Summary: Miss X complained the Council failed to provide her child, Y, with the provision set out in his Education, Health and Care Plan, and with alternative provision when he stopped attending school. Miss X also complained the Council delayed finding a suitable placement for Y. There was fault by the Council which cause injustice to Y and Miss X. The Council will take action to remedy the injustice caused.

The complaint

1. Miss X complained the Council:
1. failed to provide her child, Y, with suitable education and with the provision set out in his Education, Health and Care Plan
2. refused to provide Y with alternative provision when he stopped attending school
3. failed to find suitable placement for Y in a timely manner.
2. Miss X said as a result, Y lost out on suitable education and provision, he was left without a school placement and without peer interaction over a significant period. Miss X also said the matter affected Y’s self-esteem and confidence, and it caused her significant distress, and it affected her work and family life.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, sections 34(3), as amended)
5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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)
8. 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

9. I have investigated matters from December 2024 to July 2025. This covers the period from when an early annual review of Y’s EHC Plan was held to when Miss X made a complaint to the Ombudsman.

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How I considered this complaint

10. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
11. 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

Education, Health and Care 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 this duty to arrange provision is owed personally to the child and is non delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
16. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.

Alternative Provision

17. Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
18. 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.
19. 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.
20. If a child has an 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.
21. 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.

Part-time timetables

22. The DfE guidance (Working together to improve school attendance) states 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 re-integration package. A part-time timetable must not be treated as a long-term solution.
23. The Council’s Interim Provision Service (IPS) is an interim teaching service for children and young people between 5 and 25 years old with an EHC Plan who are not on a school roll and are awaiting an educational placement.
24. The IPS provides 1:1, face-to-face teaching. This can take place at home, at community venues or online. The number of weekly teaching sessions offered depends on the ability and special educational needs of the child/young person.

Background

25. Miss X’s child, Y, has some health conditions and special educational needs (SEN).
26. Y attended School 1 and he has an Education, Health and Care (EHC) Plan. Some of the provision set out in his October 2024 final Plan included:
1. 1:1 intervention with the use of structured tools to help Y express himself more constructively when he is emotionally dysregulated (at least 20 minutes weekly).
2. A suitably adapted and differentiated curriculum and a visual timetable of the school day.
3. School 1 to run a Circle of Friends intervention, or equivalent, to provide Y with a support network of other children who can help him feel included within school and to help manage his behaviour.
4. At least 90 minutes additional support with managing Y’s emotions and behaviour (twice a week)
5. Formal program to take place at least twice weekly, with sessions for approximately 30 minutes as part of a small group intervention which focuses on developing Y’s knowledge and understanding of emotions.
6. Sensory circuits to allow opportunity to engage with bespoke activities that Y would engage with for a minimum of 15 minutes daily.
27. Y had fixed term exclusions on two occasions in October and November.
28. As of November, School 1 had placed Y on a part-time timetable due to his SEN. He attended school every weekday from 8:40am to 2pm. The reduced timetable arrangement was signed by Miss X and School 1. The Council was not aware of the arrangements.

Key events

29. Due to Y’s SEN and dysregulation, Miss X requested an early review of his EHC Plan. She also raised concerns about School 1’s ability to meet his needs.
30. On 17 December 2024, an early review of Y’s EHC Plan was completed. The review outcomes were for Y’s EHC Plan to be amended with enhanced provision to meet his changing needs, and a change of Y’s educational placement was requested by Miss X and School 1.
31. School 1 sent the review paperwork to the Council including Y’s provision map.
32. In January and February 2025, Y had fixed term exclusions.
33. In early February, the Council consulted with some schools, but they were unable to offer Y a placement due to lack of capacity and their inability to meet his needs. This included Miss X’s preference (School 2).
34. The same month, the Council, School 1 and Miss X discussed Y’s case. All parties agreed that Y’s timetable should be reduced so he would attend School 1 for two hours per day, three times a week.
35. In mid-February, Y stopped attending School 1 due to his SEN, dysregulation and a breakdown in relationship between Miss X and School 1.
36. On 12 March, Miss X informed the Council that School 1 could not meet Y’s needs. She also raised concerns about the insufficient amount of work School 1 sent home for Y and how he was missing out on adequate education. Miss X asked the Council to provide Y with alternative provision while it was consulting with other schools.
37. The Council said while it was in the process of identifying a placement for Y, it asked Miss X to discuss alternative provision options with School 1 as it was responsible for sourcing them. It said it would also escalate Miss X’s request to determine whether the Council could provide Y with alternative provision under section 19 of the Education Act 1996.
38. The Council continued to consult with other schools but none of them could meet Y’s needs.
39. In early April, the Council issued its refusal decision letter to Miss X’s request for alternative provision. The Council said it decided Y could be supported to receive suitable education at School 1 and with accessing the provision in his EHC Plan. The Council said to support Y in accessing his education:

• it would arrange a multi-agency meeting of Y’s professionals to explore the barriers to attendance and the support that could be put in place for him.
• the support would be reviewed after three months to ensure progress was being made.

40. In late April, the multi-agency meeting was held to discuss alternative provision options for Y, and two further meetings were held in May. Some alternative provisions were explored, and it also considered what setting would be appropriate to deliver Y’s SEN provision.
41. Miss X made a formal complaint to the Council about its delays and failure to provide Y with suitable education, suitable placement, and alternative provision since February. Miss X also said Y being on reduced timetable showed School 1 could not meet his needs and due to negative consultation responses, she asked the Council to consider a special school placement for him.
42. The Council acknowledged the delays with securing an alternative placement for Y, but it said no offer was made by any of the various schools it consulted with. It said it was still liaising with School 2 for an offer for Y. The Council also said it had already considered and made its decision about Miss X’s request for alternative provision. The Council did not uphold Miss X’s complaint.
43. In June, the Council agreed Y’s SEN could be best met in a specialist facility within a mainstream setting. The Council secured a specialist facility placement for Y at School 2, and it agreed to award the setting with additional funding for the next academic year to provide Y with his SEN provision.
44. On 5 June 2025, the Council issued Y’s final EHC Plan with School 2 (specialist facility) as the named setting. The Council advised Miss X of her appeal rights to the Tribunal.
45. Y did not start School 2 immediately because of the Council’s oversight in relation to its plan for Y to attend School 1 until the end of the 2024/2025 academic year and then for him to start School 2 in the next academic session.
46. On 25 June, the Council held a 3-month review of its section 19 duty. The Council decided there was no longer a need to consider alternative provision for Y because it had already secured a placement at School 2 for him.
47. Y remained out of school until the end of the 2024/2025 academic year. The Council apologised to Miss X for the confusion about Y’s start date at School 2.
48. Miss X was dissatisfied with the Council’s response, and she made a complaint to the Ombudsman.
49. Subsequently, Miss X confirmed Y started School 2 on a reduced timetable.
50. In its response to the Ombudsman enquiries, the Council:

• confirmed Y’s reduced timetable arrangement which was agreed in February was not reviewed. The Council also said it did not receive a request from School 1 for Y’s part-time timetable to be extended, so it was unaware it continued to be in place.
• accepted that when Y was unlikely to return to School 1, alternative provision was not delivered by School 1 even after Miss X’s request and after the multi-agency meetings.
• explained it did not agree to arrange alternative provision for Y through its Interim Provision Service (IPS), because it considered School 1 needed to do more, especially as the Council had provided it with sufficient funding to ensure that suitable education was delivered to Y.
• accepted its response to its Section 19 duty was not robust as the relevant staff/team had inconsistent understanding of how to respond to the Council’s Section 19 duty especially when Y did not return to School 1 in February 2025. The Council said its duty to consider whether it needed to make alternative provision arrangement was not explicitly considered in Y’s case and while he was awaiting a new placement.
• apologised for its oversight and said it had improved its Section 19 policy and guidance to ensure clear and consistent understanding of its legal duty.

Analysis

51. The Council should have issued Y’s final EHC Plan on 11 March 2025 (12 weeks after the review meeting). It did not issue Y’s final Plan until 5 June 2025. This was a delay of approximately 12 weeks, and it was not in line with statutory timescales. This was fault and it caused Miss X distress, and it delayed her appeal right to the Tribunal had she wished to exercise her right.
52. Councils can decide a child cannot cope with full-time education and then put in place a part-time timetable to enable the child access school. In February 2025, the Council, School 1 and Miss X agreed that Y should be placed on a reduced timetable (two hours per day, three times a week) due to his SEN and dysregulation. This was not fault.
53. But the Council did not keep Y’s part-time timetable arrangements under review between March 2025 and June 2025 (when Y’s final EHC Plan was issued). The Council should have continued to have an oversight of the delivery of Y’s provision during this period particularly at a time it was investigating Miss X's complaint and when Y was out of school. This was fault.
54. I acknowledge School 1 submitted Y’s provision map to the Council after the review meeting in February 2025 and the Council’s point that it provided School 1 with sufficient funding to ensure suitable education was delivered to Y. However, the Council’s legal duty to secure the provision set out in Section F of Y’s EHC Plan under Section 42 of the Children and Families Act 2014 is non-delegable. There was no evidence to show how the Council satisfied itself Y received the SEN provision in his EHC Plan via the part-time timetable. This was fault.
55. The Council’s faults to discharge its Section 42 duty caused Miss X distress and uncertainty as to whether the Council provided Y with suitable education and support between March 2025 and June 2025.
56. Similarly, the Council had a legal duty under Section 19 of the Education Act 1996 to have provided Y with alternative provision when he stopped attending School 1 in February 2025. This was not entirely the responsibility of School 1. I find the Council fettered its discretion when it decided not to arrange alternative provision for Y through its Interim Provision Service (IPS). The Council took a blanket approach and failed to consider its discretion to provide Y with Section 19 alternative provision. This was fault and it caused uncertainty to Miss X.
57. The Council delayed considering and failed to provide Y with alternative provision after he stopped attending School 1. This was in breach of its Section 19 duties, and it was fault. As a result, Y lost out on suitable education and SEN support from when he stopped attending school to the end of the 2024/2025 academic year (February 2025 – July 2025). It also caused distress and frustration to Miss X.
58. The first set of consultations the Council made was in February 2025. This was a delay of approximately two months after the December 2024 review meeting, and it was fault. It caused distress and uncertainty to Miss X.
59. But I am satisfied the Council then took reasonable steps to consult with various schools for an offer of alternative suitable placement for Y. Also, the Council subsequently considered a specialist facility placement for Y which was named in his final EHC Plan issued in June 2025. This was not fault.
60. We have recently made service improvement recommendations in other decisions that the Council should remind relevant staff to adhere to EHC Plan annual review statutory timeframes and about the Council’s legal duties under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made service improvement recommendation about the same identified issues in this case. These identified issues are already being addressed through other cases we have investigated.

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Action

61. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Miss X to acknowledge the injustice caused by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• make Miss X a payment of £1,500 to acknowledge a term and half loss of suitable education, provision and support to Y caused by the Council’s failure to discharge its legal duties under Section 42 of the Children and Families Act 2014 and Section 19 of the Education Act 1996. This payment also includes the distress, frustration and uncertainty caused to Miss X by the Council’s failings as identified above in line with our guidance on remedies.

62. The Council should provide us with evidence it has complied with the above actions.

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Decision

63. I find fault by the Council causing injustice to Y and Miss X. The Council will take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman