Plan three times since June 2023. The Council apologised for its delay in completing actions following the review of Z’s Plan held in June 2023. It did not comment on whether it considered it was at fault for any mistakes following the later reviews.
47. In September 2024, the Council identified another alternative provider (‘AP3’) that could offer a place to Z. Miss X visited the provision with Z but said it was unsuitable for their needs. The Council wrote to Miss X saying it had consulted other alternative providers without success. The Council said it would look at supporting Z with more behavioural support.
48. Later that month, Miss X escalated her complaint to Stage 2 of the Council’s complaint procedure. She said the Council had still not issued a final version of Z’s Plan following its reassessment. She also wanted to discuss alternative provision for Z, as so far the Council had not identified any suitable setting. In the same month, Miss X also contacted us for the first time, to make us aware of her complaint.
49. The Council sent its final reply to Miss X’s complaint in October 2024. It said a complaint to the Council could not result in Z receiving alternative provision as this was a matter for its education service. It then went on to list attempts made by the education service to engage Z with alternative provision. It implied it would issue a final EHC Plan to Z shortly and this would say they needed a specialist school with a specific pupil profile. But the Plan would not name a specific school.
50. In October 2024, Z began attending AP2. The setting offers alternative provision for children in both the primary and secondary phases of their education. Despite now being of secondary school age (Year 7), Z joined the primary setting at Miss X’s request. AP2 said in March 2025 Z needed to leave that setting as they were now too old. I understand from Miss X that up to that point Z would attend for two and half hours a day, four days a week.
51. In November 2024 the Council issued a final amended Plan to Z. As it suggested in its reply to Miss X’s complaint, this did not name a school for Z, only the type of school the Council considered they needed.
52. In February 2025 the Council and Miss Y (with support from Miss X) entered mediation, although Miss Y made no appeal of the Plan issued in November 2024. A mediation agreement said the Council would make some changes to the time when Z would attend AP2, and it would communicate with Miss X more frequently. It would also re-consult School D and would continue to search for a new school for Z based on criteria including location and specialism.
53. Miss X contacted this office again and we accepted her complaint for investigation in April 2025. I did not investigate events after this date.

Findings

The scope of the investigation

54. There were two considerations that potentially limited the scope of this investigation. Miss X suggested that from January 2023, Z did not receive a full-time education. That placed the start of the events Miss X wanted us to investigate as more than 12 months before she first contacted us, which was in September 2024.
55. I used my discretion to investigate events from June 2023. I chose this date, because the evidence showed the Council knew then, that Z’s school struggled to meet their needs. It had regular contacts with Miss X and Miss Y after then. But I saw no evidence Council education officers knew of any similar struggles before that time or that Z’s school introduced a part-time timetable before then. Without evidence of the Council’s awareness, I considered there were no good reasons to extend my investigation further back in time.
56. The second consideration was that of the alternative remedy of appeal to the tribunal. I did not investigate the content of the EHC Plan issued to Z in November 2024. This was because Miss Y had the right of appeal to the Tribunal, if unhappy with that. For example, if she wanted the Plan to name a specific school (such as School D) rather than a type of school. I considered there were no good reasons for me to exercise discretion to investigate that matter.
57. However, that did not prevent me considering the education provision made for Z at that point, or at any other point between the dates under consideration (June 2023 to April 2025).
58. I noted Miss Y also had an earlier right of appeal to the Tribunal in September 2023, when the Council issued the previous version of Z’s EHC Plan. However, I considered it was not reasonable for me to have expected Miss Y to have appealed that version of the Plan. This was because a further review of the Plan followed almost immediately after its issue and Miss Y anticipated further changes to the Plan to follow. So, I considered there were good reasons justifying an investigation into the Council’s actions around that time.

Was the Council at fault?

59. I considered first the Council’s administration of Z’s EHC Plan. I found the Council at fault because:

• it did not issue an amended Plan to Z within 12 weeks of the review it held in June 2023. It took just over 16 weeks to do so; four weeks longer than the maximum time it should have taken;
• it failed to confirm its intentions following the emergency review held in October 2023. It did not write to Miss Y to say if it intended to maintain Z’s Plan without amendment, or to amend the Plan. It should have done one or the other;
• it took around six weeks longer than it should to respond to Miss X’s request for a reassessment of Z’s needs, which she initially made in March 2024;
• it took 12 weeks longer than it should to issue a revised final EHC Plan to Z after completing its reassessment. It should have issued this by the end of August 2024 but did not do so until the end of November 2024.

60. I consider these faults caused Miss Y injustice. Any delay in completing actions to review an EHC Plan, or reassess a child’s needs, creates uncertainty. This is because the parent will not know the Council’s intentions for educating their child moving forward, until those actions complete. In this case, the Council also added confusion by not confirming its intentions following the October 2023 review. I considered the combined uncertainty and confusion caused some avoidable distress for Miss Y. At the end of this statement, I set out the action agreed by the Council to remedy this injustice.
61. Next I considered the second, more complex part of this complaint. Which was whether the Council was also at fault for not ensuring Z had access to a full-time education between June 2023 and April 2025. As I explained above, where a child has an EHC Plan, the Council has a duty to ensure it makes the education provision set out in their plan available and accessible.
62. In considering the period before June 2024, I noted the Council became aware Z was on a part-time timetable from around November 2023. They remained on that part-time timetable until their exclusion. This was clearly undesirable as Government guidance suggests the use of such timetables should be short-term.
63. So, the Council should have intervened from March 2024, when it became clear Z’s attendance was becoming less not more. Already at that time the Council had committed to looking for an alternative placement for Z and clearly they consulted multiple settings from Autumn 2023 onward. But until it could identify a suitable placement it still needed to ensure Z had education accessible and available to them. Not until May 2024, did it actively consider locating some alternative provision for Z. It consulted AP1 but that provider could not meet Z’s needs.
64. I noted in addition, the Council carried out anonymised consultations with other alternative provision providers (and did so again after Z’s exclusion). But this search did not result in a suitable provider coming forward. The facts here suggested a service failure by the Council, because it could not identify a suitable alternative provider for Z despite its efforts.
65. I found therefore that Z did not have full-time education available and accessible to them between March and May 2024, after it became clear they could not access the full-time provision from the school. But for the fault identified I considered Z would have had greater access to education, and so I also found they had suffered some loss of provision. This was their injustice.
66. After June 2024, Z’s circumstances worsened. Now they did not have any school place they could access, even on a part-time basis. So, the Council had to try to ensure they had access to full-time education another way from the sixth day following their exclusion. The Council failed to identify such provision. It was not until mid-October 2024 that a place became available at AP2 which Z could access. This delay in making provision for Z was a fault. They had no education provision at all during this period and this was a further injustice to them.
67. The Council suggested its choices became limited because of both the shortage of suitable providers and because Miss X would not support home tuition for Z. On this latter point, I considered if the Council thought Z’s case suitable for home tuition it should have spelt this out clearly to Miss Y and Miss X. It could also have suggested providing tuition other than in the home, in a community setting. While I allowed that Miss X’s stance complicated the Council’s search, I did not consider it provided mitigation for the injustice caused to Z.
68. I also had concern the alternative provision the Council made available for Z, from October 2024 onward, was not full-time or equivalent. The Council provided no evidence showing that it considered if Z’s needs meant they could not cope with full-time education. This was a further fault.
69. During the investigation the Council suggested this was the case. It pointed out that even when attending a specialist school Z struggled to meet its demands. I agreed I had to give some weight to that. But without the Council showing consideration at the time, I considered there was no reason to think Z could not have taken advantage of something closer to a full-time education, if offered to them. On balance therefore, I considered Z likely experienced some continued loss of provision, although I did not consider it likely they would have accessed full-time provision.
70. I also noted September 2024 marked the beginning of Z’s Year 7, a critical time for a child’s education.
71. Next, I noted the Council had consistently sought to engage Miss X and Miss Y in agreeing for Z to attend Schools A or B. The evidence suggested both schools believed they could meet Z’s needs and both said they catered for a pupil profile that appeared to match Z’s needs. I considered if Miss X and Miss Y’s wish not to pursue these placements had also contributed to Z not having greater access to education.
72. However, at no point did the Council name either of these schools on Z’s EHC Plan. It said that was because neither school was an ‘approved school’ (as defined under Section 41 of the Education Act). So, it could only name either school if they made a ‘formal offer’ of a place to Z. While accepting this was so, this did not mean I could find Z had therefore had education available to them at either institution.
73. The considerations set out in paragraphs 69 to 72 were all relevant when I had to consider what action the Council should take to remedy Z’s injustice for lost provision.
74. My investigation next considered the Council’s complaint responses. I thought its stage one response poor, as it offered no comment on whether the Council considered itself at fault in its actions following the October 2023 and April 2024 reviews. The Council should have ensured its first complaint response addressed all parts of Miss X’s complaint
75. Its stage two response also gave me cause for concern. It gave the impression that a complaint would not lead it to take action in any circumstances where a parent complained about an alleged failure by its education service to secure alternative provision. It should not have done this. Because a complaint should lead to action by the education service if for example an investigation finds it has delayed in responding to a request for alternative provision. Or that it is not making such provision when it should.
76. That said, I did not find the complaint responses so poor that I could find fault. Nor that any fault here could have resulted in any further injustice for Miss X, Miss Y or Z. But I asked the Council to note my concerns.
77. Finally, I considered if there were any wider lessons the Council could learn from this complaint. It highlighted some potential systemic weakness. In particular, in how the Council recorded offers of alternative provision and what that comprised of, given the starting presumption that such provision should be full-time or equivalent. However, I noted over the past 12 months we had several times drawn attention to the need for the Council to improve its processes in this area, which it had agreed to. It therefore served no purpose for me to make any further service improvement recommendations in this case, as I needed to allow time for the Council to complete those it had already agreed to.

Agreed Action

78. The Council accepted the findings set out above. To remedy the injustice identified in paragraphs 60 and 72 it agreed that within 20 working days of this decision it would:
1. provide an apology to Miss X (for Miss Y’s benefit also) accepting the findings of this investigation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council would consider this guidance in making its apology;
2. make a symbolic payment of £250 to Miss Y in recognition of the distress caused to her, as Z’s parent, from the delays identified in the reviews and reassessment of Z’s EHC Plan;
3. make a further symbolic payment also to Miss Y of £4000 in recognition of Z’s loss of education provision. This would comprise a payment of £500 to cover the period March to May 2024; £2000 for the period between June and mid-October 2024 and £1500 for the remaining period up to April 2025.
79. I considered this sum appropriate after considering advice also contained in our published guidance on remedies. This suggests that for cases where fault by the Council has led to a child missing education provision we should apply a tariff of between £900 and £2400 a term. The figure we use will then take account of the child’s age, their likely ability to access full-time education and the extent to which they received any provision. This is why the amounts agreed varied as at different times Z had access to different amounts of education provision. While throughout I considered they would not have accessed full-time provision, given their needs.
80. The Council agreed to provide us with evidence when it had complied with the above actions.

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Final Decision

81. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss Y and Z. The Council accepted this finding and agreed to take action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman