Summary: There was fault by the Council. It properly considered the alternative educational provision suitable for Ms X’s son when he had no school place, but it should have started organising this sooner. The Council did not fully consider whether it could implement his Education Health and Care Plan while he was not at school and it did not always communicate with Ms X sufficiently. The Council tried to find Ms X’s son a school place, but when it could not, this was service failure. The Council’s shortcomings caused Ms X distress, uncertainty and frustration. The Council has made some improvements to its service. It has agreed to also apologise to Ms X and make a symbolic payment to her in recognition of the impact on her.

The complaint

1. Ms X complains about how the Council handled her child’s educational provision. In particular, she says the Council:
• took too long to find a suitable school for her child. It did not send sufficient consultations in good time, and some of the schools it consulted were unsuitable.
• did not make sufficient alternative educational provision when it could not implement the Education Health and Care (EHC) Plan and her son could no longer go to school.
• did not communicate with Ms X properly. It did not tell her that her key worker had left the Council.
2. Ms X says the Council’s failings meant her son did not have a suitable education. It caused her distress and meant that she could not work as she had planned to do.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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)

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What I have and have not investigated

5. 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)
6. Ms X complained to the Ombudsman in June 2025. She says that her son, K, did not have a suitable full-time education from June 2023 onwards. He was on a reduced timetable at school but stopped attending altogether from July 2024.
7. I have not investigated the Council’s actions prior to July 2024. This is because the complaint about these is late and there are not good reasons why Ms X did not complain to us sooner.
8. I have investigated the Council’s actions from July 2024 to September 2025, when K started at a new school.

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How I considered this complaint

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

The law and guidance

EHC Plans

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. 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. 
13. 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)  

Alternative Educational Provision

14. 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.
15. 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.
16. 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.
17. 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.

Service Failure

18. 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) 

What happened

19. Ms X’s son, K, has special educational needs. His disability means that his behaviour is sometimes challenging. K was going to a primary school but he could not cope with school. In 2023, the school gave him a reduced timetable, but quite often he could not manage this. The Council’s children services was also supporting Ms X due to the pressure of caring for K at home.
20. In June 2024, K stopped going to school entirely. At this time, the Council issued a final EHC Plan naming a specialist setting but not a specific school. The Plan said that K needs a higher level of adult support, and personal curriculum. It said K should have a weekly session focussing on developing social interactions; have specific communications to help him express how he is feeling and to cue what he needs to do next; as well as a visual timetable. The Plan also said that K needs speech and language therapy, movement breaks and physical tasks, and a key worker to support his emotional well-being.
21. The Council consulted several schools, but these were either full or could not meet K’s needs. Over the summer 2024, Ms X asked the Council to arrange alternative provision as it was unlikely that K would have a new school place in time for the new school year.
22. At the end of August, Ms X’s social worker contacted the Council. They described the pressure Ms X was under with K’s challenging behaviour and asked it to find a place for K. By September there was still no school place and Ms X’s social worker described her as being in crisis. There was an emergency meeting for professionals working with Ms X and K.
23. K was still on roll at the original school and the Council said it would fund alternative provision arranged by the school. In October, the alternative provision started with six hours per week of tuition and youth work. The school also planned to arrange occupational therapy, play therapy, outdoor learning and another mentor and learning provider.
24. In November 2024, Ms X’s social worker told the Council that Ms X was desperate for a school place. They said there were significant concerns about the family situation, and the pressure on Ms X made it unsustainable. The social worker realised the Council’s case worker was not responding and found that they had left and a new case worker had taken over but it had not told Ms X.
25. The Council’s case notes show that it spoke to Ms X. She said that some of the alternative provision was not in place, and so K only had six hours per week of education. Ms X said this was not enough and it was having a big impact on them both.
26. In November, the Council met with other professionals. It decided to refer to other alternative educational providers. It noted professionals’ concerns about the pressure on Ms X.
27. By December 2024, K was receiving a total of eight hours of alternative provision weekly and an occupational therapy session each month. The case notes show the Council was also trying to progress sessions with another provider, but this was taking longer than expected.
28. The Council told Ms X that it would not consult any more schools. This is because some schools said it could not meet K’s needs because he did not have enough classroom experience. The Council said that it would get more information from K’s current providers so it could give up to date information to prospective schools.
29. In January 2025, the Council again met with the school and the alternative education providers. It asked the school to send reports that showed how K would now cope in a school.
30. Throughout February 2025, Ms X’s social worker told the Council that Ms X was struggling to cope and there had been very challenging incidents with K. The Council reiterated its plan to reconsult schools when new information was available from the school and the alternative education providers. The social worker asked if she could contact providers to speed this up as the situation was becoming urgent.
31. The Council received the updated information at the end of February. It had shared the list of prospective schools with Ms X, and she had told the Council that not all of these were suitable because they either did not cater for K’s year group or they had given reasons for refusal that would not be altered by any progress K had made.
32. The Council sent out more consultations to schools at the end of February. The Council asked to set up fortnightly meetings with Ms X to keep her up to date with developments. By this time, K was receiving eight hours of education, some occupational therapy and some speech and language therapy. He had tried creative therapies but had not wanted to continue, the play therapy was not suitable, and an outdoor learning provider had shut.
33. Ms X complained to the Council that it had not found a school for K, had not communicated with her properly, and had not provided a sufficient education for K while he did not have a school place.
34. The Council responded to Ms X’s complaint. It said the Council had met with professionals involved with family and with the alternative educational providers to try to make sure that K received suitable provision. It had done two rounds of consultations and although the second round was delayed, this was to allow the Council to gather up to date information. The Council had regular contact with Ms X every two weeks to update her.
35. Ms X asked the Council to consider the complaint at stage two of its process. She said:
• although the Council had consulted five schools in August and September 2024, it had not consulted any more schools until February 2025, and some of these were unsuitable.
• Alternative educational provision had not started until mid-October and it does not meet K’s EHC Plan. In particular, K is missing out on emotional coaching, intervention around school interactions, a key worker, a non-verbal communication system, group work, a handwriting program, and the full amount of occupational therapy.
• The fortnightly updates had only just started and there had been nobody to discuss concerns with.
36. The Council responded to Ms X’s complaint. It said:
• The Council had been working with the school and the alternative educational providers. It had reviewed the provision in November and January and had kept in touch with the school who was overseeing the arrangements.
• It acknowledged that there were some delays in consultation, but again said this was due to needing more information to increase the chance of a successful response.
• It apologised for some short delays in dealing with Ms X’s complaints to it.
37. In April, the Council agreed to additional provision to work alongside K’s existing learning to broaden his experience. In May, a school offered K a place and he started at the new school in September.

Was there fault by the Council causing an injustice to Ms X and to K?

38. The Council accepted that it had a duty to make alternative educational provision and it is able to allow the school to arrange this. It kept in contact with the school and providers. It also kept the amount and type of provision under review. It is for the Council to decide whether the provision was sufficient and suitable for K. It has shown that it considered this properly and based its decisions on information it had from Ms X, the school, and the providers. There was no fault in the Council’s decision making.
39. The Council did not start the process of arranging alternative provision soon enough, and did not always communicate with Ms X more effectively about this in the summer of 2024. The basic provision started in October 2024, with other providers still being consulted. Although, the provision would not have started until September, it is clear that Ms X understood it would be unlikely that her son would have a school place by the start of the school year and that Children’s Services were concerned about the challenging circumstances. Had the Council started planning for alternative provision sooner, and communicated better with Ms X in the summer months, she may have been more reassured with a comprehensive plan.
40. Although, the Council properly considered the alternative provision and whether it was suitable, there is no evidence that it gave sufficient consideration to provision K should have received under his EHC Plan. Some of this provision would be difficult to replicate outside of school, and may not have been necessary. Ms X has also told me that she did not expect the Plan to be followed to the letter. However, the Council has not shown that it gave the Plan sufficient consideration, nor that it explained its approach to Ms X.
41. The Council consulted many schools on whether they could meet K’s needs. The second round of consultations were delayed but the Council explained its reasons to Ms X.
42. The Council’s failure to secure a specialist school place for K in line with his EHC Plan is service failure. The Council use its best efforts to find him a place, but the lack of specialist school spaces is a service failure.
43. The Council responded to Ms X’s contact, but it did not always communicate with her properly and did not tell her when K’s case worker had changed.
44. The Council’s shortcomings caused Ms X distress, uncertainty, and frustration. It also meant that she was left in an extremely distressing and challenging situation longer than necessary.
45. Since the events complained about the Council has introduced a new alternative educational provision policy to ensure that it deals with requests in a timely manner. It is also making improvements to its alternative provision strategy.

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Action

46. The Council will within one month of the date of this decision:
• Apologise to Ms X for the distress, uncertainty, and frustration it caused her. 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 in my findings.
• Pay to Ms X £500 in recognition of the impact on her and K of its failings.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I find fault causing injustice. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman