Summary: The Council was at fault for not ensuring that it met its commitment to ensure Mrs X’s child Y had a suitable interim educational provision in place after their placement at an alternative provision ended. It will apologise and make a symbolic payment to Mrs X to recognise the avoidable frustration and impact on Mrs X and Y caused by its fault.

The complaint

1. Mrs X complained that the Council did not provider her child, Y, with the special educational provision in their Education, Health and Care (EHC) Plan or an alternative suitable education when their placement at an educational setting ended in January 2025. She also complained about the Council’s complaint handling.
2. Mrs X said as a result Y’s wellbeing and education suffered and it also impacted her finances and mental health.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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 can and cannot investigate

8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. 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)
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. Mrs X appealed section I of Y’s EHC Plan to the Tribunal in late January 2025. The grounds for her appeal stated that the Council had not named a school, college or education provider in Y’s EHC Plan, only the type of school. I cannot investigate her complaint that the Council did not provide the special educational provision set out in section F of Y’s EHC Plan. This is because Y’s provision was dependent on them attending a school setting – the lack of which was a matter that Mrs X appealed to the Tribunal about. Therefore, as I consider it is too closely connected to her appeal, I cannot investigate it.
12. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. This is called our general discretion (Local Government Act 1974, section 24A(6), as amended, section 34(B)) The courts have said we must not overlap with matters that have or could have been raised with the tribunal (R v Local Commissioner for Administration for the North and East Area of England, ex parte Bradford MBC [1979]). Therefore, even if we had jurisdiction to investigate any part of Mrs X’s complaint that the Council failed to make the full provision specified in Y’s EHC Plan, we would not do so because it might overlap with the matter which was resolved at the Tribunal.
13. My investigation ends in July 2025 when Y’s tuition arrangement ended, before the school summer holidays and the start of their new school placement in September 2025.

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How I considered this complaint

14. I spoke to Mrs X and considered the information she provided.
15. I considered the Council’s response to our enquiries as well as relevant law, policy and guidance.
16. 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, guidance and policy

Education Health and Care Plan

17. 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:

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

18. We cannot direct changes to the sections about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
19. 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

The Council’s complaints policy

20. The Council publishes its corporate complaints policy on its website which sets out the timescales for its complaint responses:

• It will provide a stage one complaint response within 15 working days.
• It will provide a stage two complaint response within 25 working days of it accepting the complainant’s escalation request.

What happened

21. This section sets out the key events in this case and is not intended to be a detailed chronology.
22. Mrs X’s child Y is of secondary school age and has special educational needs.
23. In October 2024 the Council agreed to carry out an Education, Health and Care (EHC) needs assessment for Y. Y attended an alternative provision (Provider A) at the time after being permanently excluded from their school.
24. The Council said that Provider A was a setting that provided short term interim support to pupils who had been permanently excluded. It also said that it had a “long-standing arrangement” that if a pupil was issued with an EHC Plan while attending at Provider A, their placement there would end. It said this was because an EHC Plan would help secure a long-term school placement and ensure the places at the alternative provision remained available for students who were permanently excluded.
25. In late November 2024, during a multi-professional meeting, Mrs X said she was told that home tuition would need to be put in place for Y as an interim measure when their EHC Plan was finalised and while they waited for a place at a special school. Mrs X said the professionals in attendance raised concerns about the suitability of home tuition due to Y’s previous experience with this type of provision.
26. The Council said following the meeting its Early Help team exchanged text messages with Mrs X during which she was told that if the Council issued an EHC Plan then it would consult with Provider A, and if Provider A responded that it could not meet Y’s needs then Y would need to access interim home tuition (IHT) while waiting for a special school place.
27. In early December 2024 the Council agreed to issue an EHC Plan.
28. In late December 2024 the Council started consulting with specialist schools for Y.
29. In early January 2025 the Council:

• noted all the schools consulted were unable to offer Y a school place. It decided to consult with other schools and to search for interim home tuition (IHT) and alternative provision to secure some education for Y while it searched for a suitable school.
• issued Y’s final EHC Plan and told Mrs X that Y’s placement at Provider A would end a couple of days later. Section I of Y’s EHC Plan only specified the type of setting – “a maintained special school”. Section F of the Plan set out the special educational provision that could only be accessed in a school/classroom setting.
• contacted Provider A to request an extension to Y’s placement for a further four to six weeks.

30. Mrs X said she contacted the Council over the next week about Y’s placement at Provider A, but it did not have an update to provide. Mrs X said the Council contacted her at the end of the week to say that Provider A had refused to extend Y’s placement and that their placement had ended that day. Mrs X complained to the Council the same day about the Council’s failure to provide Y with an education and the special educational provision in section F of their EHC Plan. Mrs X also appealed to the Tribunal.
31. In late January the Council started a further search for two to one IHT as its first search did not result in any responses. Mrs X also contacted the Council to share the impact of Y being out of school on their wellbeing. The Council told Mrs X about online learning which she said would not be suitable for Y’s needs. It then offered Mrs X worksheets for Y to complete.
32. In late January two independent schools said they felt they could meet Y’s needs and offered Mrs X a visit. Mrs X visited one school and decided it was not suitable for Y’s needs.
33. In early February the Council issued a stage one complaint response. The Council said:

• Provider A said it was unable to meet Y’s needs and extend their placement.
• it had undertaken a further two to one IHT search.
• that it had not provided the expected standard of service because it had not secured a specialist placement for Y, leaving them without an education. It apologised for this. However, it was “satisfied that there had been sufficient actions taken by the service to attempt to secure a suitable education” for Y.

34. Mrs X was unhappy with the Council’s response and escalated her complaint. She said that Y had been out of school for four weeks without any education and that the Council had not arranged the IHT it said it would.
35. In March 2025 the Council arranged for a tutor to start working with Y. The Council said this arrangement was for three sessions for a total of 10 hours per week. The Council said Y struggled to engage consistently with their tutor over the month when they attended. The Council said that this tutor also cancelled Y’s appointments towards the end of March and then gave notice due to the perceived risk to them. Mrs X said the tutor was unreliable. She said they cancelled appointments. They also rescheduled an appointment to hold them online rather than in person when they were unwell. Mrs X said this was unhelpful for Y who required consistency to properly engage with the sessions.
36. In late April the Council issued a stage two complaint response. The Council said:

• It was sorry for its delayed response.
• Its case records showed that Mrs X was made aware that Provider A was a short-term placement during a phone call with Y’s case worker in October 2024. It said its Early Help team also made Mrs X aware in November 2024 of the possibility of Y’s placement ending when the Council issued their EHC Plan.
• Provider A was not a school. Its longstanding arrangement with Provider A was that it would “look to give notice” on the placement if a pupil was issued with an EHC Plan, because the Plan would secure a long-term placement for pupils. This was also to ensure that Provider A was available for students who were permanently excluded. However, the significant demand for limited special school placements meant pupils needed to access IHT as a “stopgap” provision until a long-term placement was secured. It told Mrs X it would review its operational process regarding placements at Provider A to prevent a recurrence of the same situation.
• While Mrs X was aware that Y may need to access IHT upon issue of their EHC Plan, it accepted that “proactive planning for this event was not initiated meaning that when the EHC Plan was finalised in early January, an alternative education [for Y] was not in place.” It apologised for this.
• It took into consideration professionals’ concerns of the possible risks that IHT may bring, and it liaised with Provider A to extend Y’s placement until a long-term placement was secured but this request was refused. Instead, Provider A agreed to extend Y’s placement by one week.
• Its initial IHT referral did not result in a response. A provider responded to its further search in mid-February 2025 advising that they could deliver IHT sessions. It said that its records showed that only two sessions had been delivered in March 2025. The IHT provider told the Council it needed to secure a second tutor for Y as they felt two to one support was necessary.
• It looked for tutors and alternative providers unsuccessfully. It acknowledged that Y had been without any education since their placement at Provider A came to an end in mid-January 2025. It apologised for this.

37. By the end April 2025 the Council found a new tutor for Y.
38. In early May 2025 Y started sessions with their new tutor. They received three one to one sessions per week (totalling 10 hours) from early May to July 2025 when the arrangement ended. The Council told us that the key to Y engaging in this arrangement was their relationship with their new tutor.
39. The Council said its offer for pupils was to start with eight to 10 hours of one to one tutoring per week, split over three to five days. The hours of tuition were increased when there was evidence of the pupil engaging effectively and consistently while accounting for the high intensity nature of the one to one tuition as well as the pupil’s needs. The Council said Y’s attendance and engagement when they attended Provider A was low and they struggled to engage with their first tutor in March.
40. In May 2025 the Council issued an amended EHC Plan naming a specialist school in section I of the Plan. Mrs X agreed with this placement and in August 2025 the Tribunal issued a consent order in relation to their section I appeal. Y started at their new school in September 2025.

Findings

“Stopgap” educational provision for Y

41. Mrs X appealed to the Tribunal about sections F and I of Y’s EHC Plan, I therefore cannot investigate these matters. I have investigated whether the Council was at fault when it failed to provide “stopgap” education provision
42. The Council was aware of its longstanding arrangement with Provider A to end placements upon issue of EHC Plans. It also discussed IHT/alternative stopgap educational provision for Y in a multiprofessional meeting with Mrs X present, while Y’s needs assessment was underway. This demonstrates it was aware of the consequences and had committed to providing Y with a stopgap education. It should have taken steps from October 2024 when it decided to assess Y for an EHC Plan to ensure that Y had an alternative “stopgap” education in place for when their final EHC Plan was issued in early January 2025 because that would cause their placement at Provider A to end. It did not do so which was fault. The Council has already accepted this fault in its stage two complaint response. But it failed to consider the impact on Y of not receiving the stopgap provision it had committed to provide for them and the distress to Mrs X and Y of its last-minute notification that the placement at Provider A had ended.
43. From May 2025, the Council ensured Y was provided with 10 hours of stopgap education provision in the form of one-to-one IHT. Government guidance has confirmed that one-to-one provision is more concentrated than that a child might receive in a classroom. As the Council decided 10 hours was a suitable amount for Y as interim provision, we cannot criticise its decision. Y engaged with this tuition from May to July. Therefore, if the Council had proactively planned the stopgap education to start in January when it issued Y’s EHC Plan, on the balance of probabilities I conclude Y would have been able to engage and benefit from that tuition significantly sooner and from January to the end of April.

Complaint handling

44. Mrs X said the Council’s stage two response was due by the second week of April 2025 but did not arrive until late April 2025. The Council apologised for this short delay which was an appropriate remedy for the avoidable frustration Mrs X was caused.

Service improvements

45. We recently recommended the Council make service improvements on a similar matter on a separate complaint. Therefore, I have not repeated these as we will continue to monitor this through our case work.

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Agreed action

46. Within one month of this decision the Council will apologise and pay Mrs X £1000 to recognise the impact of Y not receiving the stopgap education the Council had committed to provide when their placement at Provider A ended. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
47. Within one month of this decision the Council will provide a copy of the review it undertook in light of Mrs X’s complaint, of its operational processes regarding placements at Provider A for pupils who are issued an Education, Health and Care Plan.
48. The Council will provide us with evidence it has complied with the above actions.

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Decision

49. I found fault causing injustice and the Council agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman