Summary: Mrs X complained the Council failed to provide access to suitable education when her child, Y, was unable to attend school. We find the Council at fault for a delay in securing suitable alternative provision. The delay caused distress and frustration for Y and Mrs X and caused Y to miss out on education. The Council has agreed to apologise and make a symbolic payment.

The complaint

1. Mrs X complained her child, Y, was out of school from January 2024 to September 2025 and the Council failed to provide adequate education during this time. Mrs X also complained the Council failed to accept a suitable placement offer. Mrs X told us the mental and physical health of the whole family has been impacted, and the family has suffered financially due to Y being out of school. Mrs X would like the Council to apologise, provide an explanation about the placement decision and answers to her questions. Mrs X would also like the Council to provide suitable compensation for distress and loss of earnings.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. 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. 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

7. Mrs X complained to us in May 2025 about events which date back to January 2024.
8. Mrs X submitted a parental request for an Education, Health and Care needs assessment in February 2024 and she was hopeful this would resolve the issues of Y’s access to education. For this reason, I believe there is good reason Mrs X did not complain to us sooner and I have exercised discretion to investigate Y’s access to education from January 2024.
9. The Council issued Y’s first Education, Health and Care Plan in July 2024. When the Council issued this Plan, it told Mrs X it would continue to consult with specialist placements to secure a suitable setting for Y. For this reason, I consider it would be unreasonable to expect Mrs X to have appealed the Education, Health and Care Plans issued in July and August 2024.
10. Mrs X submitted an appeal when a further Plan was issued in December 2024. From this point the placement named, school consultation process, and matters of Y’s access to education were subject to a Tribunal appeal. Therefore, I have not investigated these parts of Mrs X’s complaint.
11. I have investigated the Council’s actions in considering and meeting its section 19 duty between January 2024 and July 2024 and how it considered and met its section 42 duty between 4 July 2024 and 3 December 2024.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. 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

Legal and administrative background

Education Health and Care Plans

14. 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. 

Section 42 duty

15. 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)  
16. 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. 

Section 19 duty

17. 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.
18. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
19. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
20. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.

What happened

21. The following is a summary of key events. It is not intended to be a detailed chronology.
22. Y stopped attending school in January 2024 due to a decline in his mental health.
23. In February 2024 Mrs X submitted a request for an assessment of Y’s Education, Health and Care needs.
24. The Council told us it became aware of Y’s absence from school in April 2024 when it received a phone call from Mrs X.
25. In June 2024 the Council’s medical needs panel determined Y was eligible for support. The Council wrote to Mrs X to explain it had agreed to provide Y with support and a meeting would be arranged to determine the specific support which would be made available. The Council agreed to provide Y with access to tutoring, learning support and an AV1 robot.
26. From the beginning of July, Y accessed two hours of tuition per week, as well as two days per week at a forest school setting which was funded by his school.
27. The Council issued a final EHC Plan for Y in July 2024. From this date the Council had a statutory duty to ensure Y received the special educational provision detailed within his Plan.
28. From September 2024 Y’s forest school provision was reduced to one day per week due to funding issues.
29. Between September 2024 and October 2024 Y accessed two hours per week of tuition and one day per week of forest school.
30. From October 2024 to December 2024 Y accessed two hours of tuition per week.
31. The Council has not provided any evidence which shows how it considered whether the two hours of tuition in provided between July and December 2024 was suitable for Y’s needs.

My findings

32. There was a two month delay in the Council referring Y to its medical needs panel once it became aware Y was not attending school in April 2024. This is fault which caused distress and frustration for Y and Mrs X and delayed in Y receiving access to education for approximately one school term.
33. The Council has not provided any evidence which shows how it determined the two hours of tuition which was provided to Y between September 2024 and December 2024 was suitable for his needs and ensured the Council’s section 42 duty to provide the special educational provision detailed in Y’s plan was met. There is no evidence which supports the reduction of Y’s access to forest school from September 2024. This is fault which caused distress, frustration and uncertainty for Y and Mrs X and meant Y did not receive access to suitable education between September 2024 and December 2024, which is approximately one school term.

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Action

34. Within one month of the final decision the Council will:
• Apologise to Y and Mrs X. 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 in making its apology.
• Make a symbolic payment of £900 in recognition of the delay in securing Y with access to suitable educational provision between April and July 2024.
• Make a symbolic payment of £900 in recognition of the impact of the Council’s failure to consider whether the special educational provision it provided between September 2024 and December 2024 was suitable for Y.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. 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