The Ombudsman's final decision
Summary: We have found fault with the Council for the delay in securing alternative provision for Miss Y’s son, C. This resulted in C missing education and special education need provision for one school term. The Council agreed to apologise and make a symbolic payment in recognition of the missed provision.
The complaint
Mr X complained on behalf of Miss Y that the Council failed to meet its legal obligations in providing Special Educational Need (SEN) support for her son, C. He said this has resulted in C being out of school since February 2024.
The Ombudsman’s role and powers
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) 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) 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) 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.
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)
What I have and have not investigated I have investigated whether the Council secured suitable alternative education and SEN provision when C was not attending school.
In line with paragraphs 3, I have investigated the period between December 2023 (12 months before Miss X brought her complaint to us) and December 2024 (when Miss X complained to us).
In line with paragraph 4, I have not investigated matters surrounding the suitability of C’s school as this was named in C’s EHC Plan and Miss Y could appeal.
How I considered this complaint
I considered evidence provided by Mr X (on behalf of Miss Y) and the Council as well as relevant law, policy and guidance.
Mr X (on behalf of Miss Y) and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance EHC Plans 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.
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) 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 demonstrate appropriate oversight in gathering information to fulfil their legal duty. At 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 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.
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) What happened Miss Y’s son, C has SEN and an Education, Health and Care (EHC) Plan. C had a placement at a specialist school, named in his EHC Plan.
In December 2023, the Council raised concerns that C was not attending school and Miss Y was not engaging with the school or the Council. Miss Y said that C was abroad having medical assessments. The Council said that Miss Y said she would like a boarding school placement for C. The Council advised that C should continue at the specialist school.
The Council worked with the school and C’s family to try and reintegrate C into school. The Council coordinated meetings and produced a transition plan to support C which included a reduced timetable to start on an arranged date.
C did not arrive at school on the arranged date. Miss Y said he refused to get into the taxi.
C did not attend school for the rest of January 2024. During February, C continued to struggle with the school transport and only attended school on 6 occasions.
Between March and July 2024, alongside attempts to reintegrate C into school, and the school sending work home, the Council consulted alternative specialist schools for C. Most of these declined due to lack of capacity.
In April, Miss Y said that C would not be returning to school. She cancelled C’s taxi service and withdrew cooperation with C’s social worker. The Council asked Miss Y for confirmation that she was home educating C, and requested Miss Y’s consent to refer C to the SEND Interim Home Education Team. Miss Y said she wanted a different school, not home tuition.
The Council said there was no evidence that the school was unsuitable for C. The school continued to try and engage with C was removed from the school roll in October 2024 at Miss Y’s request.
Miss Y complained to the Council that C was missing education and SEND provision. The Council said it had attempted to make relevant referrals and offered tuition for C, but Miss Y had not engaged. It concluded that there was no evidence the Council had not delivered what was required of them.
Miss Y agreed to home tuition in October 2024.
In December 2024, Mr X complained on behalf of Miss Y to the Ombudsman.
Update In January 2025 the Council secured home tuition for C. This commenced in February and ended in April 2025 when C’s new school placement started.
My findings
From the evidence I have seen, between March 2024 and February 2025, C did not receive education or SEN provision.
C still on school roll The evidence shows that once the Council was aware of C’s poor attendance in December 2023, the Council and school was in regular contact with Miss Y and C and other professional bodies to try and reintegrate him into school. However, even after a reduced timetable and provisions had been agreed and put in place, C did not return to school.
The Council considered the school to be suitable for C’s needs, and the school was sending work home, so the Council did not offer alternative provision.
Also, during this period, at Miss Y’s request, the Council consulted potential alternative schools for C.
I do not consider the Council to be at fault for C missing education and SEN provision during this time. The Council took relevant action, but Miss Y did not engage and refused to give consent for home tuition.
Removed from school roll In September 2024, Miss Y gave notice and in October 2024 C was removed for the school roll.
In October, Miss Y agreed to home tuition. However, it took until January for the Council to secure provision which did not commence until February.
I have found fault with the Council for the delay in securing provision once Miss Y gave consent for home tuition. This resulted in C missing out on education between October 2024 and February 2025. This equated to one school term of missed provision.
The Council has agreed to apologise for this delay and pay Miss Y a symbolic payment of £900 for the one term that C missed education and SEND provision as a result of the Council’s fault.
Agreed action
Within 4 weeks of my decision, the Council has agreed to: Apologise to Miss Y for the delay in securing alternative provision between October 2024 and February 2025.
Pay Miss Y £900 in recognition of the one term C missed out on education and SEND provision.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing an injustice. The Council has agreed to take action to remedy the injustice.
Investigator's decision on behalf of the Ombudsman