Summary: The Council was at fault. It failed to put alternative provision in place for Ms X’s child, Y between January and March 2024 and failed to ensure Y received an education and their specialist provision in line with their Education, Health and Care (EHC) Plan between March 2024 and February 2025. The Council has already provided a partial remedy for its failings which caused Y to miss education between March 2024 and February 2025. The Council agreed to apologise and make a further payment to also remedy Y’s loss of education between January and March 2024. The Council also agreed to take action to improve its service.

The complaint

1. Ms X complained the Council failed to secure the provision specified in her child, Y’s Education, Health and Care (EHC) Plan since December 2023 and failed to name a school for Y to attend. She also stated the Council wrongly issued her with a fine for Y’s non-attendance at school.
2. Ms X said the Council’s failings caused avoidable distress to both her and Y, led to Y missing education and resulted in financial hardship as she had to fund Y’s alternative provision herself.
3. She wants the Council to immediately secure the provision set out in Y’s EHC Plan, apologise to her and Y for the distress caused, and reimburse her for the costs incurred in arranging Y’s alternative provision.

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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. 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.
6. 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.
7. 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)
8. 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 have and have not investigated

9. 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).
10. Ms X initially complained to us in January 2025 however her complaint was premature as the Council had not had a chance to respond. Following the Council’s response to Ms X she brought the complaint back to us in July 2025. Events from January 2024 onwards are not late. Therefore, I am investigating Ms X’s complaint from January 2024 until February 2025 after which Ms X used her right of appeal to the Tribunal. In line with paragraphs 20 to 22 below this puts the period February 2025 onwards outside of our jurisdiction.
11. I am not investigating matters that occurred before January 2024, including Ms X’s complaint that the school wrongly issued a fine for Y’s non-attendance at school from November 2023. This aspect of the complaint is late, and it was reasonable for Ms X to have raised concerns about issues occurring prior to January 2024 with both us and the Council at an earlier stage.

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How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms 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

Legal guidance and background

EHC Plan 

14. 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. 

School consultation stage

15. During the school consultation stage of an Education, Health and Care (EHC) plan, the local authority must formally consult with one or more schools by sending the draft plan and supporting information to ask whether they can meet the child or young person’s needs. It says the following: 
16. Multiple schools can be consulted at the same time. Schools are typically expected to respond within 15 calendar days.
17. If a child’s parent or a young person requests a particular placement, the local authority must comply with that preference and name the chosen setting in the EHC plan unless it would be unsuitable for the child or young person’s age, ability, aptitude, or special educational needs, or if their attendance there would be incompatible with the efficient education of others or the efficient use of resources.
18. All consulted with schools should respond to the council within 15 days, however, the Council does not have to wait for every school to reply before proceeding and naming a placement in the plan.

Content of an EHC Plan

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 

SEND tribunal

20. 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.
21. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
22. 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.

Section 19 duty

23. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
24. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
25. 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))
26. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

Section 42 duty

27. 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)

What happened

Background

28. Ms X has a child, Y with special educational needs who stopped attending school (school P) in January 2023 due to medical reasons. The Council told us it was aware from this point onwards that Y was not attending school. Ms X said Y has had no education since then. The Council provided school P with an AV robot in June 2023 enabling Y to follow live lessons from home.
29. In January 2024, the Council considered home tuitions for Y because they were no longer accessing live lessons at school. Home tuitions started in February 2024. Ms X said the tutor cancelled four out of seven tuition sessions at short notice, causing Y avoidable distress due to their need for routine. The Council said delays were due to tutor capacity issues and Ms X’s availability and therefore tuitions did not start until March 2024. The same month Ms X requested the sessions to stop as they had negatively affected Y’s wellbeing.
30. In March 2024, the Council finalised Y’s EHC Plan naming a specialist school for children with mental health needs in Section I and continued to consult with school placements. Section F of Y’s EHC Plan included the following provision:
• a daily small group programme for 20 minutes in school;
• a daily 20 minute mentoring session in school;
• a targeted 30 minute weekly session to help with Y’s anxiety; and
• individual 30 minute sensory focus time and activities in school.
31. As part of the school consultation process the Council consulted with school P which said it could not meet Y’s needs
32. Despite the negative consultation response, the Council proposed to name school P in Section I on the basis it would continue to seek a transfer to specialist provision once it identified a suitable placement. The Council said this approach would allow it to provide additional funding to school P to support Y’s transition back into education while it tried to secure a specialist placement.
33. School P however disagreed with the Council’s plan of naming it in Y’s final EHC Plan and the Council instead named a specialist placement in Section I.
34. One of the schools the Council consulted, school M, said it could offer Y an immediate placement. School M became Ms X’s preferred school for Y. Despite this, over the following months, the Council continued seeking a specialist placement by chasing responses from the other schools it had already consulted, telling Ms X it needed all those replies before making a final decision. In June 2024, the Council consulted a further six schools, but by November 2024 all of them had declined to offer Y a place.
35. In November 2024, the Council carried out Y’s Annual Review (AR) and in December informed Ms X it had decided to amend Y’s plan.
36. The Council issued Y’s amended final EHC Plan in February 2025 and named school P in Section I. The plan also named a specialist school placement from September 2025 onwards on transition to secondary school.
37. Ms X used her right to appeal the named placement in Section I to the Tribunal.

Complaint handling

38. In January 2025 Ms X complained to the Council about the delays in securing a specialist placement for Y and about the lack of support for Y while unable to attend school. At the same time Ms X complained to us however her complaint had not yet completed the Council’s complaints process.
39. In April 2025 the Council responded that:
• despite school M offering Y a school placement, it had a duty to secure further positive consultation responses from schools to weigh up its options but it acknowledged the consultation process had taken longer than it expected which it said was partially to do with consulted schools not responding in a timely manner;
• it failed to communicate with Ms X in line with its expected service standards between June and December 2024 and apologised to Ms X;
• it acknowledged gaps in providing education to Y between March 2024 and February 2025 and offered Y £2,700 to remedy the injustice caused;
• it acknowledged it delayed its stage 1 complaint response and offered a payment of £200 as an apology to Ms X for the uncertainty this caused.
40. Ms X resubmitted her complaint to us in July 2025.

My findings

41. The Council was aware Y was not attending school since January 2023. In December 2023 school P told the Council Y was no longer accessing live lessons through the AV Robot. The Council had a legal duty to arrange suitable education for children who were out of school due to illness from the 15th day of absence onwards, which in this case was from early January 2024. On balance by considering the need to provide Y with home tutoring provisions, the Council accepted its Section 19 duty to provide alternative provision. However it did not fulfil this duty until March 2024, when tuition started. This was fault which caused Ms X uncertainty and meant Y missed out on nine weeks (or one term) of education between January and March 2024.
42. In March 2024, the Council issued Y’s final EHC Plan naming a specialist placement in Section I however Y remained on roll at school P during this time. The Council had a legal duty from this point to secure the specialist provision set out in the plan. At the same time Y’s Home tutoring stopped at Ms X’s request and there is no evidence the Council had further oversight or considered Y’s education again until February 2025. This was fault causing Ms X uncertainty and frustration and meant Y missed out on suitable education and the specialist provision in their EHC Plan for three further terms between March 2024 and February 2025.
43. The Council has acknowledged Y missed education between March 2024 and February 2025 and offered Ms X and Y a payment to remedy the injustice this caused. However, the Council did not consider the specialist provision Y missed during this period. I have therefore made a recommendation for a further payment to reflect this.
44. When school M decided it could meet Y’s needs and made an immediate place available for Y in February 2024, the Council had a duty to name school M in Y’s EHC Plan unless it could evidence Y’s attendance there would be incompatible with the efficient education of others or the efficient use of its resources.
45. Instead, the Council waited for responses from all other schools it consulted, which delayed naming a placement. By November 2024, nine months later, it had still not secured a suitable alternative placement. In line with paragraph 19, this delay was fault and allowed the naming of a placement in Section I to drift, causing Ms X further uncertainty and avoidable distress in addition to Y’s missed education as already identified in paragraph 45.

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Actions:

46. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Ms X and pay her £2,300 (in addition to the £2,700 already paid) in recognition of the injustice caused to her and to recognise Y’s missed education and specialist provision which was caused by its failure to:
1. meet its Section 19 duty between January and March 2024;
2. consider and meet its section 19 and 42 duties between March 2024 and February 2025;

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.

2. Create an Action Plan demonstrating how it will ensure officers are aware to meet the Council’s statutory duties under sections 19 and 42 when a child, including those with an EHC Plan, is not attending school. It should ensure the action plan includes recording decisions, actions, and communication to ensure transparency and accountability.
2. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman