Summary: The Council was at fault. It did not provide Mrs X’s child, Y, with a suitable education to which they were entitled or provide all the provision in their Education Health and Care (EHC) Plan. The Council has already apologised and paid Mrs X a symbolic payment to acknowledge Y’s missed education, which for the period investigated, was in line with our guidance on remedies and remedied the injustice caused. The Council has already put service improvements in place.

The complaint

1. Mrs X complained the Council failed to provide a school setting for her child, Y, from June 2024. She said the Council failed to provide Y with a suitable full-time education from summer 2024. She also said the Council communicated poorly with her. As a result, Mrs X said Y missed out on receiving a suitable education to which they were entitled which has affected their mental health and social relationships.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
5. 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)
6. 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)
7. 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

8. As explained in paragraph three above we cannot investigate late complaints unless we decide there are good reasons. Mrs X complained to the Ombudsman in early October 2025 about events starting in summer 2024. The period between summer 2024 and October 2024 is late, however there are good reasons to use my discretion to investigate from July 2024 because it is relevant to issues that are not late.
9. In early October 2024 the Council said it issued Y’s final amended Education, Health and Care (EHC) Plan. At that point Mrs X had appeal rights to the special educational needs and disabilities (SEND) Tribunal, which she did not exercise. Although Mrs X had appeal rights, I have decided it was reasonable for Mrs X not to have appealed in October 2024. This is because she had a reasonable expectation the Council would identify and secure a suitable school place for Y. The Council discussed home tuition for Y until a suitable education placement was found soon after it issued the October 2024 EHC Plan.
10. My investigation ended in mid-June 2025 when the Council issued Y’s final amended EHC Plan and Mrs X had appeal rights again to the SEND Tribunal. Mrs X did not appeal but reasonably could have done so at that point when the Council still did not name a school in section I of Y’s EHC Plan. I cannot look at her complaints about loss of education from June to October 2025 because Y’s lack of education is too closely connected to the reasons Mrs X could have raised in an appeal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

11. I considered evidence provided by the Council and Mrs X and spoke to her on the telephone. I also considered relevant law, policy and guidance and our guidance on remedies published on our website.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

13. 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 SEND Tribunal or the council can do this. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.

Appeal rights to the SEND Tribunal

14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
15. The courts have established that if someone has appealed to the SEND Tribunal or reasonably could have done so, 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).
16. 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.

Section 19

17. Council’s must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, Section 19). We refer to this as section 19 or alternative provision.
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’).
19. 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)
20. 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 parttime 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; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.
21. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Maintaining the EHC Plan

22. 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).
23. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in Section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

What happened

24. Y is of secondary school age and has special educational needs including learning difficulties, autism, school-based anxiety, social, emotional and mental health difficulties.

Background

25. Y first had an Education, Health and Care (EHC) Plan in 2021. Section F of Y’s EHC Plan included increasing their attendance at school over time. Y’s provision was school based with targeted support for listening and attention skills, memory strategies, managing emotions and reducing anxiety. Y attended a special school from 2023, and the placement initially worked well for Y. Y’s mother, Mrs X, said Y’s attendance started to deteriorate due to a change in class and classroom.
26. In March 2024 School 1 sent the Council a letter and explained it would end Y’s placement at School 1 in late August 2024 due to a placement breakdown. School 1 said Y would then no longer be on the school roll from late summer 2024. Mrs X said Y had no school setting from June 2024.

July 2024 onwards

27. In early July 2024, School 1 held Y’s annual review. With agreement from Mrs X, School 1 recommended Y’s EHC Plan was amended to name an alternative educational setting for Y because their needs had changed. The Council agreed to consult different educational placements for Y. In late August 2024 Y came off the School 1 roll.
28. In early October 2024 the Council says it issued Y’s amended final EHC Plan. In late October 2024 a Special Educational Needs Assessment (SENA) case manager, Officer 1, discussed home tuition for Y until a suitable education placement was found for them. The Council put in place one to one home tuition from December 2024. Mrs Y said this included two hours of tuition a week for approximately a term. She said Y responded well to the tuition which was mainly play based.
29. In late January and early February 2025 Officer 1 discussed Y’s home tuition with Mrs X and asked her about home education for Y.
30. The Council said its records showed communication took place between Officer 1 and Y’s tutor in May 2025. Officer 1 also contacted Mrs X in May 2025 to discuss Alternative Provision or Independent Specialist Provision for Y. The Council said after several discussions and sharing of information it agreed to consult independent schools for Y and consulted Alternative Provision providers based on Y’s interests. Mrs X said Y’s home tutoring stopped in May 2025 because the Council was considering Alternative Provision for Y and the tutor stopped attending Y’s one to one sessions. Mrs X said Y was not provided any tuition or educational provision after May 2025.
31. In early June 2025 Mrs X complained to the Council. She was concerned Y did not have an educational placement which she said was affecting Y’s mental health. Mrs X also complained about poor Council communication and said the Council ignored her emails and did not respond to them.
32. The Council responded to Mrs X’s complaint and said due to exceptional levels of work within the SENA department there would be a delay in responding to her complaint.
33. In mid-June 2025 the Council issued Y’s final amended EHC Plan. Section I did not name a specific school but said ‘specialist setting yet to be identified’. The Council gave Mrs X a letter explaining her appeal rights and how she could get support to make an appeal. She did not appeal.
34. In late September 2025, the Council sent Mrs X its final complaint response. It said it issued Y’s final amended EHC Plans in early October 2024 and mid-June 2025 and apologised for the delay in issuing Y a final EHC Plan with a named school setting in Section I. It said it would continue to monitor the school consultations. It said the Council had not met its Section 19 duty between July 2024 and December 2024 and May 2025 to late September 2025. It said Y missed 32 weeks of education until the end of the autumn 2025 half term and offered Mrs X a remedy of £3,232. It apologised for Y’s missed education. It gave Mrs X our contact details if she remained unhappy. Mrs X remained unhappy and contacted us.
35. When I spoke to Mrs X she said she had accepted the Council’s remedy offer and the Council had paid her £3,232.

My findings

Educational Provision

36. The Council was aware in summer 2024 that Y was not attending School 1 and was not on School 1 roll from late August 2024. Y did receive some tuition for approximately a term between late 2024 and spring 2025. The Council accepted in its final complaint response it had not met its section 19 duty between July 2024 and December 2024 and again from May 2025 to late October 2025. The Council accepted Y missed 32 weeks of education and has already apologised for Y’s missed education and not naming an educational placement in Section I of Y’s EHC Plan. The Council was also in breach of its section 42 duty as explained in paragraph 22 and 23 above but it did not cause a separate injustice because it was closely linked to Y’s lost education.
37. Mrs X had appeal rights in October 2024 and as explained in paragraph 9 above it was reasonable for her not to appeal at that point. Mrs X had appeal rights again in mid-June 2025 if she was unhappy with Y’s EHC Plan which she did not exercise, but could have reasonably done so because the Council had still not named a school place for Y.
38. The Council has already offered and paid Mrs X a remedy of £3,232. The Council based this remedy on a longer time period than I could investigate, as explained in paragraph 5, 10,15 and 16 above because it was not bound by our restrictions. Based on my investigation period this remedy was in line with the Ombudsman’s guidance on remedies. The apology and the financial payment remedied the injustice caused to Y.

Service improvements

39. The Ombudsman has already made service recommendations to this Council to prevent future injustice from similar fault on similar cases. These service improvements have been made during and since the events in this investigation. The Council has agreed to review its alternative provision procedures to ensure it properly considers its section 19 duty, has a system in place for record keeping its section 19 decisions and the need to act promptly to identify and arrange suitable alternative provision. On this basis no further recommendations were needed.

Communication

40. Mrs X was concerned about poor Council communication. There is evidence the Council communicated with Mrs X in October 2024, early 2025 and May 2025 about Y’s tuition, alternative provision and possible school places for Y. Although the Council may not have responded to every email Mrs X sent, that is not fault and the Council did continue to monitor the situation and had general oversight which is what we would expect.

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Decision

41. I have completed my investigation finding fault causing injustice. The Council has already remedied the injustice caused and put in place service improvements.

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Investigator's decision on behalf of the Ombudsman