• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Action
• Decision

The Ombudsman's final decision:

Summary: Mrs X complained the Council has failed to follow the Tribunal order and has not provided her son with an appropriate full time education or the provision set out in his Education, Health and Care (EHC) Plan. We found the Council’s delays in providing tuition and failure to ensure Mrs X’s son received the provision in his EHC Plan is fault. As is the failure to identify a suitable special school. This fault has meant Y has missed out on educational provision and has caused Mrs X distress and uncertainty. The Council should take action to remedy this injustice.

The complaint

1. Mrs X complained the Council has failed to follow the Special Educational Needs and Disability (SEND) Tribunal order and has not provided her son with an appropriate full time education or the provision set out in his EHC Plan.
2. She complains the Council has:
   • repeatedly failed to ensure her son receives home tuition;
   • failed to provide the speech and language therapy (SALT) provision set out in his EHC Plan; and
   • failed to identify a suitable special school

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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 Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs 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

Education, Health and Care (EHC) Plan

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. 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 council can do this.
10. 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)  
11. There is a right of appeal to the Tribunal against a number of decisions including the 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;
12. Once a Tribunal has issued a decision the council must carry out the order within a fixed period.

Alternative provision

13. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
14. 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))
15. 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)

What happened here

16. Mrs X’s son, Y has an EHC Plan. In February 2024 the Plan was amended and named a mainstream secondary school from September 2024. Mrs X appealed to the SEND Tribunal and the Council conceded Y needed a special school.
17. The Tribunal issued an order on 4 September 2024 requiring the Council to:
    • Amend Y’s EHC Plan to read: Type of school - A Special School;
    • Immediately chase a consultation response from School 1, the request to include an immediate place, a place during the academic year or a place in September 2025;
    • Consult with all appropriate schools that are within a reasonable distance from Y’s home;
    • Commission a tuition package to start immediately and to last until such time as Y has a special school place identified;
    • Appoint a named SEN officer to oversee Y’s case.
18. The Council’s records show School 1 told the Council in June 2024 that it could potentially meet Y’s needs but would first need to arrange taster sessions. If these sessions were a success it would then arrange a 12 week assessment period with a view to offering a permanent placement. As School 1 is an independent school it charged fees for both the taster sessions and the assessment phase as well as a permanent placement. School 1 chased the Council for an update on its offer in September 2024.
19. Mrs X also contacted the Council on 24 September 2024 seeking an update. The Council confirmed it would contact the tuition service to arrange interim tuition. Once the Council received an offer for tuition, they would refer it to its SEND Panel for approval.
20. The Council also confirmed it would issue a final amended EHC Plan the following day. It told Mrs X School 1 wanted to arrange taster sessions and it would also refer this request to its SEND Panel to consider funding. The Council said Mrs X would receive an update by 4 October 2024. Mrs X chased the Council on 14 October 2024 as she had not received an update.
21. The SEND Panel met on 8 October 2024 and declined to fund the taster session at School 1. It noted the Tribunal had only ordered the Council to chase a response to the consultation it had not ordered it to fund a taster session.
22. The Council sent consultations to four other schools in mid-October 2024. These schools all declined to offer Y a place.
23. The SEND Panel then met again on 29 October 2024 to consider the tuition referral. The Panel approved 10 hours tuition per week for an eight week period. Although not approved until 29 October 2024, the tuition actually began on 14 October 2024.
24. The Council told the tuition service the Panel would review funding at regular intervals. In December 2024 the tuition service told the Council Y had 30 hours of funding remaining and asked whether the Council would extend this. We have not received a record of the Council’s reply or a Panel decision but tuition continued until February 2025.
25. Y’s EHC Plan includes SALT provision. In late December 2024 the schools therapy service wrote to Mrs X advising that as Y was now home schooled he would be discharged from its service.
26. On 28 February 2025 Mrs X made a formal complaint to the Council. She complained:
    • they had not been told of a change in allocated case officer;
    • tuition is renewed on a half termly basis and is always left until the last minute. Tuition had not been renewed following the February half term so Y was not receiving any education.
    • the Council had not provided details of any further schools consulted;
    • Y should receive direct contact with SALT as part of his EHC Plan but has been discharged from the service.
27. Mrs X asked for an interim review of Y’s EHC Plan as she did not consider it fit for purpose. She said the provisions, strategies and interventions were not occurring. Mrs X also asked whether the Council’s records showed Y was home schooled, and if this was the case for the records to be corrected.
28. The Council responded on 18 March 2025 and apologised for the lack of communication reading the changes in case officers. It said staff shortages and transitions within the team had led to delays in updating parents. The Council confirmed Y’s new case officer would contact Mrs X by 28 March 2025.
29. The Council acknowledged the renewal of Y’s tuition had not been handled in a timely manner and this would have caused Mrs X additional stress. It said the new case officer would track renewal dates and ensure continuity of provision. The officer would inform Mrs X of the next Panel meeting and the outcome.
30. In addition the new case officer would review the school consultations and discuss the next steps with Mrs X. They would also arrange an interim review of Y’s EHC plan.
31. The Council confirmed the SALT team had incorrectly classified Y as home-schooled and should not have discharged him. It would contact the SALT team to clarify this.
32. As Mrs X was not satisfied by the Council’s response or her initial contact with the new case officer, she asked the Council to consider her complaint further. Mrs X also told the Council she was now paying the tuition service privately, which was causing financial hardship, and she would look to recover the cost from the Council.
33. In its further response the Council confirmed Y’s case was presented to the SEND Panel on 15 April 2025. The Panel agreed to reinstate Y’s tuition for 15 hours per week for the remainder of the academic year. This tuition resumed on 22 April 2025.
34. The Panel had also considered a SALT package and the Council was awaiting a quotation from providers which it would then take back to the Panel for approval.
35. The Council confirmed it was exploring suitable placements for September 2025 and was reconsulting previous settings.
36. Mrs X remains dissatisfied and has asked the Ombudsman to investigate her concerns. Mrs X says the Council’s failings are having a detrimental impact on Y’s and her own mental health and well-being. Y is falling behind in his education and suffering socially and emotionally as he has been out of school, away from friends and peers since July 2024. Mrs X also has a number of medical conditions which have been exacerbated by the stress the situation has caused.
37. In response to my enquiries the Council acknowledges there were delays in both the initial arrangement of tuition in September 2024 and in ensuring continuity after each half term. It says these delays were caused by a combination of operational, procedural and staffing factors.
38. The Council says it initially determined a package of 10 hours per week was appropriate based on its consideration of:
    • Y’s identified needs and profile;
    • The educational outcomes and provisions in Y’s EHC Plan;
    • Practical considerations, including that Y had been out of formal education for an extended period and gradual reintroduction to structured learning was appropriate.
39. It says the Panel approved the package with the understanding that it would be monitored and adjusted based on Y’s engagement and progress.
40. The Panel reassessed the tuition package and agreed an increase to 15 hours a week in April 2025. The Council says this decision was based on feedback from Mrs X and the tuition provider, and the need to ensure Y received a more robust educational offer.
41. The Council also acknowledges there were delays in securing a suitable special school despite early efforts following the SEND Tribunal. The Council expanded its consultations to a further 10 schools in June 2025. All of the schools declined the placement. The Council says it has continued to fund tuition while placement efforts are ongoing.
42. In addition the Council said it did not pursue the offer of taster sessions with School 1 as its policy is not to fund taster sessions or assessments at independent settings. The SEND Panel confirmed this position and declined to fund the taster sessions. It says this decision was based on the principle of equitable use of public funds and the need to apply consistent criteria across all independent placements.
43. The Council also noted it has no statutory obligation to consult or engage with independent schools which are not approved under section 41 of the Children and Families Act 2014. School 1 is not listed on the register of approved schools in England and Wales.
44. The Council says it deemed funding exploratory activities at a costly independent school, where there was no confirmed offer of a placement, an inefficient use of public funds. And that it did not align with its best value duty.
45. To remedy Mrs X’s complaint the Council has offered to:
    • Reimburse the £660 Mrs X paid for private tuition in March and April 2025;
    • Pay £100 to acknowledge the disruption caused by the delays and interruption to tuition.
46. The Council says it will also review its internal processes for:
    • Tuition renewal and SEND Panel scheduling and
    • Communication protocols with families during placement searches.

Analysis

47. The SEND Tribunal required the Council to commission a tuition package to start immediately and to continue until it identified a special school place for Y. The Council’s failure to comply with this order with delays in arranging tuition and in the continuity of the provision is fault. As was the Council’s failure to ensure Y received the SALT provision set out in his EHC Plan.
48. Y received no educational provision for around five weeks at the start of the Autumn school term or for a week at the end of February 2025. He also missed out on a fuller education in March and April 2025. Mrs X arranged for private tuition of four hours a week during this period which will have mitigated the impact on Y. But this is less than half of the 10 hours per week the Council had determined Y should receive.
49. Government guidance is clear that all children of compulsory school age are entitled to a full-time education. Full time education is not defined, but it is generally accepted to be between 22 and 25 hours a week depending on the age of the child. However, if the tuition is one to one, fewer hours may be appropriate given the increased intensity of the learning. The level of provision should be kept under review.
50. The Council increased Y’s provision to 15 hours tuition a week from 22 April 2025. This appears to be the first point at which the Council reviewed the level of tuition and was in response to Mrs X’s concerns. We would have expected the Council to review the level of provision sooner and on a regular basis to ensure Y received a suitable full time education. It is possible that had it done so the level of tuition would have increased sooner.
51. In addition Y was wrongly discharged for the schools SALT service in December 2024, and the Council’s records show it did not contact private SALT providers until May 2025. This meant did not receive any of the SALT provision set out in his EHC Plan for a full school year.
52. These failings caused Y a significant injustice.
53. The Council has also failed to identify a suitable special school place for Y. It is clear the Council has attempted to identify a school. The Council consulted four special schools in October 2024 and a further 10 schools in late June and early July 2025. The schools declined to offer a place for a variety of reasons, including a lack of capacity and an inability to meet Y’s needs.
54. The failure to identify a suitable school for Y is fault as a result of service failure.
55. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault.
56. The Council has offered to reimburse Mrs X for the cost of the private tuition and pay £100. I do not consider this to be sufficient to remedy the injustice caused to Y and Mrs X.
57. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment of between £900 to £2,400 per term to acknowledge the education they have missed and help them to catch up. In determining an appropriate level we will take account of factors such as:
    • The severity of the child’s SEN 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 child’s school career, for example the first year of compulsory education the transfer to secondary school or the period preparing for public exams.
58. We will also consider the injustice caused by other missed provisions such as SALT.
59. This was a significant period for Y who was due to transfer to secondary school in September 2024. Given his age, the stage of his education, and the education he received, I consider a payment of £1000 for the failure to provide the equivalent of a full-time education and the SALT provision would be appropriate. This should be in addition to the reimbursement of the private tuition costs.
60. The Council should also make a symbolic payment to Mrs X to recognise the frustration, distress and uncertainty she has experienced and the time and trouble she has been put to by the faults identified.

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Action

61. The Council has agreed to:
    • apologise to Mrs X and Y for the frustration, distress and uncertainty the faults identified have caused. 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.
    • pay Mrs X £1000 in recognition of the education and SEN provision Y has missed. Mrs X should use this for Y’s educational benefit as she sees fit.
    • reimburse Mrs X £660 for the cost of private tuition incurred in March and April 2025;
    • pay Mrs X £250 to recognise the frustration, distress and uncertainty the Council’s actions have caused her.
    • Review its internal processes for
      1. tuition renewal and SEND Panel scheduling and
      2. communication protocols with families during placement searches.
62. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

63. 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

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