Summary: Ms C complained the Council failed to provide her son (X) with an education after he was excluded from school, and it caused delays in the Education, Health and Care (EHC) plan process. We found the Council at fault for failing to adhere to the statutory timescales for the EHC plan process and for delay in its complaints handling. It was also responsible for a service failure to arrange alternative provision which was accessible to X for a school term. The Council will apologise to Ms C and make payment to acknowledge the injustice it caused her and X.

The complaint

1. Ms C complained, with the support of an advocate, about the Council’s handling of her son’s (X) education. She said it failed to:
• act to prevent X’s exclusion from school, which was avoidable;
• provide X with a suitable education or alternative provision from April to 2025 to the end of the academic year;
• adhere to statutory timescales for the EHC plan process; and
• respond to her complaint in line with its policy.
2. Ms C said, as a result, X experienced a loss of education and she experienced distress and uncertainty.

Back to top

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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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) 
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)

Back to top

How I considered this complaint

7. I considered evidence provided by Ms C, her advocate, and the Council as well as relevant law, policy and guidance.
8. Ms C, her advocate, and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Relevant law and guidance

Education, Health and Care plans

10. 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. 
11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.

12. 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).  
13. There are appeal rights to the SEND Tribunal against council’s decisions. This includes 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.

Alternative provision

14. 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.
15. 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)
16. 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;
• 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; and
• keep all cases of part-time education under review with a view to increasing when the child is able.
17. 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.

Council’s complaint policy

18. The Council says it has a two stage complaints policy. It will respond to:
• Stage one complaints by acknowledging complaints within five working days and provide its response within 10 working days; and
• Stage two complaints by acknowledging complaints within five working days and provide its response within 20 working days.
19. Its policy says it may take longer to respond in some circumstances. In such cases, a response may take up to 10 days longer and the complainant will be informed of the reasons.

What happened

20. Ms C’s son, X, has special educational needs which impacts his ability to receive his education. He was on roll with a mainstream school (School Y) for the 2024/25 academic year.
21. In November 2024 Ms C applied to the Council for an EHC needs assessment for X. The Council agreed to complete the assessment, and subsequently to issue an EHC plan. No plan had been issued by the statutory deadline in April 2025.
22. In April 2025 an incident occurred with X in School Y. The school decided to permanently exclude X. It informed the Council’s exclusion team and told Ms C about her appeal rights.
23. The Council issued a draft EHC plan for X in May 2025. It was consulting with school placements. However, no mainstream school offered X a place. It subsequently decided X's case should go back to its panel to consider if a specialist placement was needed.
24. The Council made a referral to its Pupil Referral unit (PRU) to provide X with alternative provision. However, there were no spaces available, and X was placed on a waiting list.
25. In late June 2025 the PRU wrote Ms C to invite X to an initial meeting. This was with the aim of providing him with alternative provision. However, at the meeting the PRU said it did not believe it was appropriate for X to start until his EHC plan had been issued, and it would seek advice from the Council. The placement was subsequently set up for September 2025, or until a special school placement could be found.
26. Ms C complained to the Council about its delayed EHC plan process and its delay in arranging alternative provision for X since his exclusion from School Y. She said the exclusion may not have happened but for the delays. She also explained the PRU would be unsuitable at the time as it would require another transition for X which he finds challenging.
27. The Council’s education panel considered X’s case shortly after. It agreed a specialist placement was needed, and consultations to school were sent out. Ms C shared her parental preference.
28. In July 2025 the Council arranged for a tuition provider to provide 10 hours of face-to-face tuition for X in a hub. However, the provider told Ms C she had to be present for all lessons.
29. Ms C complained to the Council again about its delayed EHC plan process, and said it had failed to provide X with an education since his permanent exclusion. She also said the offer of tuition was not full-time or broad enough, and she was asked to be present for all lessons which she was unable to do.
30. The Council said it would refer X to a team which support children not currently placed in an education setting. It also updated her on its school consultations and suggested it would finalise the EHC plan with only the type of placement listed.
31. In mid-July 2025 the Council issued X’s final EHC plan which listed a specialist placement was required, but no school was found as yet. This set out Ms C’s appeal rights.
32. In response to Ms C’s complaint, the Council:
• acknowledged the delay in its EHC plan process. It explained it had decided to delay the issuing of the plan until it found a school placement for X.
• explained its Special Educational Needs Assessment and Review service (SENAR) which dealt with X’s EHC plan was not responsible for arranging alternative provision after X’s permanent exclusion in April 2025. She would therefore have to make a separate complaint about its Exclusions Team; and
• said its SENAR team would arrange alternative provision from July 2025 when it issued X’s EHC plan. It had arranged for this to take place, but Ms C had asked for the Council to delay this until August 2025. It acknowledged she had other commitments but explained a responsible adult had to be present due to safeguarding.
33. Ms C escalated her complaint. She disagreed she had to submit a new separate complaint about its handling of X’s alternative provision prior to July 2025. She also said the offer of alternative provision after July was not suitable or accessible to X as she was unable to be present as required by the provider.
34. The Council provided its final response to Ms C in August 2025, and a further response in September 2025. It found:
• it had failed to adhere to the statutory timescales for the EHC plan process. However, it had provided additional funding to the school since November 2024 and did not agree the delays caused X’s exclusion as this was a school decision;
• it had made a tuition offer in June 2025 which was accepted, but it takes time to arrange this and find a tutor; and
• from July 2025 it had arranged tuition for X to start, but Ms C had asked for this to be delayed. It also said she had since told the provider she was happy for X to wait for provision to start as a PRU placement had been arranged for September 2025.
35. Ms C remains unhappy with the Council’s handling of X’s education and asked the Ombudsman to consider her complaint. Since September 2025:
• Ms C said educational provision has been arranged for X, but she continues to have issues with this;
• the Council explained it had a waiting list in place from January 2025 for children who are not accessing school including those who are excluded. It has worked hard to manage demand and increase capacity to provide educational offers and support.

Analysis and findings

X’s School exclusion

36. Ms C said X’s school exclusion may have been prevented if the Council had not caused delays in the EHC plan process.
37. I found I cannot say whether X would have been excluded but for delays in the EHC plan process. This is because I cannot say whether the events around the exclusion would have happened if X’s EHC plan was in place sooner.
38. I was also mindful the decision to exclude X was made by the school and this carries appeal rights to the school’s governing body. I have therefore not found the Council at fault for causing X’s school exclusion.

The EHC plan process

39. The Council accepted it had failed to adhere to the statutory timescales for the EHC needs assessment process. I acknowledge its reasons for the delay included challenges in finding X a suitable school placement.
40. I have found the Council at fault for its failure to issue X’s final EHC plan by April 2024 which was when the statutory deadline expired. The delay lasted for three months as it issued its plan for X to Ms C in July 2025 setting out her appeal rights. I am satisfied this caused her some distress and uncertainty and delayed her appeal rights which the Council’s complaints process has not properly addressed.
41. I cannot consider any concerns about the contents of the plan, or the fact only the type of placement was listed. This is because Ms C had a right to appeal to the SEND Tribunal. She decided to work with the Council through mediation to resolve the disagreements.

X’s alternative provision

42. I have considered the Council’s handling of X’s education from April 2025 when he was excluded from his school placement until the end of July 2025. This was when his EHC plan had been issued and the academic year ended.
43. X was excluded from School Y in April 2025. The Council subsequently had a duty to provide X with an education through other means such as alternative provision by the 6th day following the exclusion, starting from the end of April 2025.
44. The Council agreed X did not have any alternative education available for a seven-week period after the exclusion. I acknowledge this was due to a high level of demand on the Council’s services and lack of space within a PRU. I also understand the Council has taken steps to mitigate this and increase capacity. However, I found the Council had a duty to provide the educational provision to X, its inability to do so was therefore a service failure.
45. I found the Council’s service failure continued until the end of the 2024/25 academic year. This is because:
• the Council’s PRU offered X an initial meeting in early July 2025. However, it was clear to the PRU that it was in X’s best interest to first start when his EHC plan had been issued. It was therefore arranged to start from the 2025/26 academic year; and
• the tuition the Council arranged from mid-July 2025 was inaccessible to X. This was because Ms C was required by the provider to be present at all lessons, which she informed the provider and the Council she was unable to do until late in the summer break. I have not seen evidence the Council properly considered this issue or made other arrangement to enable the provision to be delivered.
46. I acknowledge the Council’s tuition offer of a total of 10 hour per week would not normally be considered a full-time education. However, considering the limited period this was to be available for, I am not satisfied the limited short-term offer was fault. However, it failed to make the offer accessible to X, who therefore experienced a loss off education for all of the summer term 2025.
47. I understand Ms C has experienced new issues with the Council and X’s education from the start of the 2025/26 academic year. However, I cannot consider this as it was not part of her initial complaint. She may decide to make a new complaint to the Council about matters which occurred from September 2025.

Complaints handling

48. I found some fault in how the Council handled Ms C’s complaint, which caused her some unnecessary time and trouble. This is because:
• its stage one complaint response said she had to raise a separate complaint about its Exclusions Team’s handling of X’s alternative provision. I would not expect a complainant to have to raise separate complaints to different departments within the Council’s education role. Rather, the SENAR team should have obtained the views of the Exclusion team and included this in the Council’s response; and
• its final complaint response said its Exclusions Team would respond to her concerns about the Council’s handling of X’s alternative provision prior to the EHC plan being issued. This response was subsequently received a month later. I found it therefore took the Council two months to fully respond to her stage two complaint. This was longer than the timescales set out in its policy and I have not seen good reason this could not have been provided in its August 2025 complaint response.

Service improvements

49. I have not made service improvements on this case. This is because the Council has agreed to and carried out recommendations on other cases we have investigated for the same period. Including, its duty to adhere to the statutory timescales for the EHC plan process and ensuring children who are excluded from school receives an education.

Back to top

Action

50. To remedy the injustice the Council caused to Ms C and X, the Council should, within one month of the final decision:
1. apologise in writing to Ms C to acknowledge the injustice its faults and service failure caused her and X;

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.

2. pay Ms C £2,400 to acknowledge the loss of education X experienced for the summer term of the 2024/25 academic year due to the Council’s service failure.
3. pay Ms C £300 to acknowledge the distress and uncertainty the Council’s delayed EHC plan process caused, including a delay to her appeal rights.
4. pay Ms C a further £100 to acknowledge the frustration its poor and delayed complaints handling caused her.

In total the Council should pay Ms C £2,800.

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

Back to top

Decision

52. I have completed my investigation with a finding the Council was responsible for a service failure and some fault, which caused Ms C and X and injustice. The Council will apologise and make payment to Ms C to acknowledge the impact this had on them.

Back to top

Investigator's decision on behalf of the Ombudsman