Summary: The Council put in place suitable alternative educational provision for Mr X’s child, Y when they stopped attending school, so it was not at fault. The Council was at fault for failing to issue Y’s Education, Health and Care (EHC) Plan within the statutory timescales and for failing to provide Y with some of the specialist provision set out in the Plan. The Council has agreed to apologise and make a payment to recognise the impact of Y’s missed education.

The complaint

1. Mr X complained the Council failed to provide his child Y with a suitable education after they stopped attending school. He also complained the Council failed to ensure Y was received the specialist provision set out in their Plan.
2. This caused Mr X’s distress, frustration and uncertainty as Y has missed out on educational provision.

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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. 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.
5. 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)
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 Mr X and the Council as well as relevant law, policy and guidance.
8. Mr 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

Relevant law and guidance

EHC Plans

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. 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.
10. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section E: Intended outcomes for the child
• Section F: The special educational provision needed by the child or the young person. 

11. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.

12. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
13. 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).

Elective Home Education (EHE)

14. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
15. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.

Section 19

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)
18. The law does not define full-time education, but children should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated.
19. Councils must provide suitable full-time education for excluded pupils from the sixth school day of exclusion (Children missing education statutory guidance, September 2016).

What happened

20. Mr X has a child Y with special educational needs. At the end of January 2024, the primary school Y was attending requested an Education Health and Care (EHC) needs assessment for Y. The school permanently excluded Y at the end of March 2024.
21. At the end of April 2024, the Council received Educational Psychology (EP) advice for the EHC needs assessment which was within timescales.
22. Two days after receiving this, the Council placed Y in full time alternative educational provision at provider A which the Council considered suitable.
23. In Mid-June 2024, Mr X’s wife, Mrs X, told provider A that Y would no longer be attending as their behaviour had gotten worse. Mrs X also advised provider A the Council should finalise the EHC Plan soon. The deadline for issuing the final EHC Plan was 17 June.
24. Between then and the summer holidays, provider A attempted to resolve their concerns so Y could continue to attend. It also advised it may not be a quick process getting a school placement.
25. In early September 2024, the Council contacted provider A to see if Y was attending which they were not. By the end of September, Mr and Mrs X had a formal arrangement in place to electively home educate Y.
26. Mr X raised a stage one complaint saying that Y has been out of an educational setting with no suitable provision since March 2024.
27. The Council responded at the start of October 2024 saying it did arrange alternative education that was reasonably practicable for Y and was available to access from April 2024.
28. At the end of October, Mr and Mrs X decided to no longer home educate Y and informed the Council of this. At the end of November 2024, the Council issued Y’s final EHC Plan naming a special school but the placement was not available until September 2025.
29. The final EHC Plan included seven outcomes for Y to work towards. The provision Y was entitled to in order to meet these outcomes included but was not limited to the following:
1. Teaching and support staff to use three-picture sequencing cards and colourful semantic resources to develop Y’s communication skills;
2. Teaching and support staff to support verbal instructions with visual prompts;
3. Allow opportunities for Y to integrate with peers;
4. Y will be allowed Playdough to calm and encourage them to remain seated;
5. Teaching and support staff to assist with a Growth Mindset;
6. Speech and Language Therapy programmes;
7. Direct teaching and intervention in the area of emotional literacy for a minimum of 20 minutes weekly;
8. Teaching and support staff to use emotion coaching;
9. Use social stories to support Y’s understanding of what safe actions are and put boundaries in place about these;
10. Use role play between adults, Y and other children to rehearse situations of safe actions;
11. Use interventions such as circle time to address these issues of safety;
12. Teaching and support staff to show Y calming activities and create a range of communication strategies to support Y to express their feelings; and
13. Teaching and support staff to assist in formally recording positive aspects of their work and compiling this into a book.
30. The Council put in place a package of alternative provision at provider B for Y from the start of December 2024 until the summer holidays 2025. The Council said this was for 15 hours per week with three or four other children. Y also had a 1:1 learning mentor.
31. In January 2025, Mr X escalated the complaint to stage two. He said Y remained without full-time provision and the Council had not implemented the specialist provision in their EHC Plan.
32. In March 2025, the Council issued a stage two complaint response saying:
• The Council is unable to offer a special school placement until September 2025;
• In the meantime, provider B will continue to provide 15 hours of provision a week which is an appropriate amount of hours given the high level of 1:1 involved; and
• Provider B has been commissioned on its ability to implement the provision as detailed in Y’s EHC Plan.
33. Mr X remained dissatisfied with the Council’s handling of the matter and complained to us.
34. In September 2025, Y started at their special school placement.

The Council’s response to our enquiries

35. The Council has said most of the children attending provider A have an EHC Plan or are in the process of getting one. It said Y had an induction period and a variety of assessments to ensure a suitable education was put in place.
36. The Council provided three records from December, April and July 2024 showing Y’s progress at provider B which included their progress towards three outcomes recorded in their EHC Plan. The first record from December only provides information on how Y has settled in as he had only joined a couple of weeks ago. The records show Y engaged well, was studying core subjects and the provider used the following approaches during the provision:
• Visual resources such as sequencing cards and picture prompts to support Y’s understanding and communication;
• Interactive activities including learning through play and community visits;
• Countdown timers and reward charts to support with emotional regulation; and
• Movement breaks and sensory activities to improve focus and reduce anxiety.
37. The Council said it has reviewed workloads and staffing, recruiting additional staff where necessary to avoid delays in the writing of EHC Plans.

My findings

S19 provision

38. When the school permanently excluded Y towards the end of March 2024, the Council had a duty put alternative provision in place from the sixth day of the exclusion. The sixth day fell at start of easter holidays so we would expect the Council to have the provision in place for the new term. There was a one week delay in the Council arranging this which was fault. This meant Y missed out on a week of education.
39. Between April and June 2024, Y attended provider A full-time but Mr and Mrs X then removed them as Y’s behaviour deteriorated. The Council considered the education was suitable and it was reasonably practicable for Y attend. The provider tried to resolve Mr and Mrs X’s concerns prior to the summer holidays so Y could continue to attend. By the time the Council contacted the provider for an update at the start of the new term, Mr and Mrs X had decided to electively home educate Y. There was no fault in how the Council made its decision to place Y at provider A and therefore, I cannot question it.
40. When provider A could not resolve Mr and Mrs X’s concerns, we would expect the Council to review the suitability of the placement. However, they had already decided to electively home educate so there was no fault in the Council not reviewing this.
41. After Mr and Mrs X stopped home educating Y the following month, the Council put in place a package of provision for 15 hours a week. As there was 1:1 tuition, 15 hours was suitable given the increased intensity of the learning. This comprised of core subjects as well as some section F provision. The records show Y attended and engaged well with this. The Council put in place suitable alternative provision for Y to attend, therefore, it was not at fault.

EHC Needs assessment delays

42. Following the school’s request for the Council to carry out an EHC needs assessment, it had to follow the statutory timescales set out in the law and the code. Therefore, the Council should have received the EP advice in April 2024 and issued the final Plan by June 2024.
43. The EP advice was available to the Council in April in order for it to have met the June deadline. However, the Council then took too long to finalise Y’s EHC Plan. It delayed finalising the Plan until November 2024. This fault caused Y to miss out on 16 weeks of specialist provision.
44. The Council has recruited additional staff to address its delays in the EHC Plan writing process. Therefore, it does not require a further service improvement.

Provision in the EHC Plan

45. By November 2024, Y had an EHC Plan in place so the Council should have considered how to make the provision specified in section F of the Plan available to Y at provider B. The Council has evidenced that provider B delivered some of the provision such as the Speech and Language Therapy programmes to help Y work towards three out of the seven outcomes specified in section E of the Plan. However, from the records provided, the Council has not been able to demonstrate that Y received all the section F provision outlined in paragraph 29.
46. The Council had a duty to secure all special educational provision set out in the plan and its failure to do this was fault. As a result, Y has missed out on just over two terms of some special educational provision.
47. We typically recommend between £900 and £2400 per term in recognition of lost provision, depending on the severity of loss. I have recommended a lower payment as Y has received some of the provision referred to in paragraph 27.

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Action

48. Within six weeks of the final decision, the Council has agreed to:
1. Apologise to Mr X for its delay in issuing Y’s final EHC Plan, its failure to make all of Y’s section F provision available for them and its failure to implement alternative provision on the sixth day of exclusion. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Pay Mr X £1200 to recognise Y’s loss of provision between June and November 2024 caused by its delay in issuing the EHC Plan.
3. Pay Mr X £1500 to recognise Y’s partial loss of provision between December 2024 and July 2025.
4. Review how it keeps oversight of children out of school with an EHC Plan to ensure it has sufficient procedures in place to check SEN provision is in place and being received.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman