Summary: Miss X complained about the Council’s failure to provide her child, Z, with school placement, full-time education and with the provision set out in Z’s Education, Health and Care Plan. There was fault by the Council which caused injustice to Z and Miss X. The Council will take action to remedy the injustice caused.

The complaint

1. Miss X complained that since her family moved to the Council’s borough in December 2023, the Council has failed to provide her child, Z, with:
1. a school placement and full-time education
2. the special educational needs provision set out in her Education, Health and Care (EHC) Plan.
2. Miss X said as a result, Z missed out on education, provision and support over a significant period, and the matter affected Z’s mental and physical health.
3. Miss X also said the matter caused her distress, financial strain/loss and it affected her physical and mental health.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
10. Miss X complained to the Ombudsman in August 2025 which means this investigation should start from August 2024 (the 12-month period before she complained to the Ombudsman).
11. I have exercised discretion to investigate matters from December 2023 which was when Miss X’s family moved to the Council’s borough. It was reasonable for Miss X to try and resolve matters initially without formally complaining.
12. Also, I have exercised discretion to investigate matters until September 2025 when the Council issued Z’s final EHC Plan. This is because it was an ongoing issue and it is unreasonable to direct Miss X back to the Council to make another complaint about the same issues.
13. Therefore, I have investigated matters from December 2023 to September 2025.

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How I considered this complaint

14. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
15. 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

16. 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.
17. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (section 42 of the Children and Families Act 2014). 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)
18. 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.
19. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.
20. 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.
21. 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.

Transfer of EHC Plan between councils

22. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)
23. The requirement for the child or young person to attend the educational institution specified in the EHC Plan continues after the transfer. However, where attendance would be impractical (for example due to proximity), the new authority must place the child or young person temporarily at an appropriate educational institution other than that specified until the EHC Plan is formally amended.

Alternative Provision

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 they have.
25. 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.
26. 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.
27. 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.
28. 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

29. 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.
30. Education Otherwise Than at School (EOTAS) Package – is a bespoke educational program funded by a Local Authority for children who cannot attend a traditional school setting.

Background

31. Miss X’s child, Z, has some health conditions and special educational needs (SEN) which includes severe learning difficulties.
32. Z has an Education, Health and Care (EHC) Plan. Some of the provisions set out in Z’s final EHC Plan which was issued in November 2023 included:
1. School staff to use a visual timetable for Z.
2. Staff to continue implementing oral language strategies when interacting with Z in play-based learning. Z must also be provided with organised play activities in the playground to enhance her interaction with other children.
3. Provide Z with small group situations where she can feel relaxed and provide more opportunities for verbal interactions with her peers and adults.
4. The Speech and Language Therapist (SALT) will carry out regular classroom observations to monitor the communication training needs of the classroom staff who support Z's communication development.
5. Z will benefit from the input of an Occupational Therapist (OT), who could work with the school to develop specific targets aiming to improve her physical development.
6. A member of the OT team will work to support the individual needs of Z through three identified sessions.

Key events

33. In December 2023, Miss X and her family moved to the Council’s borough. The Council was informed about the family’s move into its borough by the former council in mid-December.

2024

34. On 13 February, a copy of Z’s EHC Plan was transferred to the Council by the former council. The Council said this was when it got to know about Z’s move into its borough. The Council considered Z’s case for a specialist placement due to her severe learning difficulties.
35. The Council informed Miss X it would explore alternative interim provision/tuition for Z due to her SEN until it was able to secure a suitable educational setting for her.
36. In March, the Council consulted with various schools, and it attempted to secure interim tuition for Z. The Council was unable to secure interim tuition for Z and none of the schools offered her a placement due to either lack of availability and/or they could not meet Z’s needs.
37. In April, the Council identified a Provider and approved an interim tuition of 15 hours per week for Z. But due to Z’s medical condition, the Provider requested additional medical assessments/protocols for her as part of its risk assessment before it could start the tuition sessions with Z.
38. The Council contacted Z’s GP, but it was unable to assist with the medical protocols the Provider requested. Miss X also confirmed there was no such protocol in place. The GP directed the Council to Z’s medical specialists to get the requested document.
39. In June, the Council updated Miss X about the actions taken and the challenges it had experienced with providing interim tuition and with finding a school placement for Z. Miss X asked the Council if Z could return to her previous school based in the former council area.
40. The Council contacted and confirmed from Z’s previous school that it no longer had availability. The Council informed Miss X.
41. The Council invited Miss X for an annual review meeting of Z’s EHC Plan which it scheduled for 17 June 2024. Miss X declined the invitation due to a booked holiday. The meeting was rescheduled for 24 June and Miss X did not attend because she forgot.
42. The Council continued to seek medical protocols from Z’s professionals, and it consulted with more schools. The Council also explored and decided to provide Z with tuition over the summer holidays in recognition of the ongoing delays with securing interim provision for her. The Council made enquiries with some tuition providers about summer holiday tuition, but it was unable to arrange it for Z.
43. On 29 August, the Council held an annual review of Z’s EHC Plan with Miss X in attendance. The Council agreed to amend Z’s EHC Plan, to identify a school placement for her and provide her with tuition in the community until a school placement could be found for her.
44. On 12 November, the Council issued Z’s final EHC Plan. The provision in Section F remained the same as the one set out in the 2023 EHC Plan. The setting type identified for Z was ‘a state funded special school for children with severe learning difficulties” but no educational setting was named in the Plan.
45. The Council received Z’s medical protocols, and it arranged for the interim tuition to start from November 2024 to July 2025 (unless the Council identified a school placement within the timeframe).
46. On 18 November, Z started receiving the commissioned interim tuition from the Provider. This included a total of 15 hours tuition per week (three hours per day) with one tutor and one specialist teaching assistant to support Z’s educational needs and one carer to support her medical needs.

2025

47. In January, the Council informed Miss X about Z’s progress with the interim tuition based on the progress report submitted by the Provider. The Council told Miss X that it would continue to provide Z with the interim tuition until it secured a school placement for her.
48. Between January and April, the Council continued to consult with schools and arranged visits to some of the schools. Following the visits, the schools and Miss X felt they were not suitable placements for Z.
49. In April, the Council contacted Miss X to arrange an annual review of Z’s EHC Plan in May, but she did not respond.
50. The Council also continued to receive Z’s progress reports from the Provider which showed improvement with continued support required.
51. On 16 June, the Council held an annual review of Z’s EHC Plan. An Education Otherwise Than at School (EOTAS) package was discussed and agreed until a school placement would be found. This was to ensure Z received a balanced curriculum which would support her reintegration back into school. The Council also made a referral to speech and language therapy (SALT) for Z.
52. On 4 September, the Council issued Z’s final EHC Plan. No educational setting was named in the Plan, but the provision set out in Section F included:
1. An interim 38-week EOTAS package until the Council provided Z with an appropriate school setting that can meet her needs.
2. The continued use of visuals, including a visual timetable within the classroom.
3. Activities to be carefully planned to extend different numeracy and literacy skills and for adults to be skilled at modelling these.
4. A specialist level of intervention, provided by the team working together with parents (SALT) and setting staff to embed the approach into Z’s everyday environment. Intervention to take place within the education environment, unless there were clinically agreed exceptions.
5. Z would benefit from the input of an OT, who could work with the school to develop specific targets aimed to improve her physical development. OT to work to support Z’s individual needs through three identified sessions.

Miss X’s Complaints

53. Miss X made a formal complaint to the Council about its delays and failure to provide Z with school placement, full-time education and the provision in her EHC Plan.
54. In its responses to Miss X’s complaint, the Council:

• accepted and apologised for its delays with providing Z with suitable school placement due to her SEN. The Council said its borough was oversubscribed in terms of special schools, but that it remained committed to secure a suitable setting for Z
• apologised for the delays with providing Z with interim tuition as it needed medical advice/protocols before the Provider could start providing her with the agreed tuition session
• said in recognition of the impact of the delays, it made the decision to arrange for Z to have access education during summer holidays, it had made enquiries with some tuition providers, but it was unable to arrange it.
• said an additional investment had been approved to improve delivery of its SEND service
• offered Miss X financial payments for its delays with the annual review process, missed education and for the time and trouble she had been put to. Miss X did not accept or receive the financial payments it offered at the stage 2 complaint process.

55. Miss X remained dissatisfied with the Council’s responses and how it dealt with Z’s case. Miss X made a complaint to the Ombudsman.
56. In response to our enquiries, the Council:

• said it satisfied itself the part-time tuition/provision it provided to Z was sufficient and in her best interest based on the progress reports it received from the Provider. The Council also said Z was known to social care and that it held meetings with other professionals as part of this process to keep abreast of Z’s case which included her educational provision.
• confirmed the interim tuition was commissioned in relation to its Section 19 duty and that it was not possible to fully fulfil its Section 42 duty as Section F of Z’s EHC Plan was written for a school provision. But it said the Provider was expected to implement the strategies outlined within Section F of Z’s Plan.

Analysis

Annual Review Process

57. The Council held an annual review of Z’s EHC Plan in August 2024 which was within 12 months of when her previous Plan was issued in November 2023. However, where it is no longer practicable for a child or young person to attend the educational setting named in Section I (for example if it is too far away) then the council has a duty to arrange for them to attend another appropriate school as soon as the EHC Plan has been transferred. Therefore, in this case, I find the Council should have started the process of reviewing and amending Z’s EHC Plan straight away, because an EHC Plan must name a school or setting that the child or young person attends. The Council’s delay in arranging and holding the annual review of Z’s EHC Plan was fault. Z was left without an up-to-date EHC Plan, and it caused distress and uncertainty to Miss X.
58. After the Council held the annual review meetings of Z’s EHC Plan in 2024 and 2025 (29 August 2024 and 16 June 2025 respectively), it issued the final Plans on 12 November 2024 and 4 September 2025. These were within the 12 weeks statutory timeframe from the dates the review meetings were held. This was not fault.

Provision of School Placement and Full-time Education

59. I note the efforts and the action the Council took to secure suitable school placement for Z and I have taken into consideration the end of year school closure in December 2023. Therefore, the Council failed to provide Z with a school placement from January 2024 to September 2025 (the end of this investigation timeframe). This was fault. This meant Z was left without a school placement over a significant period. It also caused distress and uncertainty to Miss X.
60. Although the Council failed to discharge its legal duty under Section 19 of the Education Act 1996, I find the injustice caused to Z and Miss X was mitigated. This is because the Council provided Z with alternative provision from November 2024 to July 2025. Therefore, the injustice caused to Z and Miss X as stated in paragraph 59 was for a total of two and a half academic terms (January 2024 to October 2024).
61. I note Miss X said the Council failed to provide Z with suitable and full-time education/alternative provision since the family moved to its borough. However, I am satisfied the Council considered Z’s SEN to determine how many hours of tuition to be provided to her. The Council also monitored and received regular progress reports from the Provider to ensure the provision remained in Z’s best interests. The progress reports showed Z’s improvement, and it indicated she required ongoing support. This was not fault.
62. Also, I find it was reasonable for Miss X to have exercised her right of appeal to the Tribunal about Z’s school placement when her final EHC Plan was issued in November 2024, if she remained dissatisfied with the Section I of the Plan.

Section F of Z’s EHC Plan

63. A new council must put in place Section F provision in an EHC Plan without delay and immediately upon the day the Plan is transferred to it by a former council.
64. In line with Section 42 of the Children and Families Act 2014, the Council should have secured and provided Z with the provision set out in her previous EHC Plan on 13 February 2024, the day Z’s EHC Plan was transferred to the Council by the former council. The Council did not provide Z with the provision in her EHC Plan until November 2024. This meant the Council failed to discharge its Section 42 duty from February 2024 to October 2024. This was fault. Therefore, Z lost out on SEN provision and support during this period, and it also caused distress and uncertainty to Miss X.

Conclusion

65. We have recently made service improvement recommendations in other decisions 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

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

• apologise in writing to Z and Miss X to acknowledge the injustice caused to them by the Council’s identified faults as set out above. The apology should be in accordance with our guidance, Making an effective apology
• make Miss X a payment of £2,500 on behalf of Z, in recognition of her loss of school placement, education and specialist provision/support set out in her Education, Health and Care Plan from January 2024 to October 2024 caused by the Council’s fault to discharge its duties under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. This payment is calculated at £1,000 per term (two and a half academic terms) and the payment also includes the distress and uncertainty caused to Miss X by the Council’s failings as identified above
• secure and provide Z with all the provision set out in her Education, Health and Care Plan without further delay.

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

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Decision

68. I find fault by the Council causing injustice to Z and Miss X. The Council has agreed to take actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman