Summary: The Council was at fault for failing to arrange suitable alternative education for Mrs X’s child, when they did not go to school. This caused Mrs X frustration and meant her child missed out on provision. To remedy their injustice, the Council will apologise and make a symbolic payment.

The complaint

1. Mrs X complained the Council failed to arrange a suitable education for her child, W, when they were out of school between September 2023 and July 2025. Mrs X also said the Council took too long to find W a new school.
2. Mrs X said this disrupted W’s education and had an impact on their mental health, development and future prospects. Mrs X said it also caused the wider family difficulty.

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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. 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)
5. 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

6. 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). Mrs X complained to the Ombudsman in June 2025. Therefore, the period between September 2023 and June 2024 is late. I have chosen to investigate that period because Mrs X’s personal circumstances prevented her complaining sooner.
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. In this case the Council issued its final response to Mrs X’s complaint in May 2025. W moved to a new school in September 2025. It was logical to encompass the period between May and September 2025 in this investigation so that it covers the remainder of the period W was not in education. Therefore, my investigation ends in September 2025.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

Relevant law and guidance

Alternative provision

11. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

Special educational provision

12. 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.
13. The EHC Plan is set out in sections which include: 

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

14. Only the SEND Tribunal or the council can direct changes to a child or young person’s EHC Plan. Parents can appeal to the SEND Tribunal when the council issues a final or final amended EHC Plan. They can appeal many sections of the EHC Plan, including section F and section I.
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).
16. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. That decision is also appealable to the SEND Tribunal. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. Councils can also make minor changes to the content of a child or young person’s EHC Plan without completing a full review.

What happened

18. In May 2023, the Council issued W’s EHC Plan. It named a mainstream primary school (school A) from September 2023 onwards. The Council sent a copy of the Plan to Mrs X and included a cover letter which set out her right to appeal the content of the Plan to the SEND Tribunal. Mrs X did not want W to attend school A but she did not appeal.
19. W did not begin attending school A in September 2023, but the Council did not become aware of this until mid-July 2024.
20. School A held W’s annual review meeting in late July 2024, on behalf of the Council. Following that meeting, the Council issued its decision to amend W’s EHC Plan in mid-August.
21. In mid-September 2024, the Council issued an amended EHC Plan. It told Mrs X of her right to appeal the content of the Plan to the SEND Tribunal. Mrs X did not appeal.
22. The provision in the Plan included:
• Support to help W communicate, transition to new activities, interact with their peers and manage their emotions;
• For staff at school A to liaise with a speech and language therapist about W’s needs; and
• An individualised curriculum with a focus on strategies to help motivate W to engage and benefit from education.
23. The Council issued a further amended EHC Plan in mid-June 2025. The special educational provision in the Plan was the same as in the September 2024 Plan. However, it now stated W would remain at school A until the end of the school year and that they would attend Mrs X’s preferred school (school B) from September 2025 onwards.
24. The Council arranged for W to receive 15 hours of 1:1 tuition per week, over a three-week period in the 2025 summer holidays. W began attending school B at the start of the school year.

Findings

What I have and have no investigated- education

25. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
26. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
27. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, if the appeal is withdrawn or conceded, or if the council makes another appealable decision. This includes a decision to amend a child or young person’s EHC Plan following an annual review.
28. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
29. Miss X complains W did not receive a suitable education when they did not attend school A. As the Council ‘secured’ the special educational provision in W’s EHC Plan, W’s absence from school A also meant they missed out on that special educational provision.
30. However, the reason W did not go to school A was because Mrs X felt it was unsuitable. Mrs X had opportunities to appeal the Council’s decision to name school A in W’s EHC Plan when it issued W’s May 2023 and September 2024 EHC Plans and I have seen no good reason why she did not use her rights of appeal.
31. Therefore, I cannot investigate Mrs X’s complaint about a lack of education and special educational provision for W between the date of the May 2023 EHC Plan and late August 2024, when the Council issued its decision to amend W’s EHC Plan. I also cannot investigate the period between the date of the mid-September 2024 EHC Plan and the mid-June 2025 Plan.
32. I can investigate the period between mid-August and mid-September 2024. I can also investigate the period between mid-June and September 2025. That is because it was not reasonable for Mrs X to have appealed the June 2025 EHC Plan because it named her preferred school from September 2025.

Educational provision

33. Between mid-August and mid-September 2024, the Council acted without fault. It had referred W to an alternative provision provider and was waiting for the outcome of that referral. This was an appropriate.
34. We do not expect councils to secure alternative provision during school holidays. The period between mid-June 2025 and the end of the school year was around six weeks. When the Council arranged for W to have tuition, it evidently decided that 15 hours per week was a suitable education. However, it arranged tuition for three weeks, not six. This was fault and meant W missed out on three weeks’ worth of education and special educational provision. This was an injustice to W and caused Miss X avoidable frustration.

Search for a new school

35. Miss X feels the Council should have acted sooner to arrange for W to move from school A to school B. We cannot investigate this matter because it is closely linked to Miss X’s disagreement with the Council’s decision to name school A in W’s 2023 and 2024 EHC Plans. By the time the Council issued W’s 2025 EHC Plan, it had agreed for W to transfer as of September 2025.

Annual review and EHC Plan amendment

36. The Council was able to make a minor amendment to W’s EHC Plan, to name Mrs X’s preferred school in section I. It did this in June 2025. However, the ability to make a minor amendment and issue a new final EHC Plan does not mean the Council was excused from its duty to carry out an annual review within 12 months of the preceding review. This was by late August 2025. The Council’s failure to do so was fault. The fault did not cause a significant personal injustice because Mrs X was satisfied with the content of the September 2025 EHC Plan.

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Action

37. Within one month of the date of my final decision, the Council will take the following actions:
1. Apologise to Mrs X for the frustration she felt because of the Council’s failure to arrange a suitable education for W between June and July 2025. 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 the apology.
2. Pay Mrs X £400 to recognise the impact of the lost provision on W. I have come to this sum taking into account the Ombudsman’s guidance on remedies, W’s age, the provision and special educational provision they missed out on and W’s ability to engage with that education.
38. The Council will provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council has agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman