Summary: We found fault on Mr Y’s complaint about the Council failing to ensure his son received provision under his Education, Health, and Care plan, suitable alternative education when tuition stopped, and it failing to communicate with him properly. His son missed provision, there was a delay deciding to make suitable alternative education and then providing it, and poor communication. The Council agreed to send an apology, make symbolic payments, and review procedures.

The complaint

1. Mr Y complains about the Council failing to:
1. ensure his son, Z, who has an Education, Health, and Care plan (EHC plan), received the provision it set out;
2. provide adequate, suitable alternative education when it cancelled his tutoring sessions; and
3. communicate properly with him.
2. As a result, his son lost a large amount of provision, suffered a loss in confidence, and suffered anxiety. The family was caused stress and were put to the time and trouble of trying to get him the support to which he was entitled. It placed the family under strain, both financial and emotional.

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The Ombudsman’s role and powers

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

8. I have not looked at events complained about which happened before September 2024. This is because Mr Y complained to us in September 2025 and the law views this as a late complaint. I took account of Mr Y’s arguments about why I should exercise discretion to investigate earlier than September 2024 which included: the continuing act of a service failure that started much earlier; the impact on the family as a whole; his attempts to resolve the issues directly with the Council from 2023.
9. Having considered these, I am not satisfied these are good reasons for me to exercise discretion to investigate any earlier complaint now. This is because while the problems he faced were ongoing, he could have complained to the Ombudsman about them earlier at any time. Over the years, his concerns grew and changed to include what was happening when the college was named in the EHC plan, for example. There has to come a point when attempts to resolve issues must end because otherwise, the risk is they can go on indefinitely which has real evidential implications in terms of investigations. References to events before September 2024 are given to help put the complaint into context.

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How I considered this complaint

10. I considered evidence provided by Mr Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of draft decision to Mr Y and the Council. I considered their responses.

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What I found

Education, Health and care plans

11. A child or young person with special educational needs may have an 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. 
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 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. 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 show appropriate oversight in gathering information to fulfil their legal duty. As 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. 

Alternative provision

14. Section 19 of the Education Act 1996 says councils must arrange suitable alternative educational provision when it finds 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. 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.
16. If a child has an EHC plan, the council also has an ongoing duty to arrange the support guaranteed by the plan. This might not always be possible, such as where the special educational needs (SEN) support is designed for the child’s normal classroom setting.
17. 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 parents.

Education other than in a school (EOTAS)

18. If a school setting, for example, is not appropriate for a child or young person, and the parent decides not to home educate, a council can arrange for any special educational provision they require to be delivered somewhere else and set this out in an EHC plan. The EHC plan will reflect what special educational provision is needed. The council would be responsible for continuing to secure and fund that provision. (Children and Families Act 2014, section 61)

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What happened

19. In 2023, Mr Y’s son, Z, received a custom made education package for 25 hours tuition a week, including core subjects, and additional interests. This was provided as EOTAS.
20. Mr Y complains the Council failed to meet its duties under Z’s later EHC plan and reduced his tuition from 25 to 10 hours a week before stopping it completely in February 2025 without notice. As a result, Z was without education for more than five months. Mr Y is unhappy as Z needs to repeat a year because of the Council’s failure to ensure he had 1:1 support at the named college. Throughout, he complained communication with him was poor and meetings cancelled with no notice.
21. I summarise some of the key dates:

• September 2024 to February 2025: During this period, the Council confirmed Z received only four hours a week tuition. One tutor provided English and French. It said another 11 hours were offered with a different tutor, but this was refused by Mr Y’s partner. I have seen a copy of an email Mr Y’s wife sent the Council which was about its plan to have one tutor teaching several subjects. She wanted different tutors for each subject as Z would get bored with the same one all the time.

Records show the Council chasing the college about its failure to respond to consultation and telling Mr Y what it was doing.

• October: Mr Y asked for a personal budget, but this was deferred as Z still had an educational offer. More tutors were found.
• December: The Council approved a college placement to start in February 2025 which was named in his EHC plan. This was sent to Mr Y.
• January 2025: The Council told Mr Y his son would start at the college the following month. The college was confident it would have staffing in place on time. Mr Y’s wife wrote to the Council about its failure to answer their queries. An internal email noted the current timetable was ‘massively reduced’ and Mr Y was still waiting for a provider to make contact with them. It also raised the issue of transition planning meetings.
• February: Tuition stopped because the college was named in Z’s EHC plan. He was due to attend college the same month. The Council pointed out once named, the college became responsible for delivering Z’s education.
• February to May: The college was named in the EHC plan, but Z was not receiving the education package. The 1:1 support was not yet in place. This was because the member of staff at the college who would do it, left. The college struggled to find a replacement. Mr Y told the Council Z would not attend until the support was in place. The college confirmed Z had not returned in March. Mr Y said this ended because the Council failed to authorise and fund it further. The Council explained it worked with the college to secure the 1:1 support but, accepted it failed to secure it in time for Z’s transition to the college.
• May: The Council used its section 19 powers and agreed to urgently reinstate tuition after meeting Mr Y who asked Z to start Year 9 again in September. This was because the current academic year was almost over. Funding for 1:1 was agreed and made available to the college so it could recruit a member of staff.
• June: The Council met Mr Y and agreed four hours tuition a week would start. A provider was asked to supply tutors for extra subjects, occupational therapy would do an assessment the following month, and it agreed Z would restart Year 9.
• July: From January, Mr Y funded math’s tuition privately for Z and gym attendance to keep him engaged. Mr Y provided evidence he paid £19.99 a month for the tuition. He paid in cash for a local gym during this period and has no receipts. The educational psychologist report noted from January to July, Z had a period without education due to problems with his EOTAS package and home tuition.
• May to September: The Council said tuition was reinstated and covered the subjects Mr Y wanted. It also arranged physical activities for him (climbing) and the support from a teacher supplier which both continued over the summer period. This was to help mitigate the delayed start at college. It also claimed it held regular, scheduled meetings with him during this period. A payment was offered, and accepted, for the loss of education during this period. In the six weeks before he went to the college, Z received English tuition.
• September: Z started at the named college full time.

22. The Council accepted:

• Provision for Z was inconsistent. He received 10 tuition hours a week for 12 months;
• There was delay and disruption securing a full-time placement and consistent provision; and
• Communication deteriorated significantly in 2025 but had been consistent until December 2024. Due to sickness, the EHC plan coordinator missed the annual review which was not covered. A new one was later allocated to Z when the absence was going to be long term.

23. As a result of these failures, the Council offered £500 for missed education from February 2025 under its complaints procedure. This was based on one term of missed education. There is no information about this being paid.
24. Z is now attending the college full time, and the annual review has happened.

My findings

Complaint a): failure to make provision

25. I found fault on this complaint for the following reasons:
1. Z should have received 25 hours a week under his package but only received four hours a week tuition from September 2024 to February 2025. He lost 21 hours a week provision for about six months.
2. Z received no provision for a period of about three months from February to May 2025.
3. From May to September, the Council said tuition was reinstated, which continued through the summer.
4. On balance, I am satisfied Z was also without provision from May to July, a period of two months. This is based on what the educational psychologist said in her report. This said Z was without provision until July.
5. I am satisfied there was some provision from July until Z started at the college. This included climbing activities and 15 hours a week teaching provision for two months.
6. On balance, having reviewed all the evidence, I am satisfied that from September 2024 to July 2025, there were periods when Z received either no provision at all, or provision substantially less than he should have received. These failures are fault.
7. The fault found caused injustice to Mr Y and Z. There was a loss of provision Z should have received as well as the stress and frustration this caused the family. There was a long period of uncertainty about whether the provision he should be receiving would ever be made.

Complaint b): failure to provide suitable alternative provision

26. I found fault on this complaint for the following reasons:
1. The Council decided to use its section 19 duty to arrange suitable alternative educational provision for Z. It had to arrange it based on Z’s individual needs. It had an ongoing duty to arrange the support set out in his EHC plan.
2. There was no information showing the decision to provide alternative education under section 19 duty or why the Council decided to use it in May and not sooner.
3. Support was not reinstated until July, about two months after it had reached this decision. No information was sent explaining why it took this long to arrange.
4. The fault caused injustice to Mr Y and Z. There was a lost opportunity to exercise this duty sooner. There was uncertainty about what might have happened had it done so sooner and whether the provision it eventually arranged over the summer could have been in place earlier. There was also frustration for Mr Y that this was not done sooner.

Complaint c): poor communication

27. The Council has already accepted there was some poor communication with Mr Y so I do not intend to investigate this complaint further. On the basis of the Council’s acceptance, I found fault on this complaint.
28. The injustice to Mr Y was uncertainty about what, if anything, the Council was doing as well as adding to his sense of frustration.

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Action

29. I considered the following:

• our guidance on remedies;
• the offer the Council has already made of £500, although I understand no payment was made. If this is incorrect, this should be deducted from any final payment agreed;
• the climbing provision the Council made over the summer costing £875 and alternative provision for the same period (15 hours a week from June to August). I took account of the provisions made when assessing the termly level of payment;
• the gym membership it paid for during the financial year 2024/2025 of £200. As the financial year ended in April 2025, I have assumed Mr Y paid the gym fees from then until July (four months);
• Mr Y’s argument I should take account of the fact Z was kept back a year. I considered this and decided to look at it in terms of education lost. This avoids duplication of a remedy;
• I also considered Z’s special educational needs; and
• the time involved.

30. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr Y a written apology for its failure to: make full provision for his son from September 2024; show why it decided to provide alternative education provision; show why it did not consider providing alternative education provision sooner; communicate properly with him.
2. Pay £3,300 (3 terms x £1,100) for the provision Z lost.
3. Pay £139.93 (7 months x £19.99) to reimburse Mr Y for the private tuition payments.
4. Make a goodwill payment of £75 for the gym fees.
5. Pay £300 to Mr Y for the distress caused by having Z at home without the support needed.
6. Review why full provision was not made from September 2024 and prepare an action plan which shows the steps it will take to ensure these failures cannot be repeated in future.
7. Review why it did not consider making alternative education provision under section 19 sooner.
8. Remind relevant staff of the need to record decisions and reasoning about making alternative education provision.
9. Review why there was a delay in providing alternative education following its decision to provide it and act to ensure this delay cannot be repeated in future.
10. Review why there were failures in communication and act to ensure this cannot be repeated in future.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I found the following on Mr Y’s complaints against the Council:

• Complaint a): fault causing injustice;
• Complaint b): fault causing injustice; and
• Complaint c): fault causing injustice.

33. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman