Summary: The Council was not at fault for the way it handled Ms X’s child’s special educational provision when they were out of school. The Council provided as much provision as the child could cope with. We cannot investigate what the Education, Health and Care plan said.

The complaint

1. Ms X complained the provision set out in her child’s Education, Health and Care plan did not meet her child’s needs, and the provision her child got was insufficient. Ms X said this impacted her child, and her wider family. She said her child is isolated. Ms X said she is unable to work which has cause financial stress.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. 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.

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What I have and have not investigated

8. As I have said above, we cannot investigate late complaints unless we decide there are good reasons. In this case, Ms X complained about the Council’s actions going back some years.
9. I have considered the reasons Ms X did not bring her complaint to us earlier. I find reasonable opportunities existed for Ms X to complain to us earlier. I do not find good reasons for us to exercise our discretion to investigate more than 12 months before Ms X complained to us.
10. Ms X complained to us in July 2025. For this reason, I have investigated the Council’s action from July 2024.
11. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s special educational needs, the special educational provision specified, the school or placement, or that no school or other placement is specified in their Education, Health and Care (EHC) plan.
12. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
13. 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.
14. 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, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC plan are finalised, so long as the council follows the statutory timescales to make those amendments.
15. 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) 
16. In this case, the Council issued Miss X’s child’s EHC plan in March 2025. This gave Ms X appeal rights which she exercised. She appealed the description of her child’s needs, the provision set out in the plan, and the named placement. We therefore cannot investigate any lack of special educational provision from March 2025 onwards (because at the time of investigation, the Tribunal had not concluded).
17. Therefore, I have investigated the Council’s actions from July 2024 to March 2025.
18. I have not investigated the part of Ms X’s complaint that the provision set out in her child’s Education, Health and Care plan does not meet her child’s needs. This is because Ms X had a right to appeal this, and she exercised that right.
19. I have investigated the part of Ms X’s complaint about her child’s provision between July 2024 to March 2025.

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How I considered this complaint

20. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. I considered the relevant legislation and statutory guidance. I also considered these Ombudsman focus reports:
• “Out of school, out of sight? Ensuring children out of school get a good education” (updated August 2023)
• “Supporting children out of school” (October 2025)
21. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.

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What I found

What should have happened

22. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This plan 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. 
23. 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)  
24. 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 (SEN) they have.
25. 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.
26. 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.
27. 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.
28. 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)
29. Our guidance says councils should, amongst other things:

• ensure provision meets the individual needs of the child where it decides to arrange alternative education;
• keep all cases of part-time education under review with a view to increasing when the child is able; and,
• 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.

30. The Department for Education 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.

What happened

31. Ms X’s child, B, had been attending the school named in their Education, Health and Care (EHC) plan. However, they could no longer attend that school.
32. In May 2024, there was a review of B’s EHC plan. Ms X asked the Council to put certain provision in place while the Council looked for another placement. The Council put this in place.
33. In March 2025, the Council issued B’s amended EHC plan. Ms X appealed.
34. Ms X complained.
35. The Council said it had put provision in place for B in the short-term while it looked for a suitable school placement. The Council said if a child has one-to-one alternative provision, they could get fewer hours than fulltime provision. This is because one-to-one provision is more concentrated. It said this was in line with the Ombudsman’s focus report (paragraph 20).

Analysis

36. Ms X complained the Council did not provide anything in her child B’s Education, Health and Care (EHC) plan. I have investigated provision between July 2024 and March 2025.
37. During this time, B was not able to attend school. The Council put in place a package of provision it says Ms X asked for in the review of B’s EHC plan in May 2024. The Council considered B could not cope with any more provision than this. It said this was supported by reports from B’s tutors and mental health professionals.
38. I find the Council kept B’s provision under review. It increased B’s provision to as much as it deemed appropriate, effective, and in B’s best interests, taking into account the views of professionals. This is evidence of good practice.
39. The Council could not have put in place the provision set out in B’s EHC plan during this time. This is because the provision set out in plan was specifically aimed at in-school provision, and B was not in school. I find the Council put in place provision that it believed was suitable for B’s age, ability, aptitude, and special educational needs.
40. The Council was entitled to decide how much provision to put in place. It did this in line with Ms X’s wishes and professionals’ assessments. It kept this under review. I find no fault with the way the Council decided how much provision to put in place for B. Therefore, I cannot challenge the outcome of its decisions.
41. I note that the Council said if a child has one-to-one alternative provision, they could get fewer hours than fulltime provision. This is because one-to-one provision is more concentrated. It said this was in line with the Ombudsman’s focus report (paragraph 20). I agree.

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Decision

42. I find no fault.

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Investigator's decision on behalf of the Ombudsman