Summary: Mrs X complained the Council failed to secure all the special educational provision set out in Y’s Education, Health and Care Plan and failed to secure alternative provision for him while he was unable to attend school full time. The Council was at fault meaning Y did not receive the educational provision he was entitled to. The Council has agreed to apologise, make a payment to recognise the injustice, and act to prevent recurrence.

The complaint

1. Mrs X complains the Council failed to secure the special educational provision and Occupational Therapy (OT) set out in her son, Y’s Education, Health and Care (EHC) Plan during the academic year 2024/25. Mrs X also complains the Council failed to secure suitable alternative provision for Y while he was unable to attend school full time. Mrs X says this has affected Y’s learning and caused him real distress.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
7. 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)
8. 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

9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. If someone has, or could have appealed to the Tribunal, the law says we cannot investigate any matter which was part of, connected to, or could have been part of the appeal. As Mrs X had the right to appeal the content of Y’s EHC Plan to the Tribunal, I have not investigated the content of Y’s EHC Plan or any issues connected to the Tribunal.
11. We cannot usually investigate complaints about events that took place more than 12 months before they were brought to the Ombudsman. We can only exercise discretion to look back further if there are good reasons to do so.
12. As Mrs X first brought her complaint to the Ombudsman in October 2025, anything that took place before October 2024 would be considered a late complaint. However, I find it is likely the delay was caused by Mrs X’s appeal to the Tribunal so I have exercised discretion to look back to when Y’s EHC Plan was issued in July 2024.
13. Any mention below to events that took place before July 2024 or after the Council issued its final response to Mrs X’s complaint in July 2025 are for reference only.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

EHC Plans

16. A child or young person with special educational needs (SEN) 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. 
17. 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)  
18. The courts have established that if someone has appealed to the 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)

Alternative provision

19. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
20. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
21. 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.
22. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
23. 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

24. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
25. Y has SEN and his education is supported by an EHC Plan.
26. In July 2024 the Council issued an EHC Plan that named School A. This set out the special educational provision Y required. The EHC Plan said Y was entitled to one two-hour OT session per term, the creation of a personalised sensory regulation programme, daily implementation of that programme, adult support throughout the day and an OT review at the end of the year.
27. Mrs X appealed the content of Y’s EHC Plan to the Tribunal.
28. Provision was put in place for Y at School A from September 2024, however the school did not arrange the specified OT sessions.
29. The Council met with School A in October 2024. During this meeting, School A suggested additional alternative provision to support Y. School A suggested Y attend on a part-time basis with his week split between there and an alternative provision provider.
30. From that point, Y was not attending School A full time however the Council did not put funding in place for alternative provision to start.
31. The Council held an interim review of Y’s EHC Plan on 11 December 2024.
32. In February 2025 the Council referred Y to an alternative provision provider and he started attending sessions there in March 2025.
33. On 7 March 2025, the Council issued a final amended EHC Plan for Y. This named “a local maintained mainstream primary school or academy” as Y’s educational setting. The Council consulted with possible settings for Y.
34. On 18 June 2025 the Council issued a final amended EHC Plan for Y, naming School B.
35. The Council offered to arrange OT provision for Y for the end of the academic year, but Mrs X said she did not want a new professional in place for a short period.
36. Mrs X complained to the Council, saying it had failed to secure the provision set out in Y’s EHC Plan, had delayed arranging the agreed alternative provision and Y had not received a suitable education for around a year.
37. The Council responded to Mrs X’s complaint to explain it had provided School A with the funding to secure Y’s EHC Plan provision. The Council said it was aware from October 2024 that OT provision had not been secured, and Y needed a part-time timetable. It said Y had attended the alternative provision setting between February 2025 and July 2025, with sessions increasing during that time. The Council apologised for the delay in arranging alternative provision once this was agreed and for OT not being available to Y. The Council said provision would be available for Y from School B from September 2025 and offered to pay Mrs X £300 in recognition of the OT sessions not being in place.
38. In response to our enquiries the Council has confirmed the direct OT provision specified in Y’s EHC Plan was not provided in the academic year 2024/25. The Council also confirmed there are no records to show how it gave specific consideration to Section 19 duties. The Council said it now has a clear Section 19 process in place for more effective case work and liaison with the school.

Analysis

39. Councils have a duty under section 42 of the Children and Families Act 2014 to secure the special educational provision specified in Section F of an EHC Plan. This duty is non-delegable. Where a council commissions another organisation to arrange or deliver provision on its behalf, the council remains legally responsible for ensuring the provision is delivered.
40. The majority of Y’s EHC Plan provision was secured at School A from the start of the academic year in September 2024, however the OT provision was not secured across the entirety of the school year. This is fault.
41. As a result of this fault, Y was without the OT provision specified in his EHC Plan as necessary to meet his needs across the academic year 2024/25. This is a significant injustice. The Council has offered to pay Mrs X £300 in recognition of this injustice, however I find the Council ought to pay Mrs X £900 for failing to arrange OT, calculated at £300 per term.
42. From a meeting with School A in October 2024 the Council was aware Y was not attending school full time and agreed he was in need of alternative provision. From this point the Council was under a duty to make arrangements for the provision of suitable alternative provision. That it did not arrange for alternative provision to begin until March 2025 is a considerable delay and means Y was without the alternative provision for roughly two school terms.
43. It is not my role to say what alternative provision Y should have received or what level of education was suitable for him. However, I find the Council ought to make a symbolic payment of £900 per term to acknowledge the impact of the loss. This takes account of the fact part-time provision was still in place at School A, that both School A and the Council agreed Y should attend.

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Action

44. To remedy the injustice identified above, the Council should carry out the following actions within one month:
• Provide Mrs X with a written apology for the injustice caused by the delay in implementing alternative educational support for Y while he was out of school, and for the failure to arrange OT provision for him across the school year. 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;
• Pay Mrs X £900 in recognition of the OT provision missed during the academic year 2024/25;
• Pay Mrs X £1,800 in recognition of the delay of approximately two school terms in implementing alternative educational provision for Y; and
• Remind staff of its duties under law and guidance to provide alternative provision when a child of statutory school age is out of school. The council should consider sharing a copy of our focus report ‘Out of school…. Out of sight?’ and our final decision with the reminder.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman