Summary: The Council was at fault in failing to provide Mrs X’s child, Y, with alternative education provision during the 2024/25 school year. As a result, Y missed out on education for a full academic year. The Council was also at fault in its handling of Mrs X’s complaint, which caused her frustration and time and trouble. The Council has agreed payments to remedy the injustice caused by its faults.

The complaint

1. Mrs X complained that her child, Y, has been out of school since July 2023. She complained that the Council did not secure a new educational placement for Y and did not offer any alternative provision until she made a formal complaint in early 2025. She said the alternative provision the Council offered did not meet Y’s needs as set out in the Education, Health and Care (EHC) Plan.
2. Mrs X said that, as a result of the Council’s faults, she has suffered uncertainty and frustration whilst waiting for an outcome, and Y has been without access to a suitable education.
3. Mrs X would like the Council to provide a remedy for the lengthy gap in Y’s education and the impact of this on Y’s future career options.

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The Ombudsman’s role and powers

4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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

Late complaints

9. Mrs X complained to us in April 2025 that Y had been out of school since July 2023. The part of her complaint that relates to events before April 2024 is late. We cannot investigate late complaints unless we decide there are good reasons. There is no evidence she could not have complained to us sooner and there are no good reasons why we should consider investigating the period before April 2024, which was a year before she complained to us.

Appeal rights

10. There is a right of appeal to the Tribunal against a council’s 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 in their EHC Plan.

How 26(6)(a) applies when appeal rights have been engaged and relevant caselaw

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 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. 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.
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.

How the law applies in this case

15. In July 2023, an incident occurred at Y’s school that led to Mrs X withdrawing Y from the school. Also in July, the Council issued a final (amended) EHC Plan for Y that named the school Y was no longer attending. The Council advised Mrs X of her right to appeal the final (amended) Plan. I consider it would have been reasonable for her to have done so.
16. This means that her complaint about Y’s provision and placement between when the appeal right arose in July 2023, and when the next final (amended) Plan should have been issued in July 2024 (and the next appeal right should have arisen), falls outside our jurisdiction by virtue of section 26(6)(a) of the Local Government Act 1974 as set out in paragraphs 11 to 14.

What I have investigated

17. I have therefore investigated Mrs X’s complaints about events that occurred between April 2024 and when she approached us in April 2025, except where events between April and July 2024 relate to the final (amended) EHC Plan that she could have appealed.

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How I considered this complaint

18. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I discussed Mrs X’s complaint with her on the telephone.
19. 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

Law, policy and guidance

EHC Plan 

20. 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. 

Maintaining the EHC Plan

21. 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)  
22. 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. 

Reviewing EHC Plans

23. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
24. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Section 19 duty

25. 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.
26. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

27. This section sets out the key events in this case and is not intended to be a detailed chronology. Events that occurred before April 2024 are included for background only.

Events before April 2024 that I have not investigated

28. In July 2023, an incident occurred at Y’s school that led to Mrs X withdrawing Y from the school.
29. Also in July, the Council issued a final (amended) EHC Plan for Y that named the school Y was no longer attending. Mrs X did not appeal the final (amended) Plan.
30. In September, the Council’s Placement and Provision Panel considered a request from Y’s school to consider an alternative placement for Y. The Council’s referral letter to the Panel meeting said that Y had “been accessing an adapted curriculum plan with reduced hours (3 days per week)” since July 2023.
31. The Panel approved the request for a change of placement and asked the Council to begin consulting with appropriate school settings.
32. The Council consulted several settings and, in February 2024, offered Y a placement. Mrs X refused this on the grounds that it was too far away. The Council continued to consult with other settings.

Events from April 2024 that I have investigated

33. In mid-May, Y’s school wrote to the Council to say that it would end Y’s placement at the end of the academic year in July. The letter did not say that Y had not attended school all year. The Council received this letter in mid-June.
34. The Council continued to consult with other settings. The settings responded that they either could not meet Y’s needs or they had no spaces available.
35. The Council carried out an annual review meeting in mid-July and issued a decision to amend Y’s Plan in mid-August. The draft (amended) Plan included the school that had ended Y’s placement as the proposed setting.
36. Mrs X said that she responded to this draft asking the Council to name a different school. The Council was unable to secure this placement and did not issue a final (amended) Plan.
37. In January 2025, Mrs X complained to the Council. She said that Y had been out of school since July 2023, the Council had been unable to source a suitable new school placement, and it had not kept her informed of consultation responses.
38. The Council responded in late January, at stage 1 of the Council’s complaints process. It said that 18 consultations had been sent to schools. It upheld Mrs X’s complaint that she had not been kept updated about these by her caseworker. The Council also upheld Mrs X’s complaint that it had not contacted her to discuss tutoring for Y whilst a school place was being sought. The Council apologised for its faults and said it could offer in-person or online tutoring if Mrs X contacted the Council to discuss those options.
39. The next day, Mrs X asked the Council to escalate her complaint to the next stage of its process.
40. The Council responded at stage 2 in mid-April. It acknowledged there had been a delay in arranging a new school place and/or alternative provision for Y since September 2024. It apologised for these faults and said it would:
• undertake a ‘lessons learnt review’ to identify what went wrong in this case and to ensure that similar failings do not occur in future;
• discuss and agree a bespoke package of interim education that could be implemented immediately, pending confirmation of a new placement;
• explore compensatory educational support or other measures to address the period of missed education; and
• be clear about the next steps in the placement search, including timelines and any further consultations with settings.
41. In July, Y started attending an EOTAS (Education Otherwise Than At School) Hub for 2 hours a day, 2 days a week. In September this was increased to 15 hours per week.

Analysis

42. I have considered events from April 2024 onwards. At that time, the Council was consulting settings for a change of placement for Y.
43. In June 2024, the Council became aware that the placement named in Y’s EHC Plan would end at the end of the 2023/24 academic year. The Council decided to carry out an annual review, as this was due in any case. However, the Council did not issue a final (amended) EHC Plan at the end of the review process. This was fault, that denied Mrs X her right to appeal the content of Y’s Plan. It also caused Mrs X uncertainty over what SEN provision Y was entitled to. In the absence of an amended EHC Plan the 2023 Plan remained in place but with no placement to deliver Y’s SEN provision.
44. In the absence of a finalised EHC Plan, and a school placement for Y, the Council had a duty to arrange alternative educational provision for Y from September 2024. Y did not commence EOTAS until July 2025, a full academic year later. This was fault. As a result, Y missed out on three terms of education. The Council acknowledged this fault in its stage 2 complaint response and apologised.
45. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
46. Considering Y:
• had no educational provision at all between September 2024 and July 2025, and
• is now in year 10 and so there is not enough time for additional provision to remedy their lost education,

I have recommended £6000 for the three terms of missed educational provision, in line with our Guidance on Remedies.

47. The Council was at fault in its handling of Mrs X’s complaint. It sent a stage 2 response nearly two months later than the timescale of 20 working days set out in its published complaints process. It did not acknowledge the delay. This was fault, that caused Mrs X the injustice of continuing uncertainty.
48. The Council was also at fault in that it was unable to provide me with the outcome of its proposed “lessons learnt review” during my investigation, and had to re-do this piece of work. This caused uncertainty to Mrs X, as she did not receive the Council’s promised reassurance that other families would not suffer similarly in future.

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Action

49. Within one month of my final decision, the Council has agreed to:
1. Pay Mrs X £500 to recognise the impact of the frustration, uncertainty, time and trouble in pursuing her complaint, and the loss of appeal rights;
2. Pay Mrs X £6000, for Y’s benefit, for the injustice caused by the absence of educational provision during the 2024/25 academic year; and
3. Share with Mrs X the outcome of the “lessons learnt review” it has now conducted.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. 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