Summary: The Council was at fault for delay in consulting schools and its poor communication. It also failed to ensure Y received any special educational provision between September 2025 and May 2026. It has agreed to apologise to Miss X and make a payment to acknowledge Y’s loss of education provision, and the frustration and uncertainty caused. It has also agreed to review its process for overseeing part-time timetables.

The complaint

1. Miss X complained the Council failed to ensure her child Y received a suitable education. She said it failed to respond to consultation responses and to provide an appropriate education whilst it searched for a special school. This has caused them distress and frustration and left Y without appropriate support.

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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 recommend 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). Miss X complained to us in October 2025. I have considered what happened from when the Council finalised Y’s EHC Plan in August 2024, as this is relevant to subsequent events. If Miss X had concerns about what happened before that date it was open to her to come to us sooner.
4. 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).
5. 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)

Under the information sharing agreement between the Local Government and

Social Care Ombudsman and the Office for Standards in Education, Children’s

6. Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. I gave Miss X and the Council an opportunity to comment on a draft of my decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and care Plans

9. 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 which include section F: the special educational provision needed by the child or young person and section I: the name or type of educational establishment. We cannot direct changes to the sections about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
10. 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.
11. The courts have established that if someone has appealed to the SEND 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).
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)  

Alternative education provision

13. Councils 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 education provision.
14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
15. We have published 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;
• 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; and
• 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.
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.

What happened

18. Y is of primary school age and has a diagnosis of autism. Y attended school A, a mainstream primary school.
19. In August 2024 the Council finalised Y’s EHC Plan which set out that Y attended school for two hours and 45 minutes a day and had been on a reduced timetable since starting school A in September 2023. It said the school’s aim was to gradually increase this over time.
20. In section F it included that Y required a school environment and ethos that promoted an understanding of neurodiversity, direct attuned support from a familiar staff team, a personalised curriculum and class groups based on similar working levels. In section I it stated the school was yet to be determined but the type list was ‘mainstream’.
21. In a covering email sent to Miss X with the Plan the Council said ‘[the EHC Plan] has been finalised for a type meaning a school has not yet been named as we are still undertaking the consultation process. Once you have the names of schools you would like me to consult with please let me know and I will send the consultations out’. Miss X sent the Council a list of six schools. School A increased Y’s timetable. However, it stated it was struggling to meet Y’s needs.
22. Miss X requested an update on progress in October and November 2024. The Council responded that all the consultations had received a negative response and asked if she had a preference so it could look at whether to challenge the refusal. Miss X provided this. Miss X chased progress again in December.
23. In January 2025 Miss X complained to the Council that Y’s mainstream primary school was struggling to meet Y’s needs, impacting on Y’s education. She had tried to contact the Council repeatedly and was told it had significant capacity issues and was focusing on phased transfers. She requested a realistic timetable for when Y would get a new school place and an update on the school consultations.
24. In May 2025 Miss X suggested two further schools which the Council consulted. An officer spoke with Miss X about other schools to consult and noted Miss X felt school A was not meeting Y’s needs. The officer suggested seven special schools for Miss X to consider.
25. In June 2025 Miss X’s councillor contacted the Council with their concerns about Y not yet being given a special school place and that Miss X was finding it difficult to get Y to school due to their behaviour. Miss X’s MP also contacted the Council the following month. Around this time Miss X visited a special school, school B. She said it offered a place pending approval and asked the Council to consult it. She chased the Council several times for an update on progress.
26. The Council responded to Miss X’s councillor in mid-July 2025. It said Y’s current school was named in Y’s Plan and Y would continue there until it had secured a special school. It said it had sent out consultations and recommended Miss X contact children’s social care.
27. In September 2025 Miss X complained to the Council that it had still not secured a special school for Y. She said school B had responded to the consultation but the Council had not progressed this.
28. The Council responded that Y’s EHC Plan officer was away which may be why the consultation response was missed. It said it had sent a further consultation to school B and steps were being taken to secure an alternative placement. Once it received a response it would be in touch.
29. A Council officer spoke with school A. It said Y was on a modified timetable to keep them and other pupils safe. Y received support on a two to one basis which was not sustainable and Y appeared distressed. Miss X told the Council and school A she could not agree to the reduced timetable.
30. Miss X asked to go to the second stage of the complaints procedure. She was unhappy the Council has missed the opportunity for a placement at school B and no other placement was offered. Around this time Y stopped attending school A. Miss X said it was not meeting Y’s needs, school A had raised concerns Y was hurting staff and other children and Y was taught in a room on their own with one staff member. She could not get Y to and from school safely and had suffered an injury following an incident when Y pushed her over.
31. The Council responded at stage two of its complaints procedure in late September 2025. It accepted it delayed responding to school B and that her contacts were not responded to in the expected five working days due to capacity issues. It said it has changed its internal structures to improve communication and timeliness. It said school B was now full and it was not acceptable that school A was planning a part-time timetable. It suggested she contact the school for an urgent review of Y’s EHC Plan.
32. The Council held an annual review of Y’s EHC Plan in October 2025. This stated the Plan should be reviewed and that Y was awaiting a specialist provision placement. It noted Y was far too overwhelmed in a mainstream setting and was unable to meet many of their targets due to requiring specialist provision and specialist trained staff.
33. In response to our enquiries the Council said it had tried to ensure school A was available and accessible but the school did not feel able to manage Y’s needs. It said it had contacted two placements to see if they could provide support to the school, but they were unable to do this. The Council said it felt home tuition would not meet Y’s needs as Y was highly dysregulated and the priority was to identify a special school placement.
34. In May 2026 Y started transitioning to a special school.

Findings

School consultations

35. Although Miss X had a right of appeal in relation to Y’s EHC Plan issued in August 2024, I consider it was not reasonable for her to have done so. Miss X understood the Council was in the process of consulting schools with a view to naming one in the Plan. However, the Council should have consulted schools before finalising the Plan in August 2024. The Council’s delay and drift in carrying out consultations and following up responses was fault.
36. Miss X sought consultations with special schools and the schools suggested by the Council to Miss X were special schools yet Y’s Plan stated a mainstream primary. The Plan was therefore not in line with the schools being consulted. This was fault which caused Miss X confusion. In response to an enquiry from Miss X’s councillor the Council also said school A was named in Y’s Plan while it sought a special school. This was not the case, which added to her confusion.
37. When school B responded to the consultation the Council delayed considering this. By the time it did so the place was no longer available. This was fault which caused uncertainty over whether school B may have been available for Y from September 2025.

Communication

38. The records show Miss X repeatedly contacted the Council to request updates on its progress. She responded to its requests for names of schools to consult and sought support from her MP and Councillor. The Council accepted in its complaint response that it did not always respond in a timely manner to her communication. This was fault which added to Miss X’s frustration.

Missed provision

39. Y’s EHC Plan of August 2024 noted that Y was on a part-time timetable with a view to increasing Y’s hours. From the time Y started at school A they were attending part-time. The records suggest the hours of attendance did increase for a period but there is no evidence Y ever attended full time. The Council failed to keep this under review. It failed to consider whether Y needed additional or alternative provision outside school A. Part-time timetables for children of compulsory school age should be a short-term solution. The Council knew from August 2024 that Y was attending part-time. Until it found an alternative school the Council should have decided whether Y needed other educational support to ensure they received a suitable education. The failure to properly consider its section 19 duties was fault and leaves uncertainty over whether Y received a suitable education.
40. Y stopped attending school in September 2025 because Miss X had concerns about school A’s ability to keep Y safe and school A said it could not meet Y’s needs. The Council was aware of this. Although it explored the possibility of additional support it failed to arrange any educational provision. The Council’s failure to ensure Y received the provision within their EHC Plan or any alternative provision was fault. As a result Y received no education provision at all for two terms between mid-September 2025 and May 2026.

Previous investigations

41. Following a separate investigation, the Council agreed to remind relevant officers, either through training or a briefing note, of the Council’s duties to consider its section 19 duty as soon as it is aware that a child is not attending school full-time. So I have not made a similar recommendation on this case. We will continue to monitor the Council’s performance through our casework.

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Agreed Action

42. Within one month of the final decision the Council has agreed to:
1. apologise to Miss X and pay her £500 to acknowledge the uncertainty and frustration caused by the delay and drift in progressing consultations, confusion over the type of school, its failure to follow up the consultation with school B and failure to properly consider its section 19 duties in relation to Y’s part-time school attendance. 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.
2. pay Miss X £2,400 to acknowledge the impact of Y’s missed provision between September 2025 and May 2026 in line with our guidance on remedies.
43. Within two months of the final decision the Council has agreed to review it arrangements for maintaining an oversight of those on a part-time timetable. It should ensure there is clear plan in place for an increase in provision and should be ready to intervene if the plan is not successful.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman