Summary: We upheld a complaint from Miss X finding the Council did not do enough to try and secure education for her son, when his school could not meet his special educational needs. We find this resulted in a significant loss of education to Miss X’s son, which was an injustice. The Council has accepted these findings and agreed action to remedy the injustice and improve its service to try and prevent a repeat.

The complaint

1. Miss X complained the Council failed to provide education to meet her son’s special educational needs, set out in an Education, Health and Care (EHC) Plan. Miss X said the Council agreed in April 2024 that her son, Y, needed a specialist school. But he remained on the roll of a mainstream school, receiving only around one hour education a day. The Council did not arrange for him to begin attending a specialist school until September 2026.
2. Miss X said Y had therefore lost out on the specialist education provision he needed. She also said having Y at home increased the stress she was under when meeting his needs.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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 by the council. We may decide service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. (see R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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)
6. The law says 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)
7. The law also says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter (or has had such rights). 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)
8. 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.
9. If 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 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 did and did not investigate

11. Miss X asked us to consider the education provision made for Y after he began attending a mainstream primary school, entering its Reception year in September 2023.
12. As I explained in paragraph 6, the law usually prevents us from investigating late complaints. Miss X did not complain to us until September 2025. So, I had to consider any complaint she made about events before September 2024 as late.
13. I decided to use my discretion to look at events from April 2024 onward. During that month the Council issued Y with an Education, Health and Care (EHC) Plan. I considered this opened a new chapter in his education. Miss X expected the Council to ensure Y would receive the education provision set out in his Plan. This included finding a specialist school place for him.
14. In July 2025 Miss X complained to the Council it had failed to provide Y with education in line with his Plan, and it had not found him a specialist school place. I understood Miss X did not complain sooner as she allowed the Council some time to make good on its commitment to find a specialist school for Y. I considered it would be unfair for us to penalise Miss X for showing some patience with the Council before complaining.
15. However, I did not consider my investigation could extend to the time before Y received his EHC Plan in April 2024. I understood Miss X’s concern that Y’s school was never the right fit for him given his needs. But I lacked evidence the Council had any reason to consider that might have been the case when he began his education there. I also considered Miss X could have complained sooner about events before April 2024 when fundamentally different facts applied to Y’s education, as he did not have an EHC Plan.
16. So, I found no good reason to investigate the Council’s actions before April 2024.
17. Another potential barrier to this investigation was that Miss X had appeal rights to the Tribunal. She could have appealed in April 2024 that Y’s EHC Plan did not name a specific specialist school. The Plan said Y needed a placement in a specialist school but would remain at his mainstream school until the Council found one.
18. However, I found there were good reasons Miss X did not appeal. Because the Council committed to search for, and locate, an alternative school for Y, she saw no need to appeal. I thought this reasonable in the circumstances.
19. This was also after noting that Miss X has some vulnerability. She had limited literacy skills and needed help making her complaint. I considered this impacted her ability to navigate the complexities of the legal and administrative landscape relevant to this complaint and summarised below.
20. Also, even if Miss X had appealed in April 2024, that would only have been about Y’s placement. An appeal would not have removed any duty on the Council to make available to Y the provision set out in his Plan for so long as he remained at the mainstream school. Nor would it remove from the Council a possible duty to secure education in line with Section 19 of the Education Act 1996. These matters were at the crux of her complaint.
21. Further, I noted in June 2025, after the Council issued Y with an updated EHC Plan, Miss X, acting on advice, did make an appeal about his placement. The Council conceded the appeal in October 2025, amending Y’s statement to name a specific specialist school from September 2026.
22. I did not consider this development prevented me looking at Y’s education provision to the end of the academic year, July 2025, for the reasons explained in paragraph 20. However, I decided my investigation could not look at the Council’s education service to Y after July 2025. This was because we cannot investigate events that happen after someone complains to us. While I could investigate a small portion of the service provided to Y during the 2025-26 academic year (for September 2025), I did not think this appropriate. I thought it more practical for any complaint about the education Y received during the current academic year (2025-26) to be considered separately. I return to this matter in paragraph 63.

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How I considered this complaint

23. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
24. I gave Miss X and the Council chance to comment on a draft version of this decision statement. I took account of any comments they made, or further evidence they provided, before putting this statement in its final format.

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What I found

Relevant legal and administrative considerations

Relevant Law and Guidance

25. 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 the arrangements made to meet them. The EHC Plan has different sections. These include Section F which details the child’s education provision and Section I which names their education setting.
26. The council has a duty to make sure a child 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 council owes its duty to arrange this provision personally to the child and cannot delegate it. 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)  
27. 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. But we consider councils should have enough oversight to fulfil their legal duty. So, we expect them to: 

• check special educational provision is in place after issuing a new or amended EHC Plan, or when an education placement changes; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that provision is not in place. 

28. Section 19 of the Education Act 1996 says a council must arrange suitable alternative educational provision when it finds that a child cannot attend school because of:

• a permanent exclusion;
• an illness; or
• for any other reason making the school inaccessible to the child.

29. If a council discovers a child missing from school, 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. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
30. The Courts have held the key test for the Council when deciding whether to make alternative provision is if the child has education “reasonably available and accessible” to them. (see (R(R) v Kent County Council [2007] EWHC 2135 (Admin) and R(DS) v Wolverhampton City Council [2017] EWHC 1660 (Admin)).
31. Councils should consider any attempts made by schools 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 time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
32. Government guidance (Working together to improve school attendance) states all pupils of compulsory school age have a right to full-time education. In 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 forms part of a re-integration package. But councils must not consider part-time timetables as a long-term solution. 

The Council’s Section 19 policy

33. The Council has a policy which it publishes online and explains how it will carry out its duties under Section 19 of the Education Act 1996.
34. The policy states its duty under Section 19 applies “if there is no suitable education available to the child which is ‘reasonably practicable’ for them to access”.
35. It says the Council expects schools to let it know about any child receiving less than 25 hours education a week. For those pupils missing education who have an EHC Plan, the Council says that its Special Educational Needs and Disability (SEND) team will have responsibility for carrying out the Council’s Section 19 duty. For other pupils the responsibility lies with its Pupil Reintegration Team (PRT).
36. The Council says: “the appropriate team will lead and facilitate the work with the school and the family to assess any underlying needs and recommend reasonable adjustments and provision to meet those needs”. The policy says this in turn can involve other teams such as its early help service or its Working Together Team.
37. For cases referred to the PRT the policy sets out a five-step approach to intervention. Such cases also go to a Panel which will decide on providing alternative provision in individual cases.
38. On the Council’s website there is more detail about the service provided by the PRT and the role of pastoral support plans (PSPs). The Council encourages PSPs for pupils with behavioural issues at school. A PSP may provide a route for a school to obtain extra resources to support a pupil. This can include in turn a referral to the Council’s Behaviour Outreach Support Service.

The key facts

39. Y is a child with special educational needs. He entered a mainstream primary school in September 2023 in its Reception class. The school found that Y had behaviours associated with his needs which caused risks to him, to his classmates and teaching staff. So, it soon began teaching Y on a part-time timetable, providing two-to-one staffing. He attended school for just over an hour each day. It asked the Council to assess Y’s needs to see if he needed an EHC Plan.
40. In April 2024, the Council issued Y with an EHC Plan. Before completing the Plan, the Council had come to the view Y needed a specialist school placement. It consulted six specialist settings but none of those could offer him a place. Section I of Y’s Plan said therefore that Y would remain in the mainstream school but “transition to a specialist school [..] when an appropriate placement is sought”. I assumed the word ‘sought’ was a misprint and the Council meant to say ‘found’.
41. After issuing Y with his Plan, the Council periodically undertook further searches for a specialist school place. None were successful. Meanwhile Y’s school continued to teach him as before, on a part-time timetable providing around one hour education a day.
42. I saw emails between the Council SEND Caseworker and the school sent in October 2024, where they discussed Y’s needs. The Caseworker advised the school to complete a PSP which it said could then lead to support from its behavioural outreach service. The school completed a PSP and sent this to the PRT. But the PRT said that it could not meet Y’s needs and so no service resulted from that referral.
43. There was also discussion about alternative education provision for Y. The Council offered some general advice on what provision might benefit Y. But it would not recommend any specific provision and said the school had to arrange that. It told the school that it must continue to make its “best endeavours” to keep teaching Y. It said Y was to remain enrolled at the school until it had found a specialist placement.
44. In December 2024 the school updated the Council that its search for alternative provision had so far, been unsuccessful. It had contacted placements, but they had either not responded or said they could not meet Y’s needs.
45. Next, in January 2025 school staff visited a specialist school to see if it could provide any support in teaching Y. The school received advice on some teaching strategies to support Y. But it did not agree to a suggestion made by staff from Y’s school that they might accompany him to the specialist school to use some of its facilities.
46. In March 2025, when Y’s SEND Caseworker changed, his school again briefed the Council on its unsuccessful attempts to secure alternative provision.
47. In July 2025 Miss X complained at the continuing lack of a specialist school place for Y. She was unhappy he remained enrolled at a school which could not meet his needs.
48. In its reply, sent in August 2025, the Council explained more about the consultations undertaken to find a specialist school place for Y. It said it would continue to search and meanwhile it had tried to set up meetings with Miss X and the school to “consider education options” for Y. It also offered to undertake an early help assessment to offer Miss X more support in meeting Y’s needs.
49. A further exchange followed in August and September. Miss X thought the Council had unfairly tried to shift responsibility for meeting Y's education needs on to her. The Council again defended its consultations with specialist schools. It noted also that by this time, Miss X had appealed a new version of Y’s Plan to the Tribunal (the appeal concerned Section I only). It told her that it wanted to arrange a “suitable interim package” of education for Y.
50. In comments in response to my enquiries, the Council has said that:

• Its SEND team maintained case management for Y throughout the time investigated and engaged throughout with his school. It undertook a “coordinating role consistent with its responsibilities”;
• the SEND team could not direct education settings to specific alternative education providers because of procurement rules. It did not want caseworkers to give any real, or perceived, preference to any specific alternative providers;
• it did not consider it inappropriate its caseworker referred Y’s school to its PRT. It said that even though the SEND team had the coordinating role, this did not prevent a school from seeking support from this service.

51. The Council has also confirmed it took no part in the contacts between Y’s school and the specialist school referred to in paragraph 45.

My findings

52. I found that from April 2024 onward all parties agreed that Y’s school could not meet his needs and he needed a specialist school placement. The Council could not locate a suitable placement then, nor later, when it searched for a place. I saw evidence of multiple consultations with specialist schools and so I accepted officers made repeated efforts to look for a suitable school place for Y. But their failure to find a specialist school place for Y, during the time under investigation, still resulted in a finding of fault. But I accepted the cause was a service failure rather than any act of omission.
53. I next sought to find out what consideration the Council gave to Y’s education needs given his circumstances. I noted throughout the time in question the Council knew Y only attended his school for around an hour a day. And that he had already been on that part-time timetable before it issued him with an EHC Plan.
54. Government guidance makes clear that this is unacceptable. Further, the law is clear that under Section 42 of the Education Act, the Council’s has responsibility to ensure a child has access to the provision set out in their Plan. Also, if a child does not have full-time education available and accessible to them (whether or not they have an EHC Plan), it must consider making provision under Section 19 of the Act.
55. In applying these duties it is understandable, reasonable and desirable the Council should liaise with a child’s school, where that child is missing education. That can include liaison to try and identify alternative provision for a child who cannot attend school full-time. But if following that liaison with the school, the Council finds there is still no full-time education available and accessible to the child, then it must step in. And must do so with urgency.
56. Under the terms of the Council’s Section 19 policy, it was the role of its SEND team to do this. But the facts in this case suggested the SEND Caseworker did not understand it was their responsibility to take such a lead. At no point was it clear they actively considered the Council’s legal duties.
57. Accompanying this lack of a clear record of how the Council considered its legal duties it was also evident the SEND team took no active role in the search for alternative provision for Y. This was even after it knew, from December 2024, the school had achieved no success in locating a placement.
58. I did not accept that its officers could not become involved in the search for alternative provision because of procurement concerns. The law is clear the Section 19 duty falls on the Council not individual schools. So, it has to find a way to discharge its duty, which means it cannot put all the onus on schools to do so. This is something the policy anticipates for pupils without EHC Plans. The policy refers to a Panel that considers cases referred via its PRT which can decide for the Council on making alternative provision. The Council has presumably found a way in those cases to work around any procurement concerns.
59. I recognised the SEND team suggested Y’s school contact its PRT as part of its efforts to support Y. While I could not see how this accorded with its Section 19 policy, I accepted there may still have been some benefit to the referral. But I noted the SEND team took no active role in the referral. It did not talk to the PRT to see how both teams might work together to support Y. Similarly, while the papers mentioned some awareness of Y’s case by the ‘working together team’ this too appeared to have acted in its own silo, contrary to its name. We will not interfere in how the Council designs its services. So, it is the Council’s choice to provide different specialist officers and teams to support children with special educational needs. But none of them should lose sight of the Council’s fundamental responsibilities and duties to children who are not receiving a full-time education. The most troubling aspect of this investigation was that nothing I read before Miss X complained suggested any officer had significant concern for Y’s situation. None of their communications suggested any sense of urgency in trying to meet his needs.
60. I recognised that by the end of the events covered by this complaint, in summer 2025 the Council SEND team did make some active efforts to involve other services. Specifically, encouraging an early help assessment. I understood that later, in Autumn 2025 a series of meetings attended by professionals took place with the aim of offering more support to Miss X and Y. But for the time I investigated that was too little, too late. I found it at fault for not doing more to ensure Y had some greater access to education between April 2024 and July 2025.
61. Miss X and Y suffered injustice resulting from the faults detailed above. Y missed a significant portion of the specialised education he should have received during the latter part of his Reception Year and Year One of his education. While Miss X experienced more stress and pressure in supporting Y than would otherwise have been the case.
62. I recommended action I wanted the Council to take to remedy Y’s injustice, which it agreed to. Before doing so, I consulted the Ombudsman’s published guidance on remedies. This suggests that where a child has lost education provision, we should recognise the impact on both the child and parent by recommending a symbolic payment. We will calculate that using a tariff of between £900 and £2400 a term, deciding on the exact figure after taking account of relevant considerations specific to each case. Here, I took account that:

• Y received some limited education during the time in question as his school provided around one hour teaching a day. However, that was not in the specialist environment needed;
• Y’s young age offered some hope he may in time ‘catch up’ from the missed provision in his early years;
• that even if the Council had not acted with fault, it may not have proven possible to secure full-time alternative provision for Y given his needs.

63. Finally, I stress my investigation only looked at the time between April 2024 and July 2025. I was conscious that during the 2025-26 academic year also, Y had been without a specialist school place. So, Miss X may consider his education needs had continued to go unmet. If so, she needed to make a separate complaint about that. I asked the Council that if she did so, that it should be mindful of our findings in this investigation and the approach taken to provide a remedy.

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Agreed action

64. The Council has agreed that to remedy Miss X and Y’s injustice. It will, within 20 working days of this decision:
1. provide a written apology to Miss X accepting the findings of this investigation. Our guidance on remedies sets out our expectations for how organisations should apologise effectively. The Council will consider this guidance in making the apology recommended;
2. make a symbolic payment to Miss X of £6000. In line with the approach set out at paragraph 62 above I considered a payment of around £1500 a term fair to recognise the impact of Y’s lost provision on both him and Miss X. I considered the payment should extend to four terms.
65. In addition, the Council agreed to consider what lessons it could learn from this complaint. It agreed that within three months of this decision it will:
1. draft specific advice for its SEND caseworkers to cover how it expects them to discharge its duties towards children with EHC Plans who are not receiving a full-time education. This is to ensure they address such cases with urgency; actively work with schools and parents to explore alternative provision and involve other relevant teams within the education service (such as the Pupil Referral Team or Working Together Team) where appropriate. The advice should also remind officers of the need to keep clear records of their consideration of the Council’s Section 19 duties;
2. it should deliver an in-person briefing for all its SEND caseworkers further to drafting the advice at a) above to go over its content. This can be a stand-alone event or part of a pre-existing commitment such as team meeting or training event already scheduled.
66. The Council will provide us with evidence when it has complied with the above actions.

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Decision

67. For the reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss X and Y. The Council agreed action that I considered would remedy their injustice. So, I completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman