Summary: Miss C complained the Council named an inappropriate school in her son’s, who I will refer to as D, Education, Health and Care Plan (EHC Plan) and failed to deliver section F provision in the Plan to him. She also complained the Council’s communication with her was poor. There was fault by the Council. It did not ensure D received section F provision in his EHC Plan. It also did not arrange alternative provision for D when it was aware he was not receiving regular full-time education or later when he was permanently excluded. The Council’s communication with Miss C was also poor. Because of the fault, Miss C suffered distress, and D suffered a loss of education and provision. The Council has agreed to apologise to Miss C and D, and make symbolic payments.

The complaint

1. Miss C complains the Council:
• named an inappropriate school in her son, D’s, Education, Health and Care Plan (EHC Plan);
• failed to deliver provisions set out in D’s EHC Plan to him, including after he was permanently excluded; and
• failed to communicate with her about the matter.
2. Miss C says the Council’s actions have caused distress and upset to her, and D has missed out on education and provision. Miss C would like the Council to give her a financial remedy and provide D with education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law 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)
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 SEND Tribunal in this decision statement.
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. I have investigated matters in this case from April 2024, when the Council issued a final EHC Plan for D, to January 2025, when the Council sent Miss C its final complaint response. I reference matters outside of these dates for context.
9. I have not investigated matters relating to the content of D’s final EHC Plan, including the named education setting. This is because only the Tribunal can direct changes to sections about the education or the name of the educational placement. However, I have exercised discretion to consider the missed education from the period after the final EHC Plan was issued, as detailed in paragraph 28.

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How I considered this complaint

10. I read Miss C’s complaint and spoke to her about it on the telephone.
11. I considered evidence provided by Miss C and the Council as well as relevant law, policy and guidance.
12. Miss C 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

EHC Plan 

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 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. 

Content of an EHC Plan

14. 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.

Maintaining the EHC Plan

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). 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)  

General section 19 duty

16. 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.
17. 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)

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What happened

18. This is a summary of events outlining key facts, and it does not include everything that has happened in this case.
19. At the end of April 2024, the Council issued a final EHC Plan for D. Section I of the Plan named a mainstream education setting. Section F of the Plan detailed provisions including one to one weekly support sessions with teaching staff to support D’s learning; and one to one weekly sessions with a trusted adult or an emotional literacy support assistant to develop D's emotional understanding. At this time, D was attending school for one hour a day.
20. In June 2024, Miss C told the Council she and D’s school wanted a specialist setting to be named in the Plan. There was a panel held in September 2024 which decided the setting in the Plan should be changed to a Social, Emotional, and Mental Health (SEMH) setting. The panel also suggested the Council should work with D’s school to arrange alternative provision for him. At this time, D was attending school on a reduced timetable of one hour a day following three suspensions he received in the first three weeks of term.
21. In early October 2024, Miss C raised a complaint with the Council. She told it D was in year 9 and had missed a significant amount of education since year 7. She said he was only receiving one hour of education a day, and the Council’s communication with her had also been poor.
22. In late October 2024, the Council sent its stage one complaint response to Miss C. It told her:
• It apologises communication from the service had not been regular and up to standard.
• The panel had recognised D was not in the right education setting for his needs, and the decision had been made to change the type of setting to SEMH. It told Miss C it would arrange to ask D’s school to ensure provision was increased to support D while it started consultations with potential SEMH settings.
23. In early December 2024, Miss C escalated her complaint with the Council. In mid-December 2024, D was permanently excluded from school.
24. In early January 2025, the Council sent its stage two complaint response to Miss C. It told her:
• D’s school placed him on a significantly reduced timetable to try and avoid a permanent exclusion while a suitable setting was being found for him. The Council told Miss C the school tried to increase D’s hours in school, but despite the adjusted timetable, his behaviour resulted in several suspensions, and he was eventually permanently excluded.
• There is currently a focus within the SEND service to improve communication and responses are being monitored.
• The Council’s view is D’s school had been following its duties to make education provision available for D.
• The recommendations following the stage two investigation were for the service to consider how best to support D in recognition of any missed education opportunities from December 2024 when he was permanently excluded; and the service to update Miss C about progress on the consultations and responses.
25. A week later, the Council contacted Miss C. It further apologised for the faults identified as part of the stage two investigation, and it offered Miss C £150 to acknowledge the uncertainty caused by the Council’s lack of communication.
26. The Council put in place online school for D for 120 lessons between late February 2025 and early April 2025.

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Analysis

27. In April 2024, the Council issued a final EHC Plan for D, naming a school it had not consulted with. Statutory guidance says councils must consult the educational institution before naming it in the Plan. The Council did not do this, but it should have known the school could not meet D’s needs, given earlier correspondence to it about this.
28. Miss C had a right of appeal to the SEND Tribunal when the final EHC Plan was issued. She did not appeal because the Council gave her the choice to appeal or take the case back to panel to request a change of setting from mainstream to specialist SEMH. I have also seen correspondence from Miss C in August 2024, where she says she tried to appeal, but she was missing the panel’s signed and dated decision letter from the Council. As such, it was not reasonable for Miss C to appeal, and so I have exercised discretion to look at the period of missed provision after the final EHC Plan was issued.
29. The Council was aware D was attending school on a part-time timetable from April 2024, and he had stopped attending in December 2024 when he was permanently excluded. So, the Council knew D would not be receiving all the provision in section F of his EHC Plan while not at school. As outlined in paragraph 15, section 42 of the Children and Families Act requires councils to secure provision in section F. We expect councils to provide as much of the special educational provision as possible in a home or at an alternative setting even where a child cannot attend school. From April 2024, D was not receiving provisions detailed in section F. Nor did the Council take sufficient action to ensure D was receiving section F provision; or consider if it needed to make alternative arrangements to meet its section 42 duty. This was fault.
30. The law also requires councils to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. It seems the Council accepted D’s school was not suitable in September 2024, following the panel. The Council considered its section 19 duty at this time as it asked the relevant team to contact D’s school to ensure provision was increased to support D while it started consulting with SEMH settings. So, at least from this point, the Council should have been taking more action to provide an education for D until it could find an alternative school. It did not do this. This was fault.
31. The Council knew D was attending school for one hour a day and the school was likely to exclude him. D was later permanently excluded in December 2024, which meant he was not receiving education provision, as well as the provision outlined in section F of his EHC Plan. The Council should have considered if its section 42 or section 19 duty was owed at this time when D was excluded, as it knew he would not be receiving an education provision while it continued to consult with other placements. The Council failed to do this. This was fault.
32. The fault by the Council caused an injustice to D. D missed section F provision from April 2024. He also missed education for five months had the fault by the Council not occurred – from September 2024, when the Council accepted the school was not suitable and should have been doing more to ensure D received an education, to February 2025 when the Council put online learning in place for D. I have made a recommendation below to reflect this.
33. It is clear from the documentation, and the Council has acknowledged, communication with it has been poor. The Council has apologised to Miss C for this and has explained the service has experienced variations in staffing levels, which has affected the consistency of service delivery. The Council offered Miss C £150 to acknowledge the uncertainty caused to her by its poor communication, which I consider to be adequate.
34. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
35. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
36. When a young person has missed education because of fault by a council, we may recommend the council make a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. In determining an appropriate level we will take account of factors such as:
• The severity of the young person’s SEND as set out in the EHC Plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a young person’s school career, for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.
37. Given D’s age, the stage of his education and the level of education and provision that was provided, I consider a payment of £900 per term of missed education provision would be appropriate.
38. We have recently made recommendations for the Council to improve its EHC service, particularly in arranging alternative education provision. I have therefore not made further service improvement recommendations for these matters.

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Action

39. To remedy the outstanding injustice caused to Miss C and D by the fault I have identified, the Council will take the following actions within four weeks of my final decision:
• Apologise to Miss C and D for failing to ensure D received section F provision; failing to consider if it needed to make alternative arrangements to meet its section 42 duty; failing to take sufficient action to ensure D was receiving an education from September 2024 when it accepted his school was not suitable; and failing to consider its section 19 and section 42 duties when D was excluded in December 2024. This apology should be in line with our guidance Making an effective apology.
• Pay Miss C the £150 it previously offered to her to acknowledge the injustice caused to her by the Council’s poor communication, if it has not already done so.
• Pay Miss C £1,245 for not providing education provision to D from September 2024 to February 2025.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I uphold Miss C’s complaint and find faulting causing injustice to Miss C and D. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman