Summary: Miss J complained the Council failed to secure a place at a special school for her daughter K as required by her Education, Health and Care Plan, left her on a part-time timetable and refused a self-referral for occupational therapy support. We find the Council at fault for failing to secure a special school place, and for the way it made its decisions regarding the part-time timetable and self-referral. This caused injustice of missed special educational provision which the Council has already remedied, and uncertainty for which the Council has agreed to apologise.

The complaint

1. Miss J complains about how the Council handled her daughter K’s education. In particular she complains the Council:
1. Failed to secure a placement in a special school as required by K’s Education, Health and Care (EHC) Plan.
2. Left K on a reduced timetable since January 2025.
3. Refused a self-referral to its Children’s Social Care Occupational Therapy (OT) Service.
4. Amend K’s EHC Plan to reflect her needs following a review in June 2025.
2. Miss J says the failures denied K a full time education, had a severe impact on her wellbeing and development, and caused significant distress and financial hardship to the family.

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The Ombudsman’s role and powers

3. 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)
4. 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) 
5. 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.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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.
9. 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.
10. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
11. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. 
12. 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

Parts a) and b)

13. I have investigated parts a) and b) from 15 January 2025. The Council issued K’s EHC Plan on that date. It therefore had a duty to secure the special educational provision and type of school detailed in the plan.
14. Miss J had a right of appeal to the Tribunal about parts of K’s EHC Plan at that point. The parts included the Council’s description of K’s special educational needs, the special educational provision she was entitled to, and its decision to name a type of educational setting but not name a specific special school. However, I have decided it is not reasonable to have expected Miss J to have appealed at that point. This is because she had a reasonable expectation the Council would promptly identify and name a special school that would deliver the special educational provision to which K was entitled.
15. I have investigated until 8 July 2025. The Council notified Miss J of its decision not to amend K’s EHC Plan on that date.
16. I have decided it is reasonable for Miss J to have appealed at that point. This is because she no longer had an expectation the Council would promptly identify and name a special school given delays that had happened. Miss J subsequently used her right and appealed to the Tribunal. She appealed because she disagreed with the Council’s description of K’s special educational needs, the special educational provision and its decision not to name a specific special school in the EHC Plan. I have decided Miss J’s appeal was linked to, and not separable from, parts a) and b) of the complaint. I therefore cannot investigate beyond 8 July for the reasons explained in paragraphs 6 to 9.

Part c)

17. I have investigated part c) of the complaint about the self-referral to the OT service. I have decided it is separable from the matters that had a right of appeal. For this reason it is not affected by the restrictions that apply to the other parts of the complaint.

Part d)

18. I have not investigated part d) of the complaint. Miss J had a right of appeal about the Council’s decision not to amend the EHC Plan following the annual review in June. She used that right when she appealed. This means I cannot investigate part d) for the reason explained in paragraph 6.

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How I considered this complaint

19. I considered evidence provided by Miss J and the Council as well as relevant law, policy and guidance.
20. Miss J and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
21. 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

Law and guidance

EHC Plan 

22. 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. 
23. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

24. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
25. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Appeal rights

26. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment.

Section 19 duty and part-time timetables

27. 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.
28. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and timebound plan for reintegration then there may be no immediate role for the council in providing alternative education.
29. 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)
30. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• 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.

What happened

31. This is a summary of key events. It is not a detailed chronology of everything that happened.
32. K has special educational needs. She attended a mainstream primary school. I shall refer to it as School A.
33. The Council issued an EHC Plan for K on 15 January 2025. In Section I it said K should be in a special school, but it did not name a specific school. It recorded she would remain at School A until a special school placement was found.
34. The EHC Plan also recorded that K was only attending School A part-time. This was due to her special educational needs.
35. Miss J told the Council she had a preference for a specific special school. I shall refer to this as Special School B. The Council consulted Special School B on 20 January. It replied that it could not offer K a place.
36. The Council consulted five more special schools in March. They all replied and could not offer K a place.
37. The Council consulted another special school in May. It replied that it could not offer K a place.
38. On 23 June School A held an annual review meeting for K’s EHC Plan. It sent an Annual Review Report to the Council. School A also sent the Council a formal request for a placement discussion. It did so because it was concerned it was not the correct placement for K.
39. The Review Report and placement discussion request said K was unable to attend full-time. She attended most days, but was on a part-time timetable.
40. Miss J said she tried to self-refer to the OT service around July 2025. She needed advice on how to keep K safe at home. She said the Council refused to accept her referral because Y was not in a special school.
41. On 8 July the Council decided it would not make any changes to K’s EHC Plan following the annual review. It notified Miss J by letter. It explained she could appeal its decision to the Tribunal.
42. Also on 8 July Miss J made a stage one complaint to the Council. She complained about the Council’s handling of K’s special educational needs. She also complained she could not access OT help that was needed to keep K safe at home.
43. Miss J also appealed to the Tribunal. She appealed because the Council had decided not to amend K’s EHC Plan following the annual review. She disagreed with Sections B, F and I of K’s EHC Plan.
44. In August the Council responded to Miss J’s stage one complaint. She escalated her complaint to stage two of the complaint process. The Council responded later in August.
45. In its responses the Council accepted it was at fault because K was not accessing full time education and it had not been able to secure a suitable special school place for her. It said the demand for special school places outstripped the number of places available. It summarised its work to increase special school capacity. It said the demand meant it could not always place children in special schools within the timescales it aimed for.
46. The Council apologised and offered a financial remedy to recognise the impact of missed educational provision and stress.

Analysis and findings

47. I address each part of Miss J’s complaint below.

a) Failure to secure a placement in a special school

48. The Council had an immediate duty to secure K’s special educational provision from 15 January 2025 when it issued her EHC Plan. It should have done so by securing K a place in a local authority maintained special school setting. This was detailed in Section I of the plan. The Council failed to do so. This was fault.
49. Miss J complained the Council had not done enough to consult special schools. She said some consultations had not been fully followed through. She also said in some cases schools declined because of distance or suitability yet the family had made it clear they were willing to relocate. She said that point had not been reflected or considered in K’s EHC Plan.
50. The Council consulted Miss J’s preferred school first. It then consulted six other schools. I have decided it did so in a reasonable timescale.
51. Six of the seven schools said the main reason they could not offer a place was over-capacity. One school said it could not meet K’s needs. I note one school did cite distance as part of its response. However, I have decided that was not due to any fault by the Council, and the main reason that school could not offer K a place was over-capacity.
52. Taken as a whole, I have decided the Council made appropriate efforts to identify and secure a special school place for K. I accept the Council’s explanation that its failure to do so was due to high demand for special school places. I find the Council’s general work to respond to the increased demand was appropriate and therefore the impact was outside of its immediate control. For these reasons I have decided the fault was service failure, not maladministration, as explained in paragraph 4.
53. The fault caused significant injustice. This was in the form of missed special educational provision. This is because School A was not a special school. It was therefore unable to deliver the provision that K was entitled to.

b) Left K on a reduced timetable since January 2025

54. The content of K’s EHC Plan shows the Council was aware she was not in full-time education in January 2025 when it was issued.
55. The Council received further information that K was not receiving full-time education in June and July. The information was provided in the Annual Review Report, formal request for a placement discussion, and stage one complaint.
56. I find the Council should have responded to the information that K was not receiving full-time education by making a written evidence-based decision about whether it owed a Section 19 duty to arrange alternative educational provision.
57. The decision should have been based on a consideration as to whether K was receiving suitable education given her reduced timetable.
58. It should have then communicated its decision to Miss J. I have seen no evidence it did so. This was fault.
59. I have considered whether the fault caused injustice of missed educational provision beyond that identified in my analysis of part a) of this complaint. I have decided I cannot find, even on the balance of probabilities, the Council would have decided it owed a Section 19 duty to arrange alternative educational provision had it recorded a decision.
60. This is because I have decided there is not enough evidence to find the Council would have decided the provision being delivered by School A, including the reduced timetable, required additional alternative educational provision.
61. For this reasons I do not find the Council’s fault caused K injustice of missed alternative educational provision. However I do find it caused Miss J injustice in the form of uncertainty. This is because she did not get a clear Section 19 decision.

c) Refusal of a self-referral to the OT service

62. Miss J said the Council refused her self-referral for an OT assessment because one of the acceptance criteria was a place at a special school.
63. I have referred to the Council’s relevant policy. It is titled the Integrated Children’s Disability Service (OT) - Policy for Receiving Referrals and Undertaking Assessment.
64. The policy states the Council can accept referrals from families. It details the threshold criteria for assessment.
65. The Council has a record of K’s father contacting its OT service at the beginning of July 2025. The record says the Council decided not to accept the referral because K was not known to a specific social work team that works with disabled children. It recorded this meant K did not meet the threshold criteria for a self-referral.
66. The Council’s record of its reason it refused the self-referral is therefore different to Miss J’s recollection. I have decided, on the balance of probabilities, the Council refused for the reason in its record.
67. The threshold criteria in the Council’s policy does not include whether or not a child is known to a specific social work team. It does include acceptance criteria that K meets. For these reasons I find the Council did not follow its policy when it considered and refused the self-referral. This was fault.
68. I have decided I cannot say, even on the balance of probabilities, what the outcome would have been had the Council followed its policy when K’s father first made a self-referral.
69. This is because the record shows the OT service provided advice at the initial contact, and I cannot say whether it would have provided additional support had it accepted the self-referral. I also note the Council subsequently accepted a self-referral made by Miss J in January 2026. The record of this self-referral indicates K was at greater risk at that point.
70. For these reasons I do not find that the fault caused missed OT provision. However I find the fault caused injustice in the form of uncertainty.

Remedies for the injustice

71. I have found injustice of missed special educational provision for K between 15 January and 8 July 2025.
72. The Council has apologised and offered a total symbolic payment of £1,450 to remedy the injustice. I have considered this against our Guidance on Remedies. I have decided it is a suitable remedy for the injustice caused.
73. Miss J said she has already accepted the symbolic payment offered by the Council. I therefore recommend no further remedies for part a) of the complaint.
74. I have also found injustice in respect of parts b) and c) of distress in the form of uncertainty.
75. I recommend the Council apologise to Miss J for the uncertainty caused by its failure to make a decision as to whether it had a duty to provide alternative educational provision in line with Section 19, and failure to follow its policy when K’s father requested an OT assessment.
76. I have decided not to make service improvement recommendations in this case. This is because the Council publishes details of its SEND improvement programme. I have decided additional recommendations are likely to unnecessarily duplicate existing organisation-led service improvements.

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Action

77. Within four weeks of the date of my final decision the Council will:
1. Apologise to Miss J for the uncertainty caused by its failure to record a decision as to whether it had a duty to arrange alternative educational provision for K under Section 19, and for not considering the request for an OT assessment in line with its relevant policy. 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.
78. The Council should provide us with evidence it has complied with the above action.

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Decision

79. I find fault in the Council’s failure to secure a place at a special school, record a decision as to whether it owed a duty to arrange alternative educational provision, and properly consider its policy when considering a self-referral for OT support. This caused injustice of missed special educational provision that the Council has already remedied, and uncertainty for which the Council has agreed to apologise. I have ended my investigation and uphold Miss J’s complaint.

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Investigator's decision on behalf of the Ombudsman