Summary: We found fault by the Council on Mrs Y’s complaint about the way it dealt with her son’s Education, Health and Care plan. It failed to state he needed a specialist setting in his plan, despite agreeing he needed it. It delayed providing him with the setting, failed to properly monitor provision under his plan, or show it properly considered its duty to provide alternative education. There were communication problems and delays with consultations. In addition to action already taken, and a payment of £6,750, the Council agreed to send a written apology for the identified failings and pay a further £850 for the injustice caused.

The complaint

1. Mrs Y complains about the Council:
1. failing to find her son, Z, a suitable specialist placement following a placement panel meeting in April 2024 which agreed he needed one;
2. wrongly naming his current mainstream school in his Education, Health and Care (EHC) plan instead of an agreed specialist placement;
3. delaying consultation with possible suitable placements for him;
4. failing to ensure he received provision set out in his EHC plan;
5. not communicating properly with her about the review of her son’s EHC plan;
6. not attending an emergency annual review it arranged; and
7. failing to re-arrange the emergency annual review despite agreeing to do so.
2. As a result, her son missed 13 months of provision, remains in an unsuitable setting, all of which has cost her and her family financially, as well as causing her a great deal of stress.

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The Ombudsman’s role and powers

3. 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)
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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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. 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)
6. 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.
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 have and have not investigated

8. I decided to investigate complaint b) despite her having a right to appeal it. This is because the law usually says it would be out of our jurisdiction because she had a right to appeal its decision not to name a special school to a Tribunal.
9. We have discretion to investigate where there are good reasons to do so. I am satisfied there were good reasons to investigate. This was because while the Council did not name a specialist setting, it had told her Z needed one and that it was searching for one. In all the circumstances, I considered it likely this would have deterred Mrs Y from appealing as she had a reasonable expectation the Council would find him a placement anyway.

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How I considered this complaint

10. I considered evidence provided by Mrs Y, the notes I made of our telephone conversation, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of the draft decision to Mrs Y and the Council. I considered their responses.

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What I found

Law and policy

11. A child or young person with special educational needs may have an 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 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 show appropriate oversight in gathering information to fulfil their legal duty. As 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

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. 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)
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude, and to any special educational needs they may have. (Education Act 1996, section 19(6))
17. The education provided by the council must be full-time unless the council decides full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
18. 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’)
19. The courts considered the circumstances where the section 19 duty applies. Case law states 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

20. Mrs Y has a son, Z, who has an EHC plan. She has various complaints about the way the Council dealt with him when he struggled at school. These include its failure to ensure he received the provision set out in his EHC plan and failing to name a specialist school in his EHC plan. She believed the Council failed to make proper efforts to find him a school he needed or provide him with the provision set out in his EHC plan.
21. I considered each of her complaints:

Complaint a): failing to provide specialist placement

22. Mrs Y is unhappy with the time taken for the Council to find a suitable setting for Z even though the placement panel decided in 2024 this was what he needed.
23. His EHC plan in 2024 named a mainstream school, not a specialist school. This was not changed until April 2025 when it noted in it that he needed a specialist setting, without naming a particular school. Mrs Y believed the Council took too long to find him a specialist school as it was clear long before the 2025 EHC plan that he could not cope in a mainstream school.
24. The Council explained it consulted a large number of providers and secured a placement with the first school who could meet his needs and offered him a place. This was Mrs Y’s preferred school. The placement started in September 2025.
25. It explained its practice was to name the school the child attended in the EHC plan, rather than name a specialist setting. This was to help funding and transport arrangements. This was why it had not named a specialist setting after the placement panel meeting in April 2024. It accepted this was not the correct practice and has since revised it. The Council also accepted it failed to amend the EHC plan until April 2025 which was due to this incorrect approach.

My Findings

26. I found the following fault on this complaint:
1. The placement panel decided Z needed a specialist setting. This was in April 2024. Despite this, due to incorrect procedures followed at the time, the Council failed to include his need for a specialist setting in his EHC plan. The Council accepted the practice was wrong and confirmed it has since taken steps to end it.
2. The EHC plan was amended in April 2025 to state he needed a specialist setting. Z started at the special school in September.
3. Z was without a specialist placement for four terms (April to July 2024; September to December 2024; January to April 2025; April to July 2025). As a result, Z did not receive the specialist provision to which he was entitled and needed. This caused Mrs Y frustration and stress.

Complaint b): wrongly naming a mainstream school

27. While the Council accepted Z needed a specialist school, it failed to say this in his EHC plan in 2024. As already noted, this was because the Council’s practice was to name the mainstream school a child was attending to help the parents with funding and transport.

My findings

28. I found fault on this complaint. This was because the Council accepted its practice was wrong.
29. I am satisfied it caused injustice to Mrs Y and Z. There was a lost opportunity to have a named specialist setting in his EHC plan sooner which could give the provision needed. This caused frustration and anxiety to Mrs Y.

Complaint c): delayed consultation

30. Mrs Y complained the Council failed to promptly, and regularly, consult education settings to find Z a placement. She also claimed it failed to proactively chase overdue responses from different settings who were consulted.
31. The Council agreed in April 2024 that Z needed a special school. It wrote and told her it was unable to name a specific school but, would continue to search for a suitable specialist placement.
32. The evidence showed:

2024:

• April, it consulted nine schools and received three negative responses. The following month, it received two more negative responses but consulted an extra school. It sent reminders to two of the schools and received a negative response from another.
• June, it received four further negative responses.
• July, it received five negative responses.
• October, it consulted six schools and received three negative responses.

2025:

• February, reminders were sent to two schools.
• March, three schools were consulted but negative responses were received in April.
• June, one school responded positively and Z’s placement there was confirmed.

33. In response to our enquiries, the Council accepted there were gaps with action between July to October 2024. There was a further gap of four months before further consultation and follow ups from February 2025. The Council explained the problem was with staff capacity, particularly with staff absence and turn over.
34. The Council has now made changes to the management of such cases with regular reviews, for example. It apologised for not being more proactive in updating Mrs Y.

My findings

35. I found fault on this complaint. The evidence showed there were periods of delay with the consultation process amounting to about seven months.
36. I am satisfied this caused Mrs Y and Z an injustice. She has the uncertainty of not knowing whether Z would have received a place sooner but for these delays. It contributed to her overall sense of frustration with the Council and the process.

Complaint d): lack of provision

37. The Council confirmed when the initial EHC plan was finalised, both Mrs Y and the school raised concerns about supporting Z at the school and having enough funding to deliver the high level of support needed.
38. In May 2024, the Council was told Z had been suspended from school. Mrs Y said the school could not implement the EHC plan additional provision because of funding. The Council increased core funding for the school to provide 1:1 support and other provision, such as therapy.
39. In July, the Council liaised with another school about a possible interim placement, but this did not happen. There was no information showing why this did not happen. It also discussed alternative provision with the school.
40. In September, the Council agreed to fund an assessment by the Complex Communication Team to consider his needs and make recommendations. An interim review found he started to present in school as more regulated and was accessing classroom learning most of the time. The school later told the Council he was coping well but that was only with the support of the 1:1 teaching assistant support.
41. In February 2025, the school told the Council it was at ‘breaking point’ with a high risk of exclusion. It said it had called in all the professionals it could for support/advice. At school he was in a room on his own because of his behaviour which meant he was not being educated. The school said they had been calling since Christmas about it.
42. In March, the school arranged alternative provision of 1 day a week at Forest Families, a nature based education. An email from the school to the Council said there had been several attempts to call the officer and the team in the weeks before. It confirmed it was not the right setting for Z. He was at risk of exclusion and was impacting on his mental health. Again, it said there was a funding shortage.
43. Following an annual review, in June, the Council agreed the cost of additional provision for the rest of the term.
44. The Council accepted:

• concerns were repeatedly raised by the school and Mrs Y between December 2024 and April 2025 but, it ‘did not effectively explore or respond to these concerns including regarding the provision in place’.
• it had not effectively monitored the provision.
• it should have considered whether Z’s education and special education provision were suitable and accessible despite his attendance. This was because it believed the attendance data did not capture the full picture.
• between April and June 2025, it failed to effectively fulfil its duties under section 19 and section 42.
• targeted interventions, and other areas, under his EHC plan were not provided. This was because he needed provision that could be delivered at a special school.
• his engagement at school deteriorated towards the end of autumn term in 2024. The Council estimated he received one hour of learning a day.

45. Under its complaints procedure, the Council offered Mrs Y a remedy for the failings it identified. It recognised Z had good attendance at school but had difficulties accessing education and provision there. While there were stable periods, there were also crisis points when the school said matters were at ‘breaking point’. It took account of the length of time involved, the severity of his needs, the extra funding it gave, the further assessment done to guide support, the fact he received some provision, and that some alternative provision was arranged from March 2025.
46. It paid her £6,750. It calculated it using a mid-range of £1,700 x 13 week terms over 44 weeks. It also offered £500 for the distress and frustration caused and another £500 for the time and trouble she was put to raising repeated complaints which did not adequately rectify the situation. It explained what changes it would make to ensure the failings were not repeated.

My Findings

47. I found the following on this complaint:
1. There was some evidence of the Council taking action when alerted to problems with Z at school. For example, in May 2024, it increased funding, looked at the possibility of an interim placement at another school but this did not happen, it discussed alternative provision with Z’s school, agreed to fund an assessment by its Complex Communication Team to look at his needs and consider recommendations, along with the findings of an interim review which found there had been improvements accessing school and the classroom.
2. The evidence confirmed from December 2024, there were problems. Concerns were repeatedly raised by the school and Mrs Y from this time until April 2025. For example, in February, the school told the Council the position with Z was at breaking point with him being at a high risk of exclusion. The school had been calling the Council about this since December 2024. The school said it was not the right setting for Z.
3. On balance, I am satisfied there were failings by the Council to ensure it was satisfied it had met its section 19 duty and Z was receiving suitable education for his age, ability, and aptitude, along with any special educational needs he had. There was no evidence showing it considered this when alerted to problems with Z and school.
4. I am also satisfied there were failings by the Council with its section 42 duty. The Council accepted it failed to monitor what provision was made and received by Z under his EHC plan. It accepted it failed to properly explore and respond to concerns raised about it. It noted Z was receiving only one hour of learning a day. While the school took action, the Council was also aware it was incompatible most of the time with what he needed under his EHC plan.
5. I am satisfied these failures caused Mrs Y and Z an injustice. Although there was evidence the Council worked with the school to ensure he received some provision, Z did not receive the specialist provision he needed. This was because he was not in a specialist setting. There was a lost opportunity to monitor what provision he received and whether he needed section 19 education. This caused further frustration and stress for Mrs Y.

Complaint e): communication and review

48. Mrs Y complained about the Council failing to properly deal with her because she appealed her other son’s EHC plan.
49. The Council confirmed there were some issues with communication with Mrs Y. In its stage 2 response, it accepted it was reasonable to communicate with her about consultation responses every 3 weeks. It also accepted Z’s situation at school was unstable and she needed further correspondence about it for which it apologised. It confirmed it received a high volume of communication which can make it difficult to respond to, especially when receiving multiple emails about the same issue from multiple sources. It hoped to agree a communication approach at the annual review

My Findings

50. On balance, I am satisfied the evidence showed there was a communication problem with Mrs Y and the Council. I am satisfied this caused her an injustice. She suffered some distress, uncertainty, and frustration.

Complaint f) and g): failing to attend annual review and re-arrange it

51. Mrs Y complained about Council officers failing to attend the arranged annual review of Z’s EHC plan and then failing to re-arrange it promptly.
52. The evidence showed the annual review was arranged for 10 April 2025, and that the Council’s representatives joined it virtually at the scheduled time. After waiting ten minutes they left and the group manager emailed the school about nobody else attending. I have seen the manager’s email to the school setting out what happened.
53. The school responded saying the meeting had been rescheduled to the afternoon and it was unsure if the Council had been updated about the change. This message was timed one and a half hours before the start of the revised meeting. The officer replied saying they were unable to attend on such short notice and would only be able to advise on process, not make decisions.
54. The annual review then took place on 21 May but, there had been a delay with the Council contacting the school to arrange it. Contact was not made until the start of May. The annual review report of that meeting showed a Council officer attended.

My Findings

55. I found no fault on Mrs Y’s complaint about the Council failing to attend the annual review in April 2025. This was because the evidence showed officers had turned up for the meeting but, for whatever reason, had been unaware the school had re-scheduled it for later the same day. I have seen no evidence showing the school had told the Council about this re-arrangement.
56. While I found fault with the Council’s delay re-arranging the annual review, I am not satisfied it caused a significant injustice. This was because the evidence showed the delay was minimal and the annual review was held a few weeks later.

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Action

57. I considered our guidance on remedies, the offer the Council made to Mrs Y before our involvement, and the action it said it would take to ensure the failures were not repeated, along with the apologies given.
58. I took account of what the Council said it was doing to improve the service by: training for all staff on section 19 and 42 duties; developing local specialised provision; increasing staff (EHC plan co-ordinators, a team manager, a senior EHC plan co-ordinator, screening and contact officers and another complaints officer); creating two new teams split by area for under and over 14 year olds; each team having their own telephone and email address to make it easier to get in touch with; extra staff in SEND Commissioning to support the issuing and following up of consultations.
59. I also took account of the severity of Z’s needs considering the Council had agreed he needed a placement at a special school, the time period over which the fault took place, the educational provision made, the likely learning time he received, his age, the receipt of some special educational provision, and the funding made.
60. The Council agreed to take the following action within four weeks of the final decision on this case:
1. Send a written apology to Mrs Y for the injustice caused by failing to: provide a specialist placement following the placement panel decision in April 2024; name the need for a specialist setting following the panel decision in the EHC plan; carry out consultations without delays; show it considered whether it met its section 19 and 42 duties; meet its section 19 and 42 duties; monitor the provision received; ensure he received the provision set out in his EHC plan; properly communicate with her.
2. Pay £850 to Mrs Y for the injustice caused (calculated at: £7,600 (4 terms x £1,900) less the payment already made of £6,750.)
61. The Council should provide us with evidence it has complied with the above actions.

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Decision

62. I found the following on Mrs Y’s complaint against the Council:

• Complaint a): fault causing injustice;
• Complaint b): fault causing injustice;
• Complaint c): fault causing injustice;
• Complaint d): fault causing injustice;
• Complaint e): fault causing injustice;
• Complaint f): no fault; and
• Complaint g): fault causing no injustice.

63. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman