The Ombudsman's final decision
Summary: Miss X complained about the Council’s failure to provide her child, Y, with school placement, full-time education and with the provision set out in Y’s Education, Health and Care Plan. Miss X also complained the Council failed to provide her with respite support. There was fault by the Council which caused injustice to Y and Miss X. The Council will take action to remedy the injustice caused.
The complaint
Miss X complained that since her family moved to the Council’s borough in December 2023, the Council failed to provide: her child, Y, with school placement and full-time education Y with the special educational needs provision set out in her Education, Health and Care (EHC) Plan.
Miss X with respite support.
Miss X said as a result, Y missed out on education, provision and support over a significant period, and the matter affected Y’s mental and physical health.
Miss X also said the matter caused her distress, financial strain/loss and it affected her physical and mental health.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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.
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated I have not investigated the complaint at point ‘c’. This is because it is related to the social care element of Miss X’s complaint which the Council is considering under its complaints procedure. The Ombudsman will investigate the matter separately and it does not form part of this investigation.
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) Miss X complained to the Ombudsman in August 2025 which means this investigation should start from August 2024 (the 12-month period before she complained to the Ombudsman).
I have exercised discretion to investigate matters from December 2023 when Miss X’s family moved to the Council’s borough. It was reasonable for Miss X to try and resolve matters initially without formally complaining. Therefore, I have investigated matters from December 2023 to August 2025.
How I considered this complaint
I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Education, Health and Care 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 secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.
Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final Plan is issued.
Transfer of EHC Plan between councils Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014) Education Otherwise Than at School (EOTAS) Package – is a bespoke educational program funded by a Local Authority for children who cannot attend a traditional school setting.
Post-16 review, provision and naming placement deadline - For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan which includes specifying the post-16 provision and naming the institution by 31 March in the calendar year of the transfer.
Alternative Provision Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that 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.
If a council discovers a child is absent from school for an extended period, 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.
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.
If a child has an EHC Plan, the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
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 the parents.
Part-time timetables The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very 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 is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
Background
Miss X’s child, Y, has some health conditions and special educational needs (SEN) which includes severe learning difficulties.
Y has an Education, Health and Care (EHC) Plan. Some of the provisions set out in Y’s final EHC Plan issued in November 2023 included: Daily teaching approaches that use structure and routine, focused and chunked learning tasks, visual support, prompts and reminders, additional time to complete tasks. Staff to always communicate with Y using visuals which is best done by 1:1 rather than in a small group.
Give Y plenty of opportunities throughout the day to make choices using her PECs folder and to access assistive technology Staff to implement an Intensive Interaction Approach when interacting with Y throughout the day and as many opportunities as possible.
Speech and Language Therapy Team will provide ongoing support for target setting, reviews and advise on associated strategies to support Y.
Y will continue to have her sensory needs met through the curriculum. Provide plenty of opportunities to run, bike and climb in appropriate outdoor spaces, as a reward and during leisure time with 1:1 support.
Y needs curriculum activities such as weekly cooking sessions and changing for swimming to promote her independence are essential. Activities aimed specifically at developing Y’s fine motor skills should be varied.
Key events In mid-December 2023, the Council was informed that Miss X’s family moved to its borough by the former council.
2024 On 24 January, a copy of Y’s EHC Plan was transferred to the Council by the former council.
In February, the Council informed Miss X it would explore alternative interim provision/tuition for Y due to her SEN until it was able to secure suitable educational setting for her.
In March, the Council consulted with various schools, and it attempted to secure interim tuition for Y. The Council was unable to secure interim tuition for Y and none of the schools offered Y a placement due to either lack of availability and/or they could not meet Y’s needs.
In April, the Council identified a Provider and approved an interim tuition of 15 hours per week for Y. But due to Y’s medical condition, the Provider requested additional medical assessments/protocols for her as part of its risk assessment before it could start the tuition sessions with Y.
The Council contacted Y’s GP, but it was unable to assist with the medical protocols the Provider requested. Miss X also confirmed there was no such protocol in place. The GP directed the Council to Y’s medical specialists to get the requested document.
In June, the Council updated Miss X about the actions taken and the challenges it had experienced with providing interim tuition and with finding a school placement for Y. Miss X asked the Council if Y could return to her previous school based in the former council area.
The Council contacted and confirmed from Y’s previous school that it no longer had availability. The Council informed Miss X.
On 11 June, the Council completed an annual review of Y’s EHC Plan. The review paperwork showed the Council’s proposed amendments to some of the sections in Y’s Plan. There were no proposed amendments made to Section F and Section I (the named setting) was blank.
The Council continued to seek medical protocols from Y’s professionals, and it consulted with more schools. The Council also explored and decided to provide Y with tuition over the summer holidays in recognition of the ongoing delays with securing interim provision for her. The Council made enquiries with some tuition providers about summer holiday tuition, but it was unable to arrange it for Y.
In August, the Council identified and allocated Y’s case to the post-16 team.
The Council received Y’s medical protocols, and it arranged for the interim tuition to start from November 2024 to July 2025 (unless the Council identified a school placement within this timeframe).
On 18 November, Y started receiving the commissioned interim tuition from the Provider. This included a total of 15 hours tuition per week (3 hours per day) with one tutor and one specialist teaching assistant to support Y’s educational needs and one carer to support her medical needs.
The Council did not issue Y’s final EHC Plan following the June 2024 annual review meeting.
2025 In January, the Council informed Miss X about Y’s progress with the interim tuition based on the reports it received from the Provider. Some of the reports showed 0% attendance for Y and that she struggled to engage with the provision during some weeks.
Between January and February, the Council continued to consult with schools but none of the schools offered Y a placement due to their inability to meet her SEN.
On 24 July, the Council completed an annual review of Y’s EHC Plan. Due to no placement offers from the schools the Council consulted with, it agreed that a post-16 EOTAS package would be added to Y’s Plan.
As of August, Y continued to receive the 15-hour interim tuition from the Provider.
Miss X’s Complaints Miss X made a formal complaint to the Council about its delays and failure to provide Y with school placement, full-time education and the provision in her EHC Plan.
In its responses to Miss X’s complaint, the Council: accepted and apologised for its delays with providing Y with suitable school placement due to her SEN. The Council said its borough was oversubscribed in terms of special schools, but that it remained committed to secure a suitable setting for Y.
apologised for the delays with providing Y with interim tuition as it needed medical advice/protocols before the Provider could start providing her with the agreed tuition session.
said in recognition of the impact of the delays, it made the decision to arrange for Y to have access to education during summer holidays, it had made enquiries with some tuition providers, but it was unable to arrange it.
said an additional investment had been approved to improve delivery of its SEND service offered Miss X financial payment for its delays with the annual review process, missed education and for the time and trouble she had been put to. Miss X did not accept or receive the financial payments it offered at the stage 2 complaint process.
Miss X remained dissatisfied with the Council’s responses and how it dealt with Y’s case. Miss X made a complaint to the Ombudsman.
In response to our enquiries, the Council: said Y’s annual review process was not progressed, and her final EHC Plan had not been issued due to staffing pressures.
confirmed the 15-hour per week interim tuition was commissioned in relation to both Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014.
Analysis Annual Review Process Although the Council held an annual review of Y’s EHC Plan in June 2024 which was within 12 months of when her previous Plan was issued in November 2023, I find fault by the Council. This is because the Council was legally required to complete the statutory phase-transfer annual review for Z’s post-16 provision and placement by 31 March 2024. This was fault.
The Council did not issue Y’s final EHC Plan in 2024 and 2025 after it held the respective annual review meetings on 11 June 2024 and 24 July 2025. The Council should have issued both final Plans within the 12 weeks statutory timeframe from the dates the review meetings were held. Therefore, the Council should have issued Y’s final EHC Plans on 3 September 2024 and on 16 October 2025 respectively. This was fault.
The Council’s delays and failure to issue Y’s final Plans meant Y was left without an up-to-date EHC Plan over a significant period. However, I cannot say what specific injustice the Council’s delay has caused to Y. This is because her Plan has not been finalised and I do not know what additional provision may have been agreed and included in the final Plan.
I find the Council’s faults has delayed and denied Miss X of her right of appeal to the Tribunal if she disagreed with the content of the Plan. Also, it caused Miss X distress, frustration and worry.
Section F of Y’s EHC Plan A new council must put in place Section F provision in an EHC Plan without delay and immediately upon the day the Plan is transferred to it by a former council.
In line with Section 42 of the Children and Families Act 2014, the Council should have secured and provided Y with the provision set out in her previous EHC Plan on 24 January 2024, the day her EHC Plan was transferred to the Council. The Council did not provide Y with the provision in her EHC Plan until November 2024. This meant the Council failed to discharge its Section 42 duty from January 2024 to October 2024 (two and a half academic terms). This was fault which meant Y lost out on SEN provision and support during this period, and it also caused distress and uncertainty to Miss X.
Provision of School Placement and Full-time Education I note the efforts and the action the Council took to secure suitable school placement for Y and I have taken into consideration the end of year school closure in December 2023. Therefore, the Council failed to provide Y with a school placement from January 2024 to August 2025 (the end of this investigation timeframe). This was fault. This meant Y was left without a school placement over a significant period. It also caused distress and uncertainty to Miss X.
The Council provided Y with 15 hours weekly interim tuition from November 2024, the weekly progress reports it received from the Provider in January 2025 showed Y struggled to engage with the tuition/provision. There were no further progress reports provided by the Council or additional evidence to show how it continued to monitor Y’s progress and to ensure the provision was suitable for Y and that it remained in her best interests. This was fault. On balance, I find this meant Y was not provided with suitable alternative provision from November 2024 to July 2025 (a total of two and a half academic terms). It also caused Miss X distress and uncertainty.
Although the Council failed to discharge its legal duty under Section 19 of the Education Act 1996, I find the injustice caused to Y and Miss X as stated in paragraphs 60 and 61 was mitigated. This is because the Council provided Y with some alternative provision from November 2024 to July 2025.
Conclusion
We have recently made service improvement recommendations in other decisions about the Council’s legal duties under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made service improvement recommendation about the same identified issues in this case. These identified issues are already being addressed through other cases we have investigated.
Action
To remedy the injustice caused by the faults identified, the Council has agreed to immediately issue Y’s final EHC Plan and advise Miss X of her right of appeal to the Tribunal.
The Council has agreed to also complete the following actions within one month of the final decision: apologise in writing to Y and Miss X to acknowledge the injustice caused to them by the Council’s identified faults as set out above. The apology should be in accordance with our guidance, Making an effective apology make Miss X a payment of £3,750 on behalf of Y, to acknowledge the loss of school placement, education and suitable/specialist provision and support caused by the Council’s failure to discharge its duties under section 19 of the Education Act 1996 and under section 42 of the Children and Families Act 2014. This is calculated at £1,000 per term (two and a half academic terms from January 2024 to October 2024) and £500 per term (two and a half academic terms from November to July 2025) in line with our guidance on remedies. This payment includes the distress and uncertainty caused to Miss X by the Council’s failings as identified above review Y’s level and suitability of the interim tuition provision. The Council should then amend/provide Y with the appropriate educational provision based on the review outcome and in line with section 19 of the Education Act 1996 and section 42 of the Children and Families Act 2014 The Council should provide us with evidence it has complied with the above actions.
Decision I find fault by the Council causing injustice to Y and Miss X. The Council has agreed take actions to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman