Summary: Miss X complained the Council failed to keep her child’s part-time timetable under review and failed to consider its duty to provide alternative education provision. Miss X also said the Council failed to secure the special educational provision in her child’s EHC Plan. We have found the Council at fault for not keeping Z’s timetable under review, not considering its duty to provide alternative provision, and not considering its duty to secure Z’s special educational provision. We cannot say whether the Council’s faults led to Z missing education provision. However, we find the Council’s faults caused uncertainty about what would have happened, had it acted properly. The Council has agreed to apologise to Miss X and Z, and pay a symbolic financial remedy to recognise this uncertainty. There are parts of Miss X’s complaint we cannot investigate. We explain why in our statement.

The complaint

1. Miss X complained the Council:
1. failed to secure suitable education provision for her child (Z) since September 2023. Miss X said the Council failed to regularly review Z’s part-time timetable and failed to consider its duty to arrange alternative provision. She said the Council also failed to secure the special educational provision in Section F of Z’s Education, Health and Care (EHC) Plan.
2. failed to ensure Z had access to free school meals when Z could not attend school.
3. failed to communicate effectively.
2. Miss X said Z’s lack of education led to isolation, increased anxiety, and affected their overall wellbeing and educational attainment. Miss X also said it caused her significant avoidable distress and uncertainty.

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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. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. 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.
8. 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)

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What I have and have not investigated

Matters subject to appeal

9. Paragraphs 6 and 20-22 set out the Ombudsman’s jurisdiction where a right of appeal to the SEND Tribunal exists. Miss X received a right of appeal in April 2024 and appealed against Sections B, F and I of Z’s EHC Plan. I cannot consider a complaint about Z’s education provision after this point. The matters complained of are directly linked to the matters the Tribunal was asked to consider.

Time

10. Paragraph 4 sets out the Ombudsman’s approach to historic complaints. Miss X approached the Ombudsman in March 2025, so the 12-month time bar applies as of March 2024. I have exercised discretion to consider matters from September 2023 onwards. This is because events in this period are directly relevant to Miss X’s complaint. I need to consider these events to reach a view on the injustice claimed.

Free school meal entitlement

11. Government guidance, “Free school meals: guidance for local authorities, maintained schools, academies and free schools” sets out that where a child has a disability that affects their ability to eat free school meals, schools must make reasonable adjustments to help that child.
12. There are some circumstances in which the Ombudsman can consider complaints about a child’s free school meal entitlement. However, in this case, this part of Miss X’s complaint is outside the Ombudsman’s jurisdiction. School B is an academy. Academies are responsible for providing school meals, including when a child attends alternative provision, or is on a reduced timetable, while remaining on the school roll. The quality and accessibility of those meals remains a matter for the school. The restriction in paragraph 5 applies and I cannot therefore consider this part of Miss X’s complaint.

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How I considered this complaint

13. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
14. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. 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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Relevant legislation, guidance and policy

Part time timetables

16. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
17. The guidance also says a part-time timetable should:
• Not be used to manage a student’s behaviour.
• Have a clear ambition and be part of the pupil’s wider support, health care or reintegration plan.
• Have regular review dates which include the pupil and their parents to ensure it is only in place for the shortest time necessary.
• Have a proposed end date that accounts for the circumstances of the pupil, after which the pupil is expected to attend full-time, either at school or alternative provision. It can, however, be extended as part of the regular review process.
18. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Special educational provision

19. 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)

Appeal rights and the Ombudsman’s jurisdiction

20. 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)
21. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
22. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.

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What I found

Key events

23. Miss X’s child, Z, has special educational needs and an EHC Plan. The Council issued Z’s EHC Plan in 2021. This plan was in place at the time of the matters complained of.
24. Z attended School B. Miss X said Z had not been in full-time education since September 2023, being on a reduced timetable.
25. In November 2023, the Council held an annual review of Z’s EHC Plan, deciding to amend the EHC Plan. The review noted Z was on a part-time timetable and had been excluded in some instances. The notes state School B was looking to increase the timetable back to full-time after the next half-term.
26. On 4 April 2024, the Council issued an amended final EHC Plan for Z, providing Miss X with the right of appeal to the SEND Tribunal. Unhappy with the content of the plan, Miss X said she sought mediation with the Council. Miss X said she attended a mediation meeting with the Council in July 2024, reaching consensus on some areas of disagreement. However, Miss X said the Council did not implement the agreed actions after the meeting.
27. On 13 August 2024, Miss X appealed to the SEND Tribunal against sections B, F and I of Z’s EHC Plan.
28. In October 2024, there was a further review of Z’s EHC Plan. Miss X said the Council told her it would not make decisions on Z’s educational setting or need for alternative provision, as the appeal would address these matters.
29. On 28 October 2024, Miss X complained to the Council:
• Miss X complained about Z’s lack of full-time education. She said the Council was aware Z was on a reduced timetable, but had not acted. Miss X referred to the guidance, saying part-time timetables were not a long-term solution, should not be used to manage a child’s behaviour, and should be regularly reviewed.
• Miss X said Z was not receiving their free school meal entitlement, due to being unable to attend School B.
• Miss X said the Council had not secured the special educational provision in Z’s EHC Plan and had not provided suitable alternative education provision.
• Miss X wanted the Council to provide suitable provision and Z’s free school meal entitlement. Miss X also sought improved communication, an updated assessment for Z, and for the Council to better oversee part-time timetables.
30. On 25 November 2024, the Council responded to Miss X’s complaint:
• The Council said it had named School B on Z’s EHC Plan and the Tribunal would address Miss X’s concerns about Z’s education. The Council said School B should be advising Miss X about Z’s free school meal entitlement.
• The Council said School B should review Z’s part-time timetable with Miss X.
• The Council said it had assigned a new caseworker to Z and apologised for Miss X’s negative experiences at the review.
31. In December 2024, Miss X escalated her complaint. The Council issued an amended final EHC Plan.
32. On 7 January 2025, the Council responded to Miss X’s escalated complaint:
• The Council said it appreciated Miss X’s frustration. It said it had agreed added provision and would consider Miss X’s preferred setting type. The Council said School B should assist with Z’s free school meal entitlement.
• The Council explained what it would do to reassess Z’s needs as part of the appeal proceedings.
• The Council said it had reported Z’s part-time timetable to its Children Missing Education team, which monitored the use of part-time timetables.
33. In February 2025, Miss X filed a further appeal against sections B, F and I of the amended plan issued in December 2024. The Council said both appeals were consolidated and the Tribunal would consider both in September 2025.

Analysis

Did the Council act with fault?

Part-time timetable and section 19 duty

34. In its response to the Ombudsman, the Council recognised Z was on a part-time timetable from the beginning of the academic year. The Council’s records are not detailed, though Z’s part-time table is clearly mentioned in the annual review paperwork from November 2023. I consider the Council was aware of Z’s circumstances from at least this point.
35. Paragraphs 16 and 17 set out the expectations around use of part-time timetables. Despite the Council being aware Z was on a part-time timetable, I have seen no evidence the Council reviewed these arrangements, considered whether it should adjust or adapt the timetable, or considered whether its section 19 duty was engaged.
36. The Council told the Ombudsman Z’s timetable was linked to his behaviour, in that School B would seek to increase Z’s hours, only to reduce them later due to specific instances of behaviour.
37. While recognising the circumstances were complex when accounting for Z’s needs, the guidance is clear part-time timetables should not be used to manage a child’s behaviour. Regularly reviewing the arrangements in place ensures they are appropriate and part of a wider reintegration plan. It also affords the opportunity to consider the section 19 duty. Proper oversight from authorities is therefore critical to avoid drift and the misapplication of part-time timetables.
38. I have found the Council at fault for not keeping Z’s part-time timetable under review and for not considering its section 19 duty.
39. In its final complaint response, the Council said it had reported Z as being on a part-time timetable to the team that monitored such arrangements. It is unclear why the Council did not take this action sooner. I have found the Council at fault for this delayed action.

Special educational provision

40. Paragraph 19 sets out the Council’s duty to secure the special educational provision in Section F of an EHC Plan. The Council remains responsible, even if delegating daily delivery to schools. The Council told the Ombudsman Z’s provision was closely linked to Z’s attendance.
41. Beyond this, there is no evidence the Council turned its mind to whether it needed to do more to secure Z’s special educational provision. I have found the Council at fault for this.

Communication

42. Ms X alleged the Council communicated poorly, stating she usually raised concerns with School B because the Council did not regularly respond to her calls or emails.
43. I note Miss X’s assertion. I have seen no contemporaneous evidence showing Miss X’s communication with the Council in the period before Miss X’s appeal. Given this, I have not found the Council at fault for its communication.

Did the Council’s faults cause an injustice?

44. In sum, the Council did not review Z’s timetable, consider whether its section 19 duty applied, or consider how the current arrangements complied with its duty to secure Z’s special educational provision. It also failed to refer Z’s case to the appropriate team within the Council for consideration.
45. Having carefully considered the available evidence, I cannot say, even on the balance of probabilities, what the Council would have decided, had it acted properly. This is because there could have been different possible outcomes, depending on the Council’s consideration of the circumstances. For example, the Council could have decided to maintain the arrangements with a view to increasing Z’s engagement and that its section 19 duty did not apply. Alternatively, it may have decided to adjust the timetable, or introduce elements of alternative provision. The extent of any alternative provision would also likely have been dependent on decisions about Z’s capacity to engage with what was offered.
46. I cannot therefore say the Council’s faults led to clearly missed provision for Z. This causes uncertainty about what would have happened had the Council acted properly, which is in itself an injustice to Miss X and Z. The Council should act to recognise this injustice.
47. These faults, if not addressed in future, could cause injustice for others. I have addressed the Ombudsman’s view on this in paragraph 50.

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Action

48. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Miss X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
2. Pay £400 to recognise the uncertainty caused by the Council’s faults.
49. The Council should provide us with evidence it has complied with the above actions.
50. Over the last year, the Ombudsman has recommended numerous service improvements to the Council around how it manages requests for alternative provision, conducts annual reviews and secures the provision set out in EHC Plans. To avoid duplication, I have not made the same recommendations here. The Council accepted these recommendations and the Ombudsman will monitor the ongoing quality of the Council’s services through our casework.

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Decision

51. I have completed my investigation with finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman