Summary: Miss X complained the Council failed to secure the type of placement specified in her child’s Education, Health and Care Plan. We find the Council at fault for delays, misapplying the law, failing to secure special educational provision, and failing to arrange alternative provision once they became of compulsory school age. As a result, her child missed education and specialist support, and caused Miss X avoidable distress, uncertainty and time and trouble pursuing complaints. The Council has agreed to apologise, and make a payment to Miss X.

The complaint

1. Miss X complained the Council failed to secure the type of placement specified in her child Y’s Education, Health and Care (EHC) Plan. Although the EHC Plan states that Y requires a specialist setting, the Council has told Miss X that Y can either attend a mainstream school with additional funding, or she must electively home educate Y while waiting for a specialist placement to be identified.
2. Miss X says the Council’s actions have caused her significant distress and left Y without suitable education for an extended period. She is concerned that Y has missed important learning and has not received the specialist support set out in the EHC Plan.

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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. 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.
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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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss 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 and legislation

EHC Plans

9. 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. 

Timescales and process for EHC assessment

10. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.

Maintaining the EHC Plan

11. 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)  

Summer born children

12. ‘Summer born children’ are children born between 1 April and 31 August. These children are not required to start school until the September following their fifth birthday. Ordinarily, they would then start school in year one with their ‘chronological year group’.
13. Parents can request their summer born children are admitted to a reception class in the September following their fifth birthday rather than year one. This means they are educated outside their normal age group.

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)

Elective home education

16. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

17. In February 2024, Mrs X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for her child, Y.
18. Within two weeks, and within the statutory timescales, the Council agreed to carry out the assessment.
19. In March, Y was allocated a place at a local mainstream primary school (School 1) to start in September 2024.
20. In May, Miss X complained to the Council about delays in completing Y’s EHC needs assessment.
21. The Council responded, apologised, and explained the delay was due to a national shortage of Educational Psychologists.
22. In July, Miss X applied to defer or delay Y’s school entry, explaining that Y would be unable to access mainstream provision. The request was refused because Y was not a summer-born child. School 1 contacted the Council and confirmed it could not meet Y’s needs. The Council advised Miss X that Y’s attendance at school was not compulsory until they reached five years of age, but that Y would be expected to start school after the Easter holidays.
23. In August, the Council issued a draft EHC Plan for Y. The draft set out Y’s special educational provision but did not name a school or specify a type of setting.
24. In September 2024, Miss X asked for a short extension of time to express her preference for an educational placement. The Council agreed, and Miss X submitted her preferences three working days later, within the original 15-calendar-day timescale.
25. The Council consulted Miss X’s preferred school and four additional schools.
26. In October, after receiving two negative responses from consulted schools, the Council issued Y’s final EHC Plan. The Plan did not name a school but specified that Y required a specialist setting.
27. In November, the family’s social worker asked Miss X whether she would be willing for Y to receive interim tuition. Miss X agreed but requested that any tuition take place outside the home to support Y’s behaviour.
28. In December, the Council considered the request for tuition but decided it was not appropriate given Y’s age and developmental profile. The Council considered that attending School 1 with enhanced support would better support Y’s social interaction.
29. Miss X disagreed with this decision, stating that a mainstream placement was unsuitable for Y. The Council accepted that Y required a specialist placement but maintained that School 1 was the most appropriate interim option while consultations continued.
30. In February 2025, Miss X complained to the Council. She explained that Y had been unable to access nursery or pre-school provision due to their significant needs, and that the Council’s proposal for Y to attend School 1 was unsuitable and inconsistent with the EHC Plan.
31. The Council responded that it understood Miss X’s concerns but maintained that, with additional funding and support, Y could access education at School 1.
32. In March, Miss X made a further complaint, stating that the allocation of School 1 left her with no option but to defer Y’s attendance.
33. Later that month, the Council issued consultations to 18 specialist schools.
34. School 1 also contacted the Council for an update, noting that Y was now of compulsory school age. The Council shared its view that Y could attend School 1 on an interim basis while a specialist placement was sought. It also informed School 1 that Miss X did not consider this appropriate and invited the school’s views.
35. In April, the Council responded to Miss X’s complaint. It said Y had been allocated School 1 before the issue of the EHC Plan and stated its view that, until a specialist placement became available, Y could receive a suitable education in a mainstream setting with additional support. The Council stated that all children, regardless of need, can be educated in a mainstream school and that School 1 constituted a suitable placement.
36. Miss X escalated her complaint. She explained that a mainstream school was not suitable, that Y’s EHC Plan specified a specialist setting, and that trial sessions at School 1 had confirmed it could not meet Y’s needs. She said this view was shared by staff at the school and that the Council’s actions were causing significant distress to the family.
37. In May, the Council issued its final complaint response. It said it was continuing to seek a specialist placement and repeated that “it is a principle of law that all children can be educated in a mainstream school”. The Council also stated that Y was now of compulsory school age and must receive suitable full-time education. It said that if Miss X did not wish Y to attend School 1, she was required to submit a proposed elective home education programme for the Council’s approval.
38. In June, Miss X brought her complaint to the Ombudsman.
39. Later that month, a specialist school confirmed a place would be available from September 2025. Miss X and Y visited the school, and Y was formally offered a place, which Miss X accepted.
40. In response to my enquiries, the Council said the delay between issuing the draft and final EHC Plan was due to Miss X requesting additional time to name her preference and the time taken to consult schools.
41. The Council explained that its view that Y could be educated in a mainstream setting on a short-term basis included consideration of:
• its legal duty to secure education for children of compulsory school age;
• the intended temporary nature of the placement, with additional funding to replicate section F provision as far as possible;
• its assessment that tuition was not appropriate for Y; and
• Miss X’s opposition to a mainstream placement.
42. The Council shared that it did not complete a formal risk assessment or delivery plan setting out how section F provision would be delivered in a mainstream setting, and acknowledged this was an oversight.
43. The Council also shared that, due to an error, the team dealing with the case believed Y’s schooling had been formally deferred and therefore did not escalate alternative provision after tuition was declined. It acknowledged that this misunderstanding contributed to Y receiving no education until September 2025.
44. The Council said its statements that Y could be educated in a mainstream setting were based on section 33 of the Children and Families Act 2014, which establishes a presumption in favour of mainstream education for children with EHC Plans. Specifically, that Local Authorities must secure a place in a maintained or mainstream school unless: it is incompatible with the wishes of the parent, or it would be incompatible with the efficient education of others, and no reasonable steps can overcome that incompatibility. The Council accepted, however, that it had already concluded mainstream education would not meet Y’s needs, as reflected in section I of the EHC Plan.
45. The Council stated that, in its view, where a specialist placement is unavailable, its section 19 duty allows it to temporarily name a mainstream school in an EHC Plan.

My findings

Delay in EHC needs assessment

46. The Council failed to complete Y’s EHC needs assessment and issue a final EHC Plan within the 20-week statutory timescale.
47. Miss X requested an EHC needs assessment in February 2024. The Council should therefore have issued the final EHC Plan by June 2024. Instead, it issued the Plan in October 2024, a delay of around four months. This was fault.
48. While part of the delay was attributable to difficulties obtaining Educational Psychologist advice, there were also avoidable delays in consulting schools and finalising the Plan. Although the Council said the delay was partly due to Miss X requesting additional time to express her school preference, the evidence shows she provided this within the original 15-calendar-day deadline. This did not contribute to the delay.
49. The delay caused Miss X avoidable distress and uncertainty and meant Y’s EHC Plan was not in place at the start of the school year. On balance, I also find that the delay meant Y missed out on special educational provision they would otherwise have been entitled to during this period.
50. I cannot say whether, had the Council issued the Plan on time, it would have been able to identify and name a specialist placement by September 2024. However, the failure to issue the Plan without delay significantly contributed to the difficulties that followed and to the injustice set out below.

Failure to provide special educational provision

51. Under section 42 of the Children and Families Act 2014, councils must ensure that the special educational provision in section F of an EHC Plan is delivered. This duty is non-delegable.
52. The Council has provided no evidence that it secured or arranged the special educational provision specified in Y’s EHC Plan while Y was out of education. This was fault. Where fault has resulted in a loss of special educational provision, we will usually recommend a financial remedy. Taking account of the severity of Y’s special educational needs, their age, and the absence of the specialist support specified in the EHC Plan during the relevant period, I consider a payment of £900 per term to be an appropriate remedy.

Failure to provide suitable alternative provision

53. Y became of compulsory school age and needed to start attending school following the Easter holidays. From that point, the Council had a duty under section 19 of the Education Act 1996 to ensure Y received suitable education.
54. In December 2024, the Council considered whether Y should receive tuition as an interim measure and decided this was not appropriate given Y’s age and developmental profile. I have seen no evidence of fault in that specific decision.
55. However, the Council then relied on the option of Y attending a mainstream school, despite:
• the EHC Plan specifying Y required a specialist setting;
• the Council accepting that mainstream education would not meet Y’s needs; and
• Miss X’s clear objections to a mainstream placement.
56. The Council referred to section 33 of the Children and Families Act 2014 to justify its position that Y could be educated in a mainstream setting. Section 33 concerns the presumption of mainstream education when an authority is preparing an EHC Plan. At the relevant time, Y already had a final EHC Plan which specified a specialist setting. Section 33 was therefore not applicable to the Council’s section 19 duties. This was a misapplication of the law and was fault.
57. The Council said it could have named a mainstream school temporarily in section I of the EHC Plan while continuing to seek a specialist placement. However, it did not do so. Instead, the Plan continued to specify a specialist setting.
58. The Council accepted it failed to carry out any risk assessment or produce a delivery plan explaining how Y’s section F provision would be delivered in a mainstream setting. It also did not proactively seek School 1’s views, only doing so after the school contacted the Council several months later. This was fault. There is no evidence the school subsequently confirmed it could meet Y’s needs. On balance and taking account of Y’s needs and the school’s earlier statement that it could not meet them, I find that School 1 was not a suitable interim placement.
59. Elective home education is not a form of alternative provision. It was inappropriate for the Council to suggest that Miss X must either place Y in an unsuitable mainstream school or electively home educate. Elective home education must be a parental choice and cannot be used to offset the Council’s statutory duties. This was fault and caused Miss X significant distress, placing her in an unfair position.
60. The Council also accepted that, due to an internal misunderstanding, it believed Y’s school place had been formally deferred and therefore did not escalate consideration of alternative provision. This was fault.
61. The Council’s repeated assertions that mainstream education was suitable, despite accepting this was not the case, caused Miss X ongoing distress and uncertainty. Miss X also spent significant time and trouble pursuing complaints and repeatedly challenging the Council’s position to resist an unsuitable placement and secure appropriate education for Y.
62. As a result of the faults identified above, Y received no education between April and September 2025 despite being of compulsory school age. Where fault has resulted in a loss of education, we will usually recommend a financial remedy. Given that Y received no education, the impact this had at an important stage of Y’s early schooling, and Y’s age, I consider a payment of £900 per term to be an appropriate remedy.

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Action

63. To remedy the injustice caused by the above faults, within four weeks of the date of our final decision, the Council has agreed to:
• apologise to Miss X in line with our guidance on Making an effective apology;
• pay Miss X £250, to recognise the uncertainty and avoidable distress caused by the delay in obtaining an Educational Psychologist advice;
• pay Miss X £2,800, to recognise the loss of special educational provision for approximately three terms between August 2024 and September 2025;
• pay Miss X £900, to recognise the loss of education for approximately one term between April 2025 and September 2025; and
• pay Miss X £150, to recognise the distress, uncertainty, and time and trouble pursuing repeated complaints to challenge the Council’s position.
64. I have not recommended any further service improvement actions in relation to delays within the Council’s SEND team or reminders to staff about its duties under sections 19 and 42. This is because the Council has already accepted and begun implementing service improvements previously recommended by the Ombudsman which address the faults identified in this case.
65. The Council should provide us with evidence it has complied with the above actions.

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Decision

66. 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