• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Action
• Decision

The Ombudsman's final decision:

Summary: The Council failed to ensure Mrs X’s child, Y received an education or the specialist provision in their Education, Health and Care Plan between September 2024 and April 2025. The Council agreed to apologise and make a payment to acknowledge the injustice this caused.

The complaint

1. Mrs X complained the Council delayed completing her child, Y’s Education, Health and Care (EHC) needs assessment which caused a delay in issuing the final EHC Plan. She also complained Y did not receive suitable full time education since leaving primary school in July 2024 as they were not allowed to attend the school named in the EHC Plan due to a lack of funding.
2. Mrs X says the matter has impacted on Y’s education and social development and has caused her 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. 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)
5. 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

6. 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)
7. Part of Mrs X’s complaint was about the delay in completing Y’s EHC needs assessment and the subsequent delay in issuing the final EHC Plan. Following Mrs X’s request the Council agreed to assess Y in July 2023 which meant it should have decided whether to issue Y’s EHC Plan by October 2023 and then issued a final Plan by November 2023. Mrs X would have been aware by the end of 2023 that the process was delayed. However, she did not complain to us about it until March 2025. So, Mrs X’s complaint about the EHC needs assessment delays are late as it was reasonable for her to have complained about this much earlier.
8. I have therefore investigated events from September 2024 after the final Plan was issued and Y had transitioned to secondary school.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. 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

Relevant law and guidance

EHC Plans

11. 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.
12. 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)
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
  • quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Alternative provision and the Section 19 duty

14. 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.
15. 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

16. Mrs X has a child Y who has special educational needs with a diagnosis of autism. Y was due to begin secondary education in September 2024. Prior to this Y attended a mainstream primary school but finished year six on a reduced timetable after struggling to attend.
17. Following an EHC needs assessment the Council issued Y’s first EHC Plan in early September 2024. The Plan named a mainstream secondary school, School B as Y’s placement. Records show School B had told the Council it was unable to meet Y’s needs when it consulted with it during the assessment process. The Council said it named School B in the Plan due to the absence of anything else more suitable.
18. Section F of the EHC Plan outlined the specialist provision Y was entitled to which included:
    • Individual and small group teaching throughout the day
    • Support from a teaching assistant in class
    • 30 mins per week small group work
    • Adult support around their anxiety
    • 2 x 30 mins emotional literacy and self esteem work
19. Mrs X complained to the Council at the end of September. She said Y was not attending School B because it was refusing to accept them as it could not meet their needs.
20. Email records show Mrs X contacted the Council again in October about finding an alternative school. She said School B have not contacted her or provided any work for Y. The records indicate the Council was taking alternative options to its SEN panel and Mrs X had visited schools at the Council’s request.
21. The Council responded to Mrs X’s complaint. It told Mrs X it was working to find a resolution to Y’s situation and would release extra funding to School B to help support Y. The Council said it would contact School B to find out how it was planning to provide support for Y.
22. Mrs X contacted the Council again in March 2025 stating Y was still not receiving any education. At this point the Council’s Wellbeing Team became involved and the Council found Y a place at a specialist placement, School C which they started attending in April 2025. The Council subsequently issued an amended EHC Plan naming School C.
23. Mrs X remained unhappy and complained to us

The Council’s response to us

24. The Council said it named School B in Y’s EHC Plan because nothing else was available and suitable at the time. It said it did not have a request from School B for any support and only became aware Y was not attending in March 2025. Following this it found Y a place at School C from April 2025 onwards and subsequently amended their Plan.
25. The Council accepted that it knew School B could not meet Y’s needs and should have ensured it was appropriately supporting Y from September 2024 onwards The Council accepted Y did not receive an education and there was delay securing an appropriate provision between September 2024 and April 2025.
26. The Council said since Y started attending School C their attendance is at 97% and Y is stated to be thriving and engaging well.

My findings

27. The Council has accepted it named School B in Y’s EHC Plan despite knowing it could not meet their needs. While this decision came with appeal rights to the SEND tribunal the evidence shows the Council was actively looking for alternative placements. This included telling Mrs X it was taking matters to the SEN panel and asking Mrs X to visit placements. Therefore, it was not reasonable for Mrs X to appeal the Plan.
28. The Council said it only became aware Y was not attending School B in March 2025. However, Mrs X’s complaint in September 2024 made it clear Y was unable to attend School B. The subsequent responses and also email correspondence all show the Council acknowledged Mrs X’s concerns and said it would follow up with School B in how it was supporting Y. There is no evidence the Council considered its Section 19 duty at this point or whether it deemed it necessary to put alternative provision in place. That was fault.
29. The Council has accepted that it failed to provide sufficient oversight of Y’s placement at School B and failed to secure the provision in their EHC Plan between September 2024 and April 2025. That was fault and meant Y had no education or access to the specialist provision in the Plan for two terms. Had the Council carried out oversight earlier it is likely it would have secured Y’s placement at School C much earlier where they are now thriving.
30. The Council currently has an ongoing SEND improvement action plan which we monitor on a regular basis. The action plan includes improving its consideration of Section 19 and alternative provision arrangements. It also includes improving its quality assurance of EHC Plans and the provision within them. The Council has also carried out recent training and staff reminders about ensuring children and young people are receiving the provision set out in EHC Plans. Given this, I have not made further service improvements, and we will continue to monitor the Council’s improvement plan through our casework.

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Action

31. Within one month of the final decision the Council agreed to apologise to Mrs X and pay her a total of £4200 to acknowledge Y’s loss of education and the specialist provision in their EHC Plan between September 2024 and April 2025. It also recognises the distress and uncertainty caused to her during this period. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice and the Council agreed to my recommendation to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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