Summary: Mrs X complained that the Council failed to make suitable education provision for Y when the family moved into the area. The Council was at fault as it delayed in making education provision for Y, failed to explain why it considered a school was suitable, delayed in carrying out an annual review of Y’s Education, Health and Care Plan and delayed in issuing an amended Plan. This meant Y missed education provision between March and July 2024 and the faults caused distress to Mrs X. The Council has appropriately remedied the loss of education provision between April and July 2024 but it has agreed to make a symbolic payment of £400 to Mrs X to remedy a further two weeks of missed provision. The Council has also agreed to make a symbolic payment of £500 to Mrs X to acknowledge the distress and uncertainty caused to her by the delay in issuing the amended Education, Health and Care plan and failure to explain why a school was suitable.

The complaint

1. Mrs X complains the Council failed to make suitable education provision for her son Y when they moved to the Council’s area. Mrs X considers that, as a result, Y did not receive suitable education for the period he was living in the Council’s area and he may not be able to take his GCSEs.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
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(i), as amended)
6. 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

7. I have considered events from November 2023 to January 2025. But I have not investigated the Council’s decision to name mainstream schools when it issued Y’s Education, Health and Care (EHC) Plan in January 2025. This is because this is a new issue and Mrs X had the right to appeal to the SEND Tribunal.
8. I also have not investigated Mrs X’s concerns about the suitability of the education provision made for Y as this is also a new issue. The Council must be given the opportunity to consider the complaint and respond to Mrs X before we can investigate it.

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How I considered this complaint

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

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What I found

Law and guidance

11. 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. 
12. 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)  
13. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
14. 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.
15. 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)

What happened

16. The following is a summary of the key events relevant to my consideration of the complaint. It does not include everything that happened.
17. In late 2023, Mrs X and her family moved to the Council’s area from another area. Mrs X’s son, Y, had an EHC Plan which named a mainstream school. Prior to Mrs X’s move, the Council consulted three mainstream schools on whether they could offer a place for Y. Two of the schools said they could not offer a place for Y. The Council’s records note that the remaining school, school A, said it could offer a place. But it raised a number of concerns about whether it could meet Y’s special educational needs and whether it would be a suitable environment for him.
18. The Council’s Governance Panel considered Y’s case in early January 2024. The record of the panel meeting notes that it agreed to adopt Y’s EHC Plan on a like for like basis and it considered school A was a suitable placement. There is no explanation of why the Council considered the placement was suitable.
19. The Panel’s records note Y’s EHC Plan was due to be reviewed by April 2024. The Panel noted that it would bring forward the annual review.
20. The Council’s records show Mrs X contacted the Council in early February 2024 to chase for the outcome of the Panel meeting. The Council notified Mrs X that it had agreed a placement for Y at school A. Mrs X raised concerns about this decision as school A said it would struggle to meet Y’s needs. Mrs X then visited the school and informed the Council that it was not a suitable placement for Y due to his special educational needs.
21. In February 2024, the Council agreed to refer Y to its access to education service to see if it could provide alternative education provision for him as he was out of education. The Council again agreed to bring forward Y’s annual review and consider if there were other placements which could meet Y’s needs.
22. Access to education visited Mrs X and Y in late April 2024 and considered Y should be referred to an online school.
23. Mrs X made a complaint to the Council as she considered the Council had failed to offer a suitable placement for Y and its communication with her was poor. The Council considered Mrs X’s complaint at stage one of its two stage complaints procedure. The Council apologised as it had not been able to find a school place for Y, it had failed to refer Y to the online school and that its communication had been poor due to staffing issues. The Council said it would arrange the alternative provision as a matter of urgency and would carry out a review of Y’s EHC Plan.
24. Mrs X made a further complaint in September 2024 as Y still did not have a school place and did not have any education provision. The Council considered the complaint at stage two of its complaints procedure. It said:

• There was no fault in naming school A as Y’s placement.
• There was significant delay in referring Y to the online school. The Council made the referral in late August 2024 for tuition in Maths and English and it would consider other subject areas.
• It had delayed in carrying out the annual review Y’s EHC Plan. This should have been undertaken in April 2024 but it did not conduct the annual review until early September 2024. This frustrated Mrs X’s right of appeal against the Council’s decision to offer a place at school A.

25. The Council apologised to Mrs X and Y for the faults identified. It recommended that the education service consider a symbolic financial remedy for Y in recognition of missed education from April to July 2024. The Council would also consider a symbolic financial remedy to recognise its poor communication.
26. The Council also said the annual review process should be completed within the 12 weeks statutory timescale.
27. The Council made a symbolic payment of £2900 to Mrs X to acknowledge Y did not have education provision for one term and to acknowledge the distress caused by its poor communication.
28. The Council provided six hours per week of online tuition for Y from mid September 2024. Mrs X said Y struggled to engage with the tuition.
29. The Council also consulted another school on whether it could offer a place for Y. In October 2024, the school notified the Council that it could not meet Y’s needs.
30. The Council issued Y’s final EHC Plan in late January 2025. This named mainstream provision as the required education provision for Y.

Analysis

31. The Council’s records note the Governance Panel’s decision that it considered school A to be suitable. But there is no record of why the Panel considered the school to be a suitable placement in view of the school’s concerns that it could not meet Y’s special educational needs. The Council should have a clear record of what it made of the school and Mrs X’s concerns and why it considered the school to be suitable for Y despite the concerns. The failure to record the Panel’s reasons for why the school was suitable for Y was fault.
32. The Panel’s records show it was aware of the school’s concerns, so, on balance, the failure to record the Panel’s reasons was a record keeping error. I therefore cannot say, on balance, that the Panel would have made a different decision even if it had explained its reasoning. But the fault will cause some uncertainty to Mrs X. This is because she cannot be satisfied that the Council properly considered if school A was a suitable placement for Y. The Council should remedy this injustice.
33. The Council’s records show it was aware Y was out of school in late February 2024 and it decided to make a referral to access to education at that time. So, on balance, the Council accepted that the placement at school A was not accessible for Y and it had a duty to make alternative education provision for him. The Council should therefore have made the alternative provision within a month, at the latest, of deciding Y required alternative provision. The Council acknowledged it failed to make the alternative education provision between late April and July 2024. But the Council should have made education provision from late March 2024. Some of this period was covered by the Easter school holiday. So, I consider Y missed a further two weeks of education as a result of the fault.
34. The Council made a payment of £2900 to Mrs X to acknowledge that Y did not have education for one term and for the distress caused. This is a proportionate remedy and in line with our Guidance on remedies. But the Council should also make an additional payment of £400 to Mrs X to acknowledge Y missed a further two weeks of education provision.
35. The Council acknowledged it delayed in carrying out the annual review of Y’s EHC Plan. The Council should have carried out the annual review of Y’s EHC plan by April 2024 at the latest as this was 12 months after the previous EHC Plan was reviewed. It did not carry out the annual review until early September 2024 which was a delay of five months. This meant the Council did not have an up to date knowledge of Y’s special educational needs when it was looking for a placement for him.
36. The Council should have issued Y’s amended EHC Plan within 12 weeks of the annual review meeting which the Council undertook to do in its stage two response. The Council did not issue Y’s final EHC Plan until mid January 2025. This was a delay of seven weeks and was fault. This caused distress to Mrs X and delayed her right of appeal against the Council’s decision to name mainstream provision for Y. The delay did not cause Y to miss education provision as the provision outlined in his previous EHC Plan was comparable to the provision in the amended plan.
37. We have recently made recommendations for the Council to improve its service in making alternative education provision, adhering to statutory timescales for issuing EHC Plans and for its Governance Panel to record its reasons for its decisions. So, it is not necessary to make further recommendations for service improvements in these areas.

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Action

38. That the Council should:
1. Send a written apology to Mrs X for the distress and uncertainty caused by the Council’s failure to explain its decision that school A was suitable for Y, delay in making alternative education provision for Y and delay in issuing Y’s amended education, health and care plan. 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.
2. Make a symbolic payment of £400 to Mrs X to acknowledge Y missed two weeks of educational provision between March and April 2024.
3. Make a symbolic payment of £500 to Mrs X to acknowledge the distress and uncertainty caused to her by the Governance Panel’s failure to explain why it considered school A was suitable for Y and the delay in issuing Y’s amended Education, Health and Care Plan.
39. The Council should take the action above within one month of my final decision. It should provide us with evidence it has complied with the above actions.

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Decision

I have completed my investigation and I find fault causing injustice to Mrs X and Y. The Council has agreed to take the recommended action to remedy the injustice to Mrs X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman