Summary: Mr X complained the Council failed to provide a suitable full-time education or meet the special educational needs for his son from September 2023 to February 2025 after “off rolling” him from the school named on his Education, Health and Care Plan before he was able to start at the school. The Council was at fault for failing to provide alternative education for part of this period which caused distress to the whole family. An offer of alternative education, which is not considered wholly unsuitable, was declined by Mr X.

The complaint

1. Mr X complains the Council failed to provide a suitable full-time education or meet the Special Educational Needs for his son from September 2023 to February 2025 after “off rolling” him from the school named on his EHC Plan before he was able to start at the school.
2. Mr X says the situation has been extremely stressful for the whole family and his son had a significant period of time without education.

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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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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr 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

EHC Plan 

8. 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 19 duty

9. 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.

Guide for practitioners

10. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
11. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

Key facts

12. This section sets out the key events in this case and is not intended to be a detailed chronology.

13. Mr X’s son, Y, was attending school A when a needs assessment was completed and an EHC plan issued. I have seen two final amended EHC Plans dated 18 July 2023, one names school B and the other says mainstream.
14. School B’s consultation response indicated that it could not meet Y’s needs and it declined to accept him. On 19 October the Council wrote to Mr X saying that it was going to direct school B to accept Y and that he would be placed on roll at school B by the end of term. The Council corresponded with school B saying that a gradual transition for Y would be expected and that it would communicate this to Mr X. On 20 October the Council said it had not finalised the EHC Plan naming school B and would discuss this further with senior staff.
15. On 30 October, Y was removed from the roll at school A.
16. The Council wrote to Mr X on 24 October enclosing the amended final plan for Y which named school B. The Council said it had provided additional funding to school B to allow it to employ an Individual Needs Assistant to support Y. It said this could not be provided immediately and so to ensure Y received education in the meantime, five hours of one-to-one tutoring would be provided, initially for four weeks. It said this could be delivered at home and would focus on maths and English. It said this would be reviewed once an individual needs assistant (INA) was in place and would continue to assist Y to transition to his new school. It said the final EHC Plan would be issued on 30 October and that appeal rights would engage from that date.
17. On 25 October an urgent referral was made to the Interim Provision Service (IPS) for Y. IPS then sent a referral to an education provider. The provider contacted Mrs X on 3 November to discuss the five hours of tuition planned for the next four weeks. The note of the conversation indicates the family wanted confirmation this could be extended until Y was able to start at school.
18. Mr X contacted the Council raising concerns about the proposed setting for the tuition sessions. The provider agreed to change the setting and also mentioned that the family requested increased hours including longer sessions as Y would struggle to engage with just an hour.
19. On 10 November, Mr X emailed the Council about the lack of education provision for Y. He said the provider was still trying to identify a suitable tutor. He also stated that Y was entitled to a full-time suitable education at 30 hours per week and that the offer of five hours is not suitable. Mr X said he believed that the Council had ended the placement at school B as this would have provided evidence that mainstream was unsuitable for Y. He said that they had not been listened to as parents and Y had been failed.
20. The provider identified a tutor in November who was ready to start work. However, after discussions with the family it was decided by all parties that this tutor was not suitable. On 6 December another tutor was identified and the provider made attempts to contact the family to arrange a start date. The provider emailed the Council in January saying it had been unsuccessful in contacting the family despite making several attempts. The information provided indicates the following attempts to contact the family regarding a start date for the tutoring:
• 21 November – left voicemail
• 1 December – left voicemail
• 5 December – left voicemail
• 6 December – left voicemail on three different phone numbers and sent emails to three addresses held on file
• 20 December - left voicemail
• 11 January – left voicemail
21. The provider contacted the Council again on 13 January asking if it had heard anything from the family as it had still not been able to contact them. The Council visited the family home on 22 January to carry out a welfare check. Notes of the visit say the officer rang the doorbell and knocked four times. The officer noted tools and a moped outside the front of the house and that she could hear movement in the house but that there was no response to her attempts to make contact.
22. The Council completed a welfare check on 13 February. It emailed Mr X the same day in response to concerns he raised. It provided a chronology of the steps taken to arrange interim education provision for Y. It also said that the initial proposal was for five hours per week with the intention to review his progress and engagement. It acknowledged Mr X’s preference for Y to attend a school and said it shared this goal. It commented that any support provided was likely to benefit Y once a permanent school placement was secured.
23. A further welfare check was carried out on 24 May. The notes indicate Y engaged with the officer and appeared well and happy. The notes say Mr X declined the offer of support and said they were just waiting for the tribunal hearing in two month’s time. Mr X said he wanted Y to attend school C and that he had enjoyed a taster session there.
24. The SEND tribunal took place on 23 October. It issued the decision on 6 November and named school C, the parents preferred school.
25. Mr X made a formal complaint to the Council on 6 December. He said the Council had failed to issue the amended EHC Plan following the tribunal decision within the specified timescale. He also said that Y had been removed from all school rolls since July 2023 because they had submitted an appeal to the SEN tribunal. He said that no education had been provided since that time.
26. The Council responded on 13 January. It explained that it had five weeks to issue the amended EHC plan following the tribunal decision and it did this as it issued the final plan naming the new school on 6 December. In respect of interim provision, it said it made an offer in October 2023 which was an initial offer of five hours one to one provision with flexibility to increase depending on Y’s progress and engagement. It accepted delays in sourcing a suitable tutor and a request to change location. It said that following a welfare visit in May 2024, the family indicated no additional support was required and did not wish to proceed with the provision offered.

Analysis

27. Mr X’s son, Y, did not receive any education from July 2023 until he started at school C in February 2025. As Y had an EHC Plan, the Council had a duty to provide a full-time suitable education which included the provision set out in the EHC Plan.
28. School A was unable to meet Y’s needs and so he was removed from its roll in October 2023. The information provided shows the intention to name school B, a maintained mainstream school, and for Y to attend. However, this never happened despite the Council offering additional funding. Y remained without a school place until February 2025.
29. The Education Act 1996 (section 19) states that education authorities must make suitable educational provision for children of compulsory school age who are absent because of illness, permanent exclusion or who are “otherwise” unable to attend school. The provision can be at a school or otherwise but must be suitable for the child’s age, ability and aptitude, including any special needs. Full time education is not defined in law but is commonly held to be equivalent to between 22 and 25 hours a week. Where a council is arranging one to one tuition, fewer hours may be appropriate, given the increased intensity of learning.
30. Y was without any education from July 2023 until December 2023 when an education provider identified a suitable tutor to provide five hours one to one tuition per week. This is fault. I note Mr X was unhappy with this offer and felt it was not sufficient. However, it is clear this was a starting position and that the Council was clear it would be reviewed and increased if appropriate.
31. While I appreciate Mr X’s preference that Y should attend a school while his appeal was pending, I cannot say the initial offer of alternative provision was unsuitable. Mr X did not engage with the offer and ultimately told the Council they did not require any support. I am satisfied the offer of tuition remained available and therefore do not find fault from January 2024 until the issuing of the amended EHC Plan naming school C, in December 2024.
32. At that point, provision at school C should have started however Y did not start at school until February 2025. The delay in putting provision in place following the issuing of the amended EHC Plan on 6 December is fault.
33. I am therefore recommending a remedy to recognise the lack of education provision, including the failure to meet Y’s SEN needs, for the periods from July 2023 to December 2023 and December 2024 to February 2025. I consider this amounts to two terms of lost education provision.
34. I am not recommending any payment for the period of January 2024 to December 2024 as I consider a suitable offer was not taken up by Mr X. I note the comments made in his complaint about the duty to provide a full-time education and that five hours was insufficient. However, the evidence I have seen indicates this was a starting position and would be reviewed.

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Action

35. To remedy the injustice caused as a result of the fault identified above, the Council will, within one month of my final decision, take the following action:
• Apologise to Ms X for the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended; and
• Make a payment of £4,800 to recognise the loss of education provision for two terms.
36. The Council should provide us with evidence it has complied with the above actions.
37. Over the past two years we have issued several decisions finding fault with SEN services provided by the Council, including the providing alternative provision and made service improvement recommendations. As action has already been taken, there is no need to make further recommendations at this time.

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Final decision

38. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman