Summary: Miss X complained about the Council’s failure to provide her son Y with a place in a special school after she moved to the Council’s area. We found no fault with the Council in the period we investigated.

The complaint

1. Miss X complains about the Council’s failure to provide her son (Y) with a place in a special school to secure the specialist provision set out in Y’s Education, Health and Care (EHC) Plan after she moved to the Council’s area. As a result, his education and welfare, and the welfare of other family members, have suffered.

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The Ombudsman’s role and powers

2. 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)
3. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), 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. 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)
6. 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.
7. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. 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)
10. 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

11. As explained in paragraph four of this decision we would normally investigate events which happened within 12 months from when the complainant came to us. Miss X came to us in March 2025. I cannot see any good reasons to extend my investigation beyond March 2024 as, if Miss X was unhappy about the Council’s services before March 2024, she could have complained to us at the time.
12. I did not investigate whether the Council complied with its Section 19 duties and delivered special educational provision included in Y’s EHC Plan from mid-September 2024. Mrs X appealed Section I of Y’s EHC Plan issued in mid-September 2024, as she did not agree with the Council that Y’s school could meet his needs. As explained in paragraphs five to seven, because delivery of education and special educational provision was closely linked to the appeal, we would not investigate these issues during the appeal from the date when the Council issued Y’s final EHC Plan.

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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 received before making a final decision.

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What I found

Law and guidance

Delivery of special educational provision

15. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
16. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Alternative provision

17. 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.
18. 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)
19. The law does not define full-time education but children with health needs 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. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Part-time timetable

20. 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. 
21. Schools should tell 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.

What happened

22. This section is not a full account of everything that happened but an outline of events which are relevant to this decision.
23. Y is autistic and has had an EHC Plan since July 2023. The special educational provision included in Y’s EHC Plan could not be separated from the delivery of his education. Due to his communication and language difficulties Y needed a specialist communication system.
24. In mid-November 2023 Miss X moved to the Council’s area. From January 2024 the Council arranged and funded two hours per day of individual tutoring for Y. The tutoring was delivered by a qualified teacher who was using the communication system named in Y’s EHC Plan.
25. In March 2024 the Council offered a place for Y in a local primary academy (School 1). Y started attending School 1 in mid-April 2024.
26. School 1 arranged a part-time timetable for Y. He attended two to three hours per day with individual support.
27. In mid-July 2024 the Annual Review meeting for Y took place. It noted that Y was happy to get dressed and come to school however he had been attending part-time since the beginning of placement and Miss X wanted a specialist setting for him. The Council had consulted the special school of Miss X’s preference (School 2) but it declined to offer Y a place.
28. Following the Annual Review of Y’s EHC Plan the Council decided to amend the plan. In mid-September 2024 the Council issued Y’s final EHC Plan with School 1 named in Section I.
29. At the beginning of November Miss X appealed Section I of Y’s EHC Plan, asking for School 2 for Y. During the appeal the Council agreed to name School 2 for Y from September 2025. In September 2025 the Tribunal proceedings ended.

Analysis

30. Councils’ duties to ensure that children of compulsory school age receive education are described in paragraphs 17 to 19 of this decision. For the children with EHC Plans councils also have a duty to ensure that they receive the special educational provision included in Section F of their EHC Plans.

Y’s education from March to mid-April 2024

31. Y moved to the Council’s area during the school year 2023/2024. Before the Council found a place at School 1 for Y, it had arranged individual tutoring for him for ten hours a week. This is what we would expect.
32. Tutoring was delivered by a qualified teacher who used the communication system needed by Y. I have seen no evidence Y could access more education as his engagement with the sessions offered was variable.
33. I did not find fault with the Council for the way it met its alternative provision duty and duty to deliver special educational provision included in Y’s EHC Plan before Y started attending School 1.

Y’s education from mid-April to mid-September 2024

34. From mid-Apil 2024 Y started attending a mainstream school. Miss X considered he needed a special school and asked for School 2 for him. The Council consulted School 2 for a place for Y but it did not offer a place. As parents can appeal the school placement named in their child’s EHC Plan to the SEND Tribunal, we would not normally look at the suitability of a school, which the Council named for a child with an EHC Plan.
35. Due to the time Y had not attended school, as well as his age and difficulties stemming from his autism, School 1 arranged a part-time timetable for him. Y received individual support at School 1. Notes of his Annual Review meeting at the end of July 2024 record some progress. When providing education to Y staff at School 1 was using strategies included in his EHC Plan.
36. There was no fault in the way the Council discharged its educational duties for Y between mid-April and mid-September 2024. This was just over a term of school education, in which arranging a part-time timetable at School 1 was legitimate to support Y’s needs. For the reasons explained in paragraph 12 of this decision, I did not investigate anything that happened after mid-September 2024.

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Decision

37. I find no fault.

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Investigator's decision on behalf of the Ombudsman