Summary: We found fault on Miss Y’s complaint against the Council for failing to find her daughter, who has an Education, Health and Care plan, another education setting following her permanent exclusion from school. There was no fault on her complaint about it failing to provide alternative education provision or not following its complaints procedure. The Council agreed to apologise, make a symbolic financial payment, and review why the delay happened.

The complaint

1. Miss Y complains about the Council’s failures towards her daughter Z, who has an Education, Health and Care (EHC) plan, which included not providing:
1. alternative education provision since her exclusion from school;
2. provision set out in her plan since her exclusion; and
3. her with a response to her stage 2 complaint request.
2. As a result, her daughter has not received the support she should have done under her EHC plan, nor received alternative provision. This affected her development and mental health as well as impacted on the family as a whole.

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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 Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
6. 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)
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 did not investigate any complaint about her unhappiness with section I of the EHC plan because Miss Y had a right of appeal to a tribunal, which she used.

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How I considered this complaint

9. I considered evidence provided by Miss Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Miss Y and the Council. I considered the Council’s response.

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What I found

Exclusion

10. In cases where a child is permanently excluded from a school, the law says provision must be arranged for the child from the sixth day after the exclusion. This is set out in The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870) and accompanying statutory guidance.

EHC plan process

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 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)  
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 plan review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

14. There is a right of appeal to the tribunal against a council’s description of a child or young person’s special educational needs, the special educational provision specified, the school or placement, or that no school or other placement is specified in their EHC plan.

Alternative provision

15. Section 19 of the Education Act 1996 says councils must arrange suitable alternative educational provision when they find 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.
16. 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)
17. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
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 EHC plan the council also has an ongoing duty to arrange the support guaranteed by the plan. This might not always be possible, such as where the Special Educational Needs (SEN) support is designed for the child’s normal classroom setting.
20. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Councils should keep oversight and control to ensure their duties are properly fulfilled.
21. The Department for Education guidance (‘Working together to improve school attendance’) says 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 reintegration package. A part-time timetable must not be treated as a long-term solution. 

What happened

22. Miss Y complained about the Council’s failure to ensure her 12 year old daughter, Z, received provision set out in her EHC plan when she was permanently excluded from school in December 2024. She also complained it failed to ensure Z received alternative education provision when she was out of school. Z has not been in school since October.
23. In December, the Council received notification about the exclusion. The evidence showed the Council contacted Miss Y and said a caseworker would be in touch to discuss next steps. The officer wanted to refer Z for online interim home tuition.
24. In January 2025, the Council became aware Z’s engagement with tuition had stopped. The online provider tried to re-engage with Z but, this did not succeed. Miss Y confirmed Z struggled to engage with online learning. The Council believed it met the section 19 duties from 6 January to 31 January. Interim home tuition was offered for a minimum of two hours a day at home.
25. The Council issued the final EHC plan the same month. Section I said Z needed a specialist setting but did not name one. The Council wrote to various schools seeking Z’s admission for an ‘immediate start or September 2025’.
26. At the end of the month, tuition was paused while the Council looked for a face-to- face tutor.
27. In February, Miss Y asked the Council to provide alternative education provision. She explained Z could not cope with online learning and was not receiving the provision set out in the EHC plan. The Council told her it consulted three schools which all said they could not help. When more schools said they could not help, Miss Y asked for a placement at an independent school.
28. Z was referred to the Interim Home Tuition team (the team) in March. Another school Miss Y preferred offered Z a place. The Council consulted this school.
29. The following month, she appealed section I. Miss Y appealed as the Council failed to name a placement.
30. The Council asked Miss Y for consent to share details with approved providers which would allow it to make arrangements for tuition at home
31. In May, Miss Y complained to the Council about the lack of education provision. The evaluation of her preferred school was sent to the Placements Team. The Council again asked Miss Y for consent to share details with approved providers.
32. In June, Miss Y told the Council she was not refusing support but the offer of 1:1 tuition at home or elsewhere was not appropriate. She had younger children at home and Z remained isolated. She wanted it to name a setting in the updated EHC plan. Later that month, the final EHC plan was issued naming the parental preference.
33. The Council’s response to her complaint said she was referred to the team, which offered two hours minimum a day at home, as well as alternative providers. It continued to offer tuition but, Miss Y declined it. I have seen a record for May showing she refused to give consent to share information as she did not want tuition. By refusing to give consent, the Council struggled to find and deliver suitable tuition in person, online, or at an alternative provider setting to meet Z’s provision under her EHC plan.
34. Face to face tuition was offered. Records showed she refused the offer of a tutor and said education at home or a venue would not work. Evidence also showed she declined tuition at home, or at a local venue, saying this would not work due to other siblings at home. Miss Y said Z would not engage with any kind of face to face tuition in person or online. She accepted physical work packs but said Z would not engage with them either.
35. In July, the preferred school confirmed a placement offer for Z with a start date the same month.
36. In response to our enquiries, the Council explained it satisfied itself Z received the provision in her EHC plan by sending consultations to special schools, Miss Y’s preferred school, arranging provision through a provider, as well as doing a placement search.
37. It considered it fully addressed her complaint at stage 1 of its complaints procedure which was why it refused to allow it to go to stage 2.

My findings

Complaint a): alternative education provision (section 19)

38. Z was permanently excluded from school in December 2024. The Council was aware of this and had to consider its duties for making alternative provision. It had the duty to arrange suitable full-time education starting on the sixth school day after the first day the permanent exclusion took place.
39. The evidence showed the Council arranged some online provision for Z although this was not the equivalent of full-time education for her. It also started to consult a number of schools for either an immediate start, or a start in September 2025. Some schools were approached more than once.
40. When the online provision broke down, Miss Y refused suggestions by the Council of face to face provision either at home or in some community setting. I cannot say whether the Council’s offer was suitable or not, or indeed whether the hours could have been increased, because this was rejected and untested.
41. On balance, I am not satisfied the lack of education provision from February, when the online learning was ended, was a result of fault by the Council. This is because the Council’s offer with online learning and face to face tutoring showed it was flexible about how, and where, it was delivered. I found no fault on this complaint.

Complaint b): provision set out in her plan (section 42)

42. As Z was excluded, and then issued with an EHC plan, the Council had additional responsibilities to her. It had duties to make provision set out in section F of her EHC plan even when she was not attending school.
43. Having read the EHC plan issued in January, I am satisfied the provision in section F would be difficult to provide away from a school setting. This is because the provision set out relied on a school setting.
44. The Council took steps to find Z a placement by consulting with schools offering specialist education. The responses to the consultation showed they could not offer her a place because of a lack of capacity.
45. On balance, I am satisfied that while the Council consulted and used its best efforts to find a placement at a specialist school, with an immediate start or a start in September, the delay in finding her a placement until the start of July was a service failure.
46. Z was unable to start at the named school for about six months from the date online provision was withdrawn. I am satisfied this caused Miss Y and Z injustice in the form of frustration, stress, and lost provision under the EHC plan. I also note some provision was declined by Miss Y which could have reduced some of the impact the delay had on Z.

Complaint c): response to stage 2 complaint request.

47. The Council directed Miss Y to the Ombudsman when she made her request for her complaint to move from stage 1 of its complaints procedure to stage 2.
48. The complaint procedure has two stages. It stated when a customer had exhausted the relevant stages, and considered problems had still not been addressed, they could escalate it to the Ombudsman.
49. The procedures say a stage 2 investigation happens when stage 1 finds a further investigation is needed. A stage 2 request will be investigated where the request is accepted and the points for further investigation confirmed.
50. I am not satisfied it was fault for the Council to refuse to accept Miss Y’s complaint should proceed to stage 2. It did not accept her complaint needed to go to stage 2 which it was allowed to do under its complaints procedure.
51. Miss Y’s complaint has now been investigated by us, which is what would have happened had she remained unhappy with any stage 2 investigation.

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Action

52. I considered our guidance on remedies, Miss Y’s refusals to allow the Council to share information, and her rejection of the offers of provision the Council made to her.
53. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Miss Y a written apology for the injustice caused by the failure to ensure a school placement was made without delay
2. Pay £750 to Miss Y for the injustice caused (£500 x 1.5 terms: 1 x Spring term and 0.5 x Summer term)
3. Review the reasons for the delay finding an alternative educational setting and ensure this can be avoided in the future.
54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. I found the following on Miss Y’s complaint against the Council:

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Investigator's decision on behalf of the Ombudsman