Summary: Ms X alleges the Council failed to provide or secure suitable education for Y after exclusion, did not deliver EHCP provision, and communicated poorly. We did not find fault in the Council’s substantive education/EHCP duties. However, we found fault for matters concerning record-keeping and delay which caused avoidable uncertainty and a deferred right of appeal. The Council has agreed to our recommendations.

The complaint

1. Ms X says the Council failed to provide suitable education for her daughter, Y, over a two-year period following her exclusion from school. Ms X says the Council did not secure a place at Y’s preferred setting, failed to arrange appropriate alternative provision, and did not deliver the support set out in Y’s Education, Health and Care Plan (EHCP). Ms X is also dissatisfied with the Council’s communication, record-keeping, and the way it responded to her concerns

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The Ombudsman’s role and powers

2. 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)
3. 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.
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(i), as amended)
5. 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

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council were offered an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I have and have not investigated

8. I have not investigated events outside the scope of the complaint period. I have limited my investigation up to events ending when the Council issued its final response, in December 2024.
9. I have not investigated the detailed content of the teaching materials or pastoral support provided by schools and the PRU, including the online modules Ms X describes. These are matters about what happened in school, which are outside the Ombudsman’s jurisdiction. I have considered whether the Council met its duties to arrange and secure education, but not the academic or pastoral quality of classroom materials.
10. Ms X also raised concerns about the decision to end Y’s placement at School B and the way the school dealt with the incident leading to her exclusion. Complaints about the actions of individual schools, including decisions on behaviour management and exclusion, are outside the Ombudsman’s jurisdiction. I have therefore not investigated the actions of School B.

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What I found

Relevant law and guidance

Education, Health, and Care (EHC) Plans

11. 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.
12. 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)  

Alternative provision of education

13. 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.
14. 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)
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
16. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that 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)
17. 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.
18. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence.
19. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Delivery of special educational provision

20. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
21. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
22. It is inappropriate for the council to seek to delegate to the school the responsibility for ensuring that the requirements of a child’s EHC Plan are delivered. The statutory responsibility for securing the special educational provision specified in the EHC Plan rests with the council, not the school. It is for the council to prove that it is doing all it can to meet its legal duty to secure for a child the special educational provision to which he is entitled. (R (on the application of HXN) v Redbridge London Borough Council [2024] EWHC 443 (Admin))

Attendance and enforcement

23. Councils and schools have statutory powers to promote and enforce regular attendance. Where a child of compulsory school age is registered at a school and fails to attend regularly without authorisation, the parent may receive a penalty notice under the Education (Penalty Notices) (England) Regulations 2007 or be prosecuted under section 444(1) or section 444(1A) of the Education Act 1996.
24. These measures can operate alongside a council’s duties to arrange suitable education under section 19 and to secure special educational provision under section 42. The use or outcome of attendance enforcement does not extinguish those duties, but it may be relevant evidence when considering whether suitable education was available and accessible in practice.

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What happened

25. I have included a summary of some of the key events in this complaint. It is not intended to be a comprehensive account of everything that took place.
26. Y has an Education, Health and Care Plan (EHCP) maintained by the Council. She was permanently excluded from school in February 2023 during Year 10. Y’s final EHCP was first issued in August 2022. An early review meeting took place in December 2022. The Council issued a proposed amended EHCP in February 2023 and a final amended plan in March 2023, which continued to name a mainstream setting.
27. Following the exclusion, Y was placed on roll at The Beacon Centre, a pupil referral unit (PRU), from February 2023 to July 2024, but she did not attend. During 2023 the Council consulted several providers and explored alternatives, including Park View School, Parkside House, Ashbrooke, Brenkley, Endeavour and Howard House. In March 2023 it consulted Park View, Ms X’s preferred placement. The Council later said Park View replied in March 2023 to confirm it could not offer a place due to capacity, which it says was reconfirmed in April 2023. The Council accepts this was not clearly recorded or communicated at the time. The evidence shows that most of these providers did not offer Y a place, mainly due to capacity or suitability concerns. Howard House, which is located in a neighbouring authority, was one of the few providers that was able to indicate a willingness to consider a place.
28. In autumn 2023 Ms X raised concerns with the Council about Y’s non-attendance and why no enforcement action had been taken. The Council’s attendance service then escalated the case. A Stage 2 attendance meeting was held in September 2023 with Y and her father, followed by a final warning letter in October 2023. The SEND officer recorded ongoing work to identify provision, including a possible visit to Kip McGrath. The Council commenced attendance proceedings in early 2024. Papers were served for a hearing listed in April 2024 and, at that hearing, the court imposed a fine, victim surcharge and costs on the parent for Y’s non-attendance.
29. The Council records activity to encourage re-engagement. In February 2024 it offered a Connexions appointment. In March 2024 the Education, Employment and Training Officer discussed South Tyneside College. In April 2024 the Council recorded that Y declined to engage with that officer. Between April and July 2024, the case was held by an agency officer and the Council acknowledges gaps in its record-keeping for that period.
30. Ms X says that during Y’s time on roll at The Beacon, the online material used focused heavily on street and knife crime and that both she and a member of staff at the dual-registered school raised concerns this content was not appropriate, particularly at a time when Y was self-harming.
31. In October 2024 the Council held Y’s annual review. It issued a proposed amended EHCP later that month and a final amended plan in December 2024, with administrative corrections in January 2025. The plan named a general further education college by type only, as no specific setting had been secured. In December 2024, a panel considered transition and online options (including Routes2Work, Kip McGrath and Key Subject Tuition). The Council sent information about specialist college open days in December 2024, consulted Kip McGrath later in December 2024, and noted in January 2025 that both Key Subject Tuition and South Tyneside College could meet Y’s needs.
32. Throughout the period, the Council says it worked with Connexions, Youth Justice and other services to explore options, including South Tyneside College, South Tyneside Works, Routes2Work and training linked to Y’s stated interests. Whilst it records that Y was reluctant to engage and could not be compelled to attend, Ms X asserts that at the same time, Y engaged with Youth Justice interventions and attended Connexions appointments.
33. During the complaint process, the Council acknowledged shortcomings in communication and record-keeping and missed opportunities to follow up consultations or confirm provision more robustly. It says the SEND service has since undergone a restructure, introduced a consultation tracker and clarified lines of accountability.

Response to enquiries:

34. As part of my investigation, I made enquiries to the Council. Of note, the Council said:
• It had made multiple efforts to secure alternative education provision for Y, including online tuition, smaller educational settings, and post-16 providers, but Y either disengaged or declined to participate in the options offered.
• It had consulted Park View School, Ms X’s preferred placement, in March 2023. While there was no contemporaneous record of a response, the Council later confirmed the school replied to say it could not offer Y a place due to lack of capacity.
• There were acknowledged delays and omissions in how it followed up placement consultations and communicated with Ms X about next steps.
• The Council reviewed and amended Y’s EHCP in late 2024. The final plan issued in January 2025 named a general further education college by type only, as no agreed or accessible setting could be identified.
• There were gaps in case recording between April and July 2024 when the case was allocated to an external agency worker.
• A restructure of the SEND service took place in 2024 to address wider issues including staffing capacity, communication, and process monitoring.

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Analysis

Provision of education and delivery of the EHCP

35. The law requires councils to arrange suitable full-time education when a child is not receiving it by reason of exclusion or otherwise (section 19), and to secure the special educational provision set out in Section F of an EHCP (section 42). They can operate alongside attendance enforcement where a child is considered able to attend. While a council cannot compel attendance, it must take reasonable, timely steps to make education available and to secure the provision in the plan.
36. Following Y’s exclusion in February 2023, she was placed on roll at The Beacon Centre (PRU) until July 2024. The Council’s position is that the PRU was a suitable, available setting capable of delivering Y’s EHCP, but Y did not attend. During 2023 it consulted a range of settings. Park View, Ms X’s preferred placement, is now evidenced as having declined due to capacity in March (reconfirmed in April), although this was not recorded at the time. Parkside House offered a visit which Ms X attended. The Council says other specialist/smaller settings were explored. In early 2024, the Council records attempts to re-engage through Connexions and its Education, Employment and Training Officer but Y declined to engage. The Council accepts there is a recording gap between April and July 2024 when an agency officer held the case.
37. I recognise Ms X’s concerns that some of the online material used while Y was on roll at The Beacon was not well-matched to her needs or mental health at that time. Those concerns relate to decisions made by the school/PRU about the content of the curriculum, which are matters outside the Ombudsman’s jurisdiction. My role is to consider whether the Council took reasonable steps to arrange and secure suitable education, not to oversee detailed curriculum decisions. Ms X also says Y initially engaged well with tuition from Key Subject Tuition but later struggled to continue because of her ASD, anxiety and health difficulties. This pattern of initial engagement followed by difficulty sustaining participation is consistent with the broader pattern of fluctuating engagement rather than evidence that no provision was available.
38. In parallel, following Ms X’s concerns, the attendance service escalated non-attendance. A Stage 2 meeting took place in late September 2023, followed by a final warning in October 2023. Proceedings were then issued and in April 2024 the court imposed a fine, victim surcharge and costs on the parent for non-attendance. After Y ceased to be on roll at the PRU, the Council moved to secure post-16 options. It held an annual review in October 2024, a multi-agency panel in December 2024 considered transition and online packages (including Kip McGrath/Key Subject Tuition), and the Council sent information about January-start courses and specialist college open days in December. It also consulted an online provider in late December. Ms X’s position is that, despite these steps, Y remained out of education and the Council did not arrange accessible provision or keep her properly informed.
39. On the balance of evidence to December 2024, I am not persuaded the Council failed in its core duties under sections 19 and 42 for the periods when suitable education was available and practicable to attend but Y did not do so. First, up to July 2024, a PRU place existed that the Council considered capable of delivering the EHCP. The Council did not simply leave matters to the family, it consulted alternative providers, sought to facilitate visits and engagement, and used its attendance powers. The subsequent conviction for non-attendance is persuasive in that, by spring 2024, the court accepted education was available and Y was able to attend. In those circumstances, I do not find the Council was under a further obligation to arrange different “alternative” provision because the statutory test is availability and accessibility of suitable education, not guaranteed participation.
40. Second, for autumn 2024, the evidence shows the Council took steps aimed at arranging a realistic January start following the October review. It considered a range of delivery models (transition routes, smaller providers, online offers), shared specific January-start opportunities, and issued a consultation to an online provider before the end of term. Y engaged with some services, such as Youth Justice and Connexions, but did not sustain participation in education and training options over time. Given the practicalities of mid-term starts for post-16 pathways, and taking into account Y’s ASD, anxiety and other health needs, I consider that she experienced significant difficulties sustaining engagement with education and training offers. Those difficulties contributed to the lack of ongoing provision, but they do not demonstrate that suitable provision was unavailable or that the Council failed to take reasonable steps to make it available within that short window.
41. Ms X believes the Council should have pursued a place at a local special school such as Epinay. There is no evidence the Council consulted Epinay for Y, but there is also no evidence that Epinay had a place available or would have accepted her. The law does not require a council to consult every possible school, and on the evidence available I cannot say the failure to consult Epinay, in itself, amounts to fault. I have considered Ms X’s point that a placement in a different borough would have been challenging for Y given her ASD and anxiety. However, because Y never attended Howard House and the Council did not insist on that placement, I cannot say this potential option, by itself, shows a breach of the Council’s duties.
42. I recognise separate concerns about how the Council recorded and communicated key matters, most notably the absence of a record of Park View’s March/April 2023 refusal and the acknowledged recording gap between April and July 2024 when an agency officer held the case, as well as delay in the 2024 EHCP review. I address these under the later subheadings on Park View consultation and communication and Delay in reviewing and amending the EHCP. These shortcomings caused avoidable uncertainty but, on the evidence to December 2024, they do not demonstrate a breach of the substantive duties under sections 19 or 42.
43. Taking these points together, my view to December 2024 is that there is no fault in the Council’s discharge of its duties to arrange suitable education and to secure EHCP provision for periods when suitable provision was available and reasonably practicable to attend but was not accessed. There is administrative fault in record-keeping and communication, which caused injustice in the form of uncertainty and frustration; I consider these issues, and appropriate remedies, later in this decision.

Delay in reviewing and amending the EHCP

44. Councils must review EHCPs at least annually and are expected to issue any amendments within statutory timescales. Where amendments are proposed, the SEN Code of Practice and caselaw require councils to issue a draft amended EHCP within four weeks of the review meeting and a final amended plan within eight weeks of the draft.
45. Y’s EHCP was reviewed in December 2022 and amended in March 2023. The next annual review should therefore have taken place by March 2024 at the latest. The Council did not hold this review until October 2024, a delay of about seven months.
46. The Council says the delay arose from difficulties finding a date both parents could attend. Ms X disputes this and says the Council held many meetings with only her present. Whatever the precise cause, the Council still had a duty to complete the review within the statutory timescales and could have proceeded with available attendees. The delay meant the Council was operating without an up-to-date assessment of Y’s needs when trying to identify appropriate provision.
47. Once the review took place, the Council issued a proposed amended EHCP in late October 2024 and a final amended plan in mid-December 2024, which was broadly within the expected timescales from the review date. The delay in holding the review itself was fault.
48. This delay caused injustice to Ms X in the form of prolonged uncertainty about the contents of the plan and a deferred right of appeal at a pivotal stage in Y’s education. It also risked delaying decisions about appropriate provision.

Failure to secure or provide clarity about Park View School

49. The Council consulted Park View School, Ms X’s preferred placement for Y, in March 2023. However, there is no record that it received or recorded a formal response at the time. The Council later said, during the Stage 3 complaint and in its response to my enquiries, that Park View replied in March 2023 to confirm it could not offer a place due to lack of capacity. The school reportedly reiterated this in April 2023 when contacted again.
50. This response was not documented in the Council’s records at the time and was not shared with Ms X until much later. The Council accepts that this consultation outcome should have been recorded more clearly and communicated to the family. It says a new consultation tracker has since been introduced to address this issue.
51. The failure to keep a proper record of Park View’s response, and to communicate this outcome to Ms X in a timely and transparent manner, was fault. Ms X was left unsure whether Park View had genuinely been considered or whether her daughter had missed out on a place due to administrative error or inaction. This uncertainty contributed to her distress and undermined her confidence in the Council’s handling of the case.

Poor communication and case management

52. Councils have a duty to communicate clearly with parents and to maintain accurate records of key decisions and actions. Good administrative practice also requires councils to respond to concerns in a timely manner, involve all relevant parties, and ensure continuity of service, particularly during staff absences or transitions.
53. The Council has acknowledged that its communication with Ms X was inadequate at various stages. This included failing to explain the outcome of consultations, not keeping her informed about the steps being taken to arrange education, and not responding promptly to her concerns. It also failed to involve both parents consistently or provide timely updates during periods of staff turnover.
54. Between April and July 2024, Y’s case was held by an external agency case officer. The Council accepts that its record-keeping during this period was incomplete. It has since introduced structural reforms within the SEND service, including clearer oversight arrangements and process improvements.
55. Ms X says she wrote to senior officers about the circumstances of Y’s exclusion from School B and did not receive any substantive response. The Council has not been able to provide records showing how it replied. While I cannot make detailed findings about the school’s decision to end the placement, the absence of clear Council records of any response contributes to the overall picture of weak communication in this case.
56. The communication failures in this case were significant. They prolonged Ms X’s uncertainty, created avoidable confusion, and contributed to a sense that her concerns were not being taken seriously. These were administrative faults that caused injustice in their own right, separate from the impact of the missed education.

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Agreed action

57. To prevent similar occurrences and remedy injustice in this complaint, the Council will:
1. Send a written apology to Ms X acknowledging the administrative faults identified.
2. Make a symbolic payment of £400 to Ms X to recognise the avoidable uncertainty, frustration and deferred right of appeal caused by those faults.
3. Undertake a review of SEND casework processes, to produce a short action plan covering:
1. how placement consultations are recorded and communicated to families;
2. how annual reviews are scheduled and escalated where all parties cannot attend; and
3. how case transfers/absences are managed to prevent recording gaps.
58. The Council will complete action points a and b within one month of the Ombudsman final decision and action point c within three months of the Ombudsman’s final decision. The Council will provide us with evidence it has complied with the above actions.

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Decision

59. We did not find fault in the Council’s substantive education/EHCP duties. However, we found fault for matters concerning record-keeping and delay which caused avoidable uncertainty and a deferred right of appeal. The Council has accepted our recommendations.

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Investigator's decision on behalf of the Ombudsman