Summary: There was no fault in the way the Council handled Ms X’s child’s special education when they could not attend mainstream school. However, the Council is at fault because it did not apologise as it said it would. It has agreed to apologise.

The complaint

1. Ms X complained the Council failed to provide her child, B’s, special educational provision when B could not attend school, and did not apologise as it said it would.
2. Ms X said B missed education which had a significant impact. She said it impacted her and B’s mental health and wellbeing. Ms X said she had to give up work to care for B and try to provide some kind of education. She said this also impacted the wider family.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care plan.
9. 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)
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
11. 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)
12. 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 Education, Health and Care (EHC) plan, we cannot investigate a lack of special educational provision or alternative educational provision.
13. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
14. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
15. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
16. 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

Time limits

17. As I have said above, we cannot investigate late complaints unless we decide there are good reasons.
18. In April 2025, Ms X complained to us about the Council’s actions since her child, B, stopped attending mainstream school in September 2023. However, the school provided alternative provision up to July 2024. Ms X’s complaint is mostly about what happened after this time.
19. Given this, I do not consider there are good reasons to exercise our discretion and look back further than September 2024.
20. I have investigated up to the end of the summer term in 2025, because B started a new placement in September 2025.

Appeal rights

21. As I have said above, if a child is not attending school and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the educational placement in the EHC plan, we cannot investigate a lack of special educational provision or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
22. In this case, the Council issued an EHC plan for Ms X’s child, B, in February 2024. This plan named B’s existing mainstream school. This gave Ms X the right to appeal. Ms X did not appeal. I consider it would have been reasonable for Ms X to use this right.
23. I do not find there are good reasons to exercise our discretion to investigate B’s special educational provision from September 2024 to March 2025.
24. The Council reviewed B’s EHC plan in March 2025. At this review, the Council agreed to amend the EHC plan and name a specialist school. This is what Ms X wanted. Therefore, I find it would not have been reasonable to expect Ms X to use this appeal right.
25. So, I find there are good reasons to exercise our discretion and investigate B’s special educational provision from March 2025 to September 2025. This is essentially the summer term of 2025.

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How I considered this complaint

26. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
27. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Special educational provision

28. 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.
29. 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).
30. 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. Children and Families Act).

Alternative provision

31. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
32. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this. It must then decide whether it has a duty to make alternative educational provision.
33. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
34. 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. 

What happened

35. In September 2023, Ms X’s child, B, stopped attending mainstream school. The school provided alternative provision.
36. In summer 2024, the school complained to the Council about funding for B’s alternative provision. The Council accepted it had communicated poorly with the school and Ms X. The Council told the school it would apologise to Ms X for the distress caused.
37. In March 2025, there was a review of B’s EHC plan. The Council agreed to amend the EHC plan to name a specialist placement. B started at the new placement in September 2025.

Analysis

Special educational provision

38. Ms X complained the Council failed to provide her child, B’s, special educational provision when B could not attend school.
39. As I have set out above, I have investigated the summer term of 2025. Ms X said B did not get any provision at all during this time.
40. I have considered what was said at the March 2025 review of B’s EHC plan. This is a summary:
• The school suggested provision on-site which Ms X said she would consider.
• The school talked about a “combination offer” to get B up to four afternoons of provision per week. It said this would focus on practical subjects and life skills “with no immediate focus on learning”. Ms X said she would think about it.
• All parties agreed it was “best to start slowly”.
41. The Council had a duty to provide B’s provision if the school could not provide it. The Council also had a duty to consider any attempts the school made to support B.
42. The Council said that after the review in March, there was alternative provision available for B on-site at the school. I agree that this is what the school said.
43. Ms X said the school provided weekly on-site provision in the summer term. Ms X said this was not sufficient.
44. As I have said above, schools can support children in a variety of ways. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure.
45. I find the Council decided the school’s alternative provision during that term was a short-term measure while the Council arranged a suitable placement for B. As there was a clear and time-bound plan for reintegration, I do not consider the Council had an immediate role to provide alternative education.
46. Ms X may not agree that the reintegration plan was efficient. However, at the March review, all parties agreed that it was best to start slowly and the school’s provision would not focus on education.
47. The Council satisfied itself that the provision available at the school during that term was suitable for B. This was a decision the Council was entitled to make. I find no fault with the way the Council made that decision, so I cannot challenge the decision itself.
48. So, B received provision during that term that was in line with what everyone agreed at the March review was best for B. I therefore do not find the Council’s duties to step in a provide B’s special educational provision or alternative provision were triggered during that time. For these reasons, I do not find fault.

Apology

49. Ms X complained the Council did not apologise as it said it would.
50. In August 2024, the Council told the school it would apologise to Ms X for any distress caused by its poor communications. In October, the Council again said it would apologise to Ms X.
51. The Council said it apologised to Ms X verbally in August and September 2025. However, it has no record of this. Without evidence, I cannot find the Council apologised as it said it would. The Council should have a record of how and when it apologised.
52. This is fault. I find this fault caused Ms X injustice because it caused unnecessary and avoidable frustration.

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Action

53. Within four weeks of this decision, the Council has agreed to apologise to Ms X in writing for the distress caused by its poor communication, and the frustration caused by failing to apologise when it said it would.
54. 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 when making this apology.
55. I am satisfied that an apology is an appropriate and proportionate remedy for the level of injustice caused.
56. The Council should provide us with evidence it has complied with the above action.

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Decision

57. I find fault causing injustice. The Council has agreed to take action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman