Council failed to consider section 42 duty to provide child with special educational provision set out in EHCP, Ombudsman finds

The Ombudsman found the council’s failings caused Y to miss out on approximately four and a half terms of special educational provision and caused distress, frustration and uncertainty for the child and his family.

The man behind the complaint, Mr X, had complained that the council failed to provide access to suitable, full-time education when his son, Y, was permanently excluded from school in March 2024.

He also complained that the council:

• failed to complete an annual review which took place in November 2024;
• closed the family’s child in need case without any explanation;
• displayed poor communication and complaint handling throughout the process.

Prior to April 2024, Y had an EHC Plan which named a specialist provision and set out the special educational provision Y should receive.

At the end of April 2024, Y was permanently excluded from the specialist provision named in his EHC Plan.

The council was informed of Y’s exclusion by Mrs X on the same day. The school informed the council of Y’s exclusion within three days.

The council provided a minimum level of weekly online tuition for Y between May 2024 and November 2024.

The Ombudsman observed: “The council has not provided any evidence of how it considered this level of provision was suitable for Y. The evidence shows that although the alternative provision provided was minimal, Y struggled to engage, and he did not receive any quality educational input during this time.”

In August 2024, the council explored the option of a new placement for Y. Consultations were sent to several specialist settings, however, the council was unable to secure a suitable provision.

Due to negative consultation responses, the council made the decision to continue with the tuition offer which had been in place since May.

The Ombudsman said the council had not provided any evidence of how it considered the tuition met its section 42 duty to provide the special educational provision detailed in Y’s EHC Plan.

By November 2024, Y was not receiving any tuition due to the provider being unable to offer afternoon sessions to fit with the family’s timetable. An annual review was held, and the agreement was made to complete a reassessment of Y’s needs.

In December 2024, the council agreed to fund an education package for Y. Due to Y’s difficulty in engaging and safeguarding concerns, it was determined Y should access online learning and mentoring.

From January 2025, Y began accessing three hours of online learning per day. This offer was in place until May 2025, when it ended “without explanation”.

Y did not receive any alternative provision between May 2025 and January 2026.

Analysing the case, the Ombudsman said: “The council provided minimal provision and has failed to provide evidence of how it determined this met its section 19 duty to provide Y with access to suitable, full-time education.

“The council failed to consider its section 42 duty to ensure Y had access to the provision detailed in his EHC Plan between May 2024 and December 2024. This is fault which meant Y missed out on the special educational provision detailed in his EHC Plan for approximately two school terms, between May 2024 and December 2024.”

Meanwhile, the Ombudsman found the council failed to provide Y with access to suitable, full-time education between May 2025 and January 2026 when the alternative provision was withdrawn. This meant Y missed out on access to suitable education for approximately two and a half school terms.

The Ombudsman observed that the council also failed to complete the November 2024 annual review.

The Ombudsman noted: “Although on balance, I do not consider this fault caused any additional loss of education for Y, it did mean Mr X had no appeal rights for over a year. This caused Mr X distress, frustration and uncertainty.”

To remedy the injustice caused, the Ombudsman recommended the council:

• Apologise to Mr X for the injustice caused by the faults identified.
• Make a symbolic payment of £5,850 to Mr X in recognition of the missed education which resulted from the faults identified. This is calculated at £1,300 per missed term of education.
• Make an additional payment of £300 in recognition of the distress, frustration and uncertainty caused by the faults identified.
• Consider the Ombudsman’s guidance and tell it what action(s) it will take to minimise delays in its complaints handling process.

Paul Turner, Director of Education and Inclusion, Lancashire County Council, said: “We are sorry that the support provided in this case fell short of what the child and their family should have received, and we accept the Ombudsman’s findings.

“We have agreed to carry out the actions recommended by the Ombudsman and will use the learning from this case to help improve the support we provide to children and young people with special educational needs and disabilities.”

Lottie Winson