Summary: Miss B complained the Council has failed to provide a suitable education to her daughter, who I will refer to as C, for three years. The Council was at fault. It failed to secure suitable education and provision for C as outlined in her Education, Health and Care (EHC) Plan. As a result, C missed out on education and provision. The Council has agreed to apologise to Miss B and make symbolic payments.

The complaint

1. Miss B complains the Council has failed to provide suitable education to her daughter, who I will refer to as C, for three years.
2. As a result, Miss B says she has suffered distress and frustration, and C has missed out on education. She also says her and C’s relationship has been negatively impacted and C has developed separation anxiety.
3. Miss B would like the Council to offer a financial remedy so she can fund a tutor to help C catch up on the education she has missed. She would also like the Council to be held accountable for its failings.

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The Ombudsman’s role and powers

4. 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)
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 has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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 SEND Tribunal in this decision statement.
8. When considering complaints we make findings based on the balance of probabilities. This means we look at the available relevant evidence and decide what was more likely to have happened.
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. As outlined in paragraph 5, we cannot investigate late complaints unless we decide there are good reasons. Miss B says the Council failed to provide suitable education to C for three years. Part of the complaint is therefore late, and there are no good reasons to exercise discretion to investigate events going back to three years ago.
12. I have therefore investigated matters in this case from late July 2024, 12 months before Miss B complained to us, to mid-July 2025, when the Council issued its stage two complaint response. I reference matters outside of these dates for context.
13. Miss B had a right of appeal to the SEND Tribunal in March 2024 and February 2025 when the Council issued final amended EHC Plans for C following the annual reviews. However, I have exercised my discretion to investigate the periods after these appeal rights arose – starting from July 2024, due to the time constraints as outlined in paragraph 11. It was not reasonable for Miss B to appeal the March 2024 EHC Plan to the SEND Tribunal. This is because Miss B had a reasonable expectation the Council would find a special school for C. It was also not reasonable for Miss B to appeal the February 2025 EHC Plan as she agreed with the setting named in section I of the EHC Plan.

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How I considered this complaint

14. I read Miss B’s complaint and spoke to her about it on the phone.
15. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
16. Miss B 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 

17. 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. 
18. 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 

Section 42 duty - Maintaining the EHC Plan

19. 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)  

Section 19 duty - Alternative provision

20. Section 19 of the Education Act 1996 says that the council 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.

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What happened

21. This is a summary of events outlining key facts and it does not include everything that has happened in this case.
22. In March 2024, the Council issued an amended EHC Plan following an annual review with section I as a special school, but no named setting. As such, the Council arranged alternative provision with provider X in April 2024. The Council says this was for up to 12 hours a week. It also arranged an additional package of alternative provision with provider Y from June 2024. This provision was for two hours a week.
23. In June 2024, an annual review of C’s EHC Plan was held. The decision was to amend the EHC Plan. The Council issued the draft EHC Plan in July 2024 and consulted with several schools which returned negative responses.
24. In October and November 2024, the Council consulted with other schools which returned negative responses, except for one, which requested to visit C. In January 2025, this school offered a place for C. In January 2025, the Council says provider Y gave notice the provision with it had ended following a request from Miss B to pause the provision until the end of the Summer term in preparation for C to transition to her new school in September 2025. The Council issued the final amended EHC Plan in February 2025 which named the special school that offered C a place, from September 2025.
25. In March 2025, Miss B raised concerns with the Council about the tutor from provider X. She told it C could not be left alone with the tutor due to her health needs, as the tutor was untrained. She also felt the tutor did not engage properly with C, and that C was not learning anything new. Miss B told the Council she felt it would be best for the tutor to pause the sessions until the issues were discussed with provider X. The Council spoke to provider X. It told the Council it was under the impression the tuition was going well. However, it said it would look into sourcing a new tutor if it was felt the tutor was not a good fit for C, although it could not guarantee a new tutor would be found immediately. Miss B told the Council the hours were briefly increased with the provider to aid engagement, but there was still no improvement with the tutor. The Council told Miss B it would contact provider X to source a new tutor and it would continue to commission the current tutor in the interim to ensure there were no gaps in provision. Miss B declined the continuation of the current tutor, and the Council agreed. As such, the tuition was paused.
26. In early May 2025, an annual review of C’s EHC Plan was held. The decision was to amend the EHC Plan. Miss B complained to the Council around the same time about its failure to provide adequate alternative provision to C. She complained that although tuition had resumed with provider X, C was only receiving 6 hours of tuition a week, and she would need more tuition to prepare her for reintegration into full-time education in September 2025. The tuition with provider X was increased to 20 hours a week the following week, in mid-May 2025.
27. In early June 2025, the Council sent Miss B its stage one complaint response. It told her:
• It had fulfilled Miss B’s request of increasing the tutoring hours to prepare C for school.
• There had been challenges in securing a special school placement since March 2024, but the Council continues to work with Miss B to ensure a suitable package of education is in place until C starts school in September 2025.
28. Miss B raised a stage two complaint with the Council. The Council issued C’s draft EHC Plan shortly after, following the annual review held the previous month. Around this time, Miss B asked the Council when the provision with provider Y would begin again as this was due to resume the following month, July 2025, and C benefitted from this provision. The Council told Miss B it had received the funding agreement for provider Y, and it would get in touch with it.
29. The Council issued C’s final amended EHC Plan in July 2025. It also sent Miss B its stage two complaint response. The Council told Miss B it accepts there had been failings in it ensuring appropriate alternative provision was in place while it searched for a school place for C. The Council apologised for this. Miss B brought her complaint to us a few days later.

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Analysis

30. Section I of C’s EHC Plan stated the type of setting as a special school, meaning the provision in C’s EHC Plan was due to be delivered at a special school. The Council was working to find a special school place for C, so it knew while it was doing this C would not be receiving all the provision in her EHC Plan while out of school. Section 42 of the Children and Families Act places a non-delegable duty on councils to secure provisions in the EHC Plan, irrespective of whether section I specifies a particular school. For the period I am investigating, the Council did not take sufficient action to secure provisions for C as outlined in the EHC Plan. This was fault.
31. The Council considered C needed to go to a special school, but C did not have a place at a special school until September 2025. So, full-time school education was not available or accessible to C until this time. As such, the Council should have considered what action it could take to provide suitable education to C while it was finding a special school place for her, and in the interim after it had found a special school, but while C was waiting until September 2025 for the placement to start. The Council considered its duty, and it arranged alternative education provision for C. But, in response to my enquiries, the Council has acknowledged the hours offered were limited by the maximum hours the providers could offer. On balance, it seems the Council recognises the hours of alternative education provision offered to C did not amount to a suitable full-time education. This was fault.
32. The Council’s failure to secure suitable full-time education and provision for C caused an injustice to her. As outlined in paragraph 12, I have investigated matters from late July 2024 to mid-July 2025. As such, I have considered and suggested a remedy for the injustice caused to C during this period. During said period, C missed the provisions outlined in her EHC Plan for the full period, and suitable education from late July 2024 to mid-May 2025, when the Council increased the tuition to 20 hours a week. Full-time education is not defined but is commonly held to be equivalent to between 22 and 25 hours a week. When a Council is arranging one to one tuition, fewer hours may be appropriate, giving the increased intensity of learning. I have therefore recommended a remedy up to the point C began to receive 20 hours of tuition a week.
33. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
34. When a young person has missed education because of fault by a council, we may recommend the council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
35. In determining an appropriate level we will take account of factors such as:
• The severity of the young person’s SEND as set out in the EHC Plan;
• Any educational provision that was made during the period;
• Whether additional provision can now remedy some or all of that loss; and
• Whether the period affected was a significant one in a young person’s school career, for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.
36. Given C’s age, the stage of education (due to transfer to secondary school), and the level of education and provision that was provided, a payment of £1,500 per term of missed suitable education and provision would be appropriate for the period between late July 2024 and mid-May 2025 when C missed EHC Plan provisions and suitable education provision. I have made a recommendation below outlining the total payment the Council should pay to remedy the education and provision C missed. I have also made a payment recommendation for the period after mid-May 2025 to mid-July 2025. This is because although C began receiving the 20 hours a week of alternative education provision from mid-May 2025, she was still missing provisions as outlined in her EHC Plan.
37. I have not made any service improvement recommendations. This is because there does not appear to be any current themes within our casework which highlight a systemic issue within the Council in relation to the fault identified. We do however monitor emerging themes and issues in the complaints that are brought to us and will make service improvement recommendations where appropriate, which we carefully monitor to help drive improvement to council services. I have also not recommended the Council apologise to Miss B, as it has already done so in its complaint response which is appropriate.

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Action

38. To remedy the outstanding injustice caused by the fault I have identified, the Council will take the following actions within four weeks of my final decision:
• Pay Miss B £3,460 to acknowledge the education and EHC Plan provisions C missed caused by the Council’s failure to secure the provision and suitable education for C, from late July 2024 to mid-May 2025, when C began to receive 20 hours of tuition a week. This has been calculated at £1,500 per term of missed provision, as outlined in paragraph 36.
• Pay Miss B £685 to acknowledge the provision C continued to miss as outlined in her EHC Plan, after mid-May 2025, to mid-July 2025, the end of the period I have investigated. This has been calculated at £1,000 for a full term, and has taken into account the 20 hours of tuition C had started to receive from mid-May 2025.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I uphold Miss B’s complaint and find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman