Summary: The Council delayed putting in place full-time education and the provision in Y’s education, health and care plan. That means Y missed out on education and special educational needs provision. An apology, payment to Mr X and evidence of action the Council has taken is satisfactory remedy.

The complaint

1. The complainant, Mr X, complained the Council failed to provide his son, Y, with full-time education and provision in his education, health and care plan (EHC Plan) after he stopped attending school.
2. Mr X says because of the Council’s actions his son missed out on education and special educational needs 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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. 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)
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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What I have and have not investigated

7. Mr X put in his complaint in February 2025. I have exercised the Ombudsman’s discretion to investigate what has happened since Y stopped attending school in 2023. That is because I am satisfied there is continuing fault and significant injustice.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special educational needs

10. A child with special educational needs (SEN) may have an EHC Plan. The EHC Plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure arrangements in the EHC Plan are put in place and reviewed each year.
11. The Council has a duty to secure the special educational provision in an EHC Plan for the child or young person. (Section 42 Children and Families Act).

Alternative educational provision

12. The Education Act 1996 says if a child of compulsory school age cannot attend school for "reasons of illness, exclusion from school or otherwise" the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
13. 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)

What happened

14. Following a tribunal consent order the Council issued a final EHC Plan naming a mainstream school, school A, for Y in September 2023. Y struggled to attend school consistently and an educational psychologist met with him in school in November. The educational psychologist recommended strategies to enable Y to attend school.
15. The Council carried out an annual review of the EHC Plan in March 2024. At that meeting school A told the Council Y had stopped attending and it could no longer meet needs. School A told the Council it did not consider Y would be able to attend a mainstream school. The Council agreed to consult specialist schools.
16. The Council began consulting specialist schools and started looking for alternative provision for Y in May 2024.
17. The Council reviewed the case again in September when it identified Y was still not attending school. The Council consulted further special schools in November and December 2024.
18. Following involvement by Mr X’s MP the Council told her it had consulted schools and referred Y for alternative provision.
19. The Council requested further bids for alternative provision in March 2025 and received some offers from providers.
20. In April 2025 Mr X deregistered Y from school A and the Council received an elective home education form.
21. Following further contact from Mr X’s MP the Council told her it had begun to look for an independent school and had received bids for alternative provision.
22. The Council responded to further contact from the MP in June 2025 and apologised for the lack of progress in identifying specialist provision and putting in place alternative provision.
23. When responding to the MP in July the Council again apologised for the lack of progression and said it would discuss alternative provision with Mr X while it sought an alternative school.
24. The Council sought alternative provision for Y in August 2025. I understand that resulted in the Council putting in place 15 hours provision before it identified a school for Y to attend. Y began attending school in November 2025.
25. In response to Mr X’s complaint the Council apologised for the failure to provide education and said it had taken the following action:
• carried out improvements to the statutory assessment, monitoring and accountability processes which will include provision for better managing sickness and leave absences alongside considering options for procuring additional staff to support the demand;
• improving communication with parents and carers.

Analysis

26. Mr X says the Council failed to provide Y with full-time education and provision in his EHC Plan when he stopped attending school in 2023. The evidence I have seen satisfies me the Council issued an EHC Plan naming school A following an agreement before tribunal in September 2023. The documentary records show Y experienced some difficulty attending school A full-time and then stopped attending school, although it is not clear when he stopped attending school completely. I note though an educational psychologist visited Y in school in November 2023. That educational psychologist recommended strategies to help Y attend school. So, I am satisfied there would have been no reason for the Council to consider its section 19 duty at that point as the plan was to work with Y to enable him to attend school A.
27. The earliest I can see the Council became aware Y had stopped attending school completely was at the annual review in March 2024. At that point school A told the Council it could not meet Y’s needs and a mainstream placement was no longer appropriate for him. I am satisfied the Council agreed to consult specialist schools as a result.
28. I am concerned about what happened after that. There is no evidence the Council made any attempts to identify alternative provision for Y before May 2024. Nor is there any evidence the Council began consulting specialist schools before May. I am concerned about that because the Council has a section 19 duty to ensure children receive an education. I am satisfied the Council should have known its section 19 duty was engaged at the annual review in March 2024. However, I have no evidence the Council put in place any education until November 2025. That is despite the Council receiving multiple offers of alternative provision for Y in the intervening period. Failure to ensure Y received education also meant he missed out on his special educational needs provision. That is fault.
29. I am satisfied though Mr X deregistered Y from school in April 2025 and agreed to electively home educate him. That was likely because Mr X had become frustrated by the lack of progress identifying Y a new school placement. What it means though is at that point the Council no longer had a section 19 duty to provide Y with education or the provision in his EHC Plan.
30. I therefore consider it likely Y missed out on education and special educational needs provision for four terms. I consider an apology and payment of £1,800 per term an appropriate remedy. That equates to £7,200. I note the Council has put in place some measures to address the issues that arose in this case, which I refer to in paragraph 25. I recommended the Council provide the Ombudsman with evidence of the measures it has taken to address the failures in this case.
31. The Council also accepts there is a lack of case recordings available for 2024 which means it cannot explain why things were missed in this case. I consider it likely this is because the Council was using an agency caseworker. Should the Council continue to employ agency caseworkers I recommended it have in place a monitoring system to ensure case recordings are properly kept. The Council has agreed to my recommendations.

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Action

32. Within one month of my decision the Council should:
• apologise to Mr X for the distress he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr X £7,200;
• provide evidence to the Ombudsman of the measures the Council has taken to address the failures in this case; and
• should the Council continue to employ agency caseworkers it should ensure adequate monitoring arrangements are in place so case recordings are properly kept.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I find fault causing injustice. The Council will take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman