Summary: Miss X complained that her child who has an Education, Health and Care Plan has been without a special school place or suitable fulltime alternative education for two years. There was fault causing loss of education over a two-year period and an adverse impact on the parent carer who has been unable to work. The Council will apologise, continue efforts to find a school place, make a remedy payment and carry out service improvements.

The complaint

1. Miss X complains her child has been without suitable fulltime education since early 2023. Miss X’s child has also missed out on special educational provision in their Educational, Health and Care (EHC) Plan during this period.
2. Miss X complains the Council has identified her child requires a special school place but has failed to find a place for a period of two years.
3. Miss X says her child receives alternative provision but there was delay in putting this in place, gaps in provision, provision has never been suitable or fulltime and not all the special educational provision is in place.
4. As a result of the alleged fault Miss X says her child has missed out on education and she has had to provide unforeseen care during the school day which has prevented her from working.

Back to top

The Ombudsman’s role and powers

5. 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)
6. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than twelve months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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)
10. 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.
11. 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)

Back to top

What I have and have not investigated

12. I have exercised discretion to investigate Miss X’s complaint from June 2023 when her child’s school place was withdrawn. Miss X brought her complaint to us in September 2024, so this is just over the twelve-month period, although I note Miss X has been raising concerns with the Council back to Spring 2023. The Council had notice of the school withdrawing the place and its duty to provide alternative education was triggered in June 2023. The Council has also included this period in its own complaint investigation. I am satisfied June 2023 is a logical start point for the investigation given it is when circumstances significantly changed.
13. I have not investigated events prior to June 2023 when the school place was breaking down. This is too long ago. Miss X could have brought her complaint about this to us sooner. I also cannot investigate the actions of the school, only the Council.
14. Miss X had rights of appeal to the Tribunal which she has not used. I am satisfied it was reasonable for Miss X not to use her appeal rights. Miss X does not disagree with the type of school named in the final EHC Plan; the problem is that no school place has been identified. It is reasonable that Miss X has not appealed in circumstances where she agrees with the content of the Plan and the complaint is simply about its implementation.

Back to top

How I considered this complaint

15. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance, including:

•      The Children and Families Act 2014 (‘The Act’)

•      The Special Education and Disability Regulations 2014 (‘The Regulations’)

•      The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

16. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.
17. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Relevant law and guidance

EHC Plans

18. 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 which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

19. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan. 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. 
20. 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).
21. A council can lawfully issue a final EHC Plan with only a type of school, or no school named. However, the Code (9.132) says a council is only relieved of its duty to secure the special educational provision in the EHC Plan, including securing a place in a school or college named in the Plan, if the child’s parent or the young person has made suitable alternative arrangements for special educational provision to be made, say in an independent school or at home. Where a type of school is named, the Council must provide a place at that type of school.
22. The Council has a statutory duty under s.14 Education Act 1996 to provide sufficient school places for its area and under s.27 of The Act to keep provision for children with special educational needs under review and consider the extent to which local provision meets the needs of children with special educational needs and disabilities.
23. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within twelve months of the first EHC Plan and within twelve months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
24. 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.
25. An EHC Plan may need to be amended outside of an annual review if there are specific changes to a child’s circumstances. Where there are significant changes to a child’s needs a Council may consider it appropriate to carry out a reassessment. (The Code 9.186-9.193)
26. Parents have a right to request specific types of school are named in an EHC Plan (s.38(3) of the Act) including:
• A maintained school
• An Academy
• A non-maintained special school
• An institution approved by the Secretary of State under s.41 (independent special schools).
27. Councils must consult with schools before deciding to name a school, but the decision to name a school is for the Council and it can overrule the types of school listed above if it does not agree with a school’s views about being able to meet a child’s needs.
28. Independent schools not approved under s.41 can be named on an EHC Plan but only where they agree.

Alternative provision

29. 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 due to health reasons. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

Key events

30. The following is a summary of the key events. It does not include everything that happened.
31. Miss X’s child was attending an independent special school. The placement started to break down in early 2023 due to the view of the school it could not manage Miss X’s child’s behaviour. The school prevented Miss X’s child returning to school after a fixed term exclusion. The Council challenged the school that this was not lawful practice and Miss X’s child should be able to attend. It said if the school considered it could not meet needs it should arrange a review of the EHC Plan.
32. The school then gave formal notice to the Council it would withdraw the place, which took effect in June 2023.
33. Miss X says she gave up work because the actions of the school made her child suicidal. Children and Adolescent Mental Health Services have been involved.
34. While there were meetings held prior to the place being withdrawn, I am not clear that any of these were a formal review of the EHC Plan. From the evidence I have seen the EHC Plan was not changed even though the placement in Section I was no longer available for Miss X’s child to access. This meant Miss X had no appeal right despite the placement being withdrawn.
35. The Council did clearly recognise its duty to find another school place and to put in place interim provision under s.19.
36. The Council has consulted many schools without success. Schools either could not meet need or were full. This has been the position for two years. The Council has still failed to find a school place. Miss X says she has remained unable to work, and her child now cannot do GCSE’s.
37. On the evidence I have seen s.19 education was not secured until September 2023, this was then delayed due to problems with tutors and venues and was only for a maximum of 7.5 hours per week. In addition, social care provided some support to Miss X’s child by way of a buddy and youth club to give Miss X a break from caring.
38. In October 2023 there is reference to a tutor withdrawing and another provider reducing the provision one session a week.
39. An annual review must have been held at some point in late 2023 as an amendment notice was issued by the Council in November, and a final EHC Plan naming a type of school (special) in Spring 2024.
40. In February 2024 there is internal evidence (following a change in case officer) about officer concerns about the length of time Miss X’s child had been without a school place. There are also records showing no tuition was in place between October 2023 and February 2024.
41. Further efforts were made by the Council to secure tuition and centre-based provision, but it is obvious this has been patchy. Tuition has varied from three to six hours per week plus other activities such as gym sessions. The Council records refer to total education provision of ten to twelve hours per week at most (excluding social care provision). Sometimes Miss X’s child’s attendance has not been high and some reductions in provision have been because of Miss X’s child’s behaviour, but it is clear from the EHC plan that behaviour is a key reason why Miss X’s child was deemed to require specialist provision. Miss X’s child’s behaviour will not have been helped by the frequent changes in staff and venues they have experienced.
42. At a meeting in February 2024 Miss X says her child wanted to attend a school and her child was open to considering residential schools given the problems finding a local placement. The Council did consult three residential schools, but these consults were unsuccessful.
43. The Council held a further review in Autumn 2024 and issued an amended final EHC Plan in late 2024, again naming a type of school (special) but no specific school.
44. There was another attempt by the Council to put a more comprehensive s.19 alternative provision package in place for Autumn 2024. The Council asked Miss X’s views on ten hours per week education plus five and a half hours social care support. The Council also put transport in place when Miss X sustained an injury and decided to keep this in place to support the family once Miss X recovered.
45. By January 2025 there is further correspondence indicating one provider has again declined to have Miss X’s child on-site and new providers again being sought.
46. The Council’s complaint responses have acknowledged it has been unable to find a school place and there were problems with communication over Summer 2024. The Council did not find any failure in the alternative provision it offered except for a two-week period in September 2024 when transport issues affected provision. The complaint response says it considered Miss X’s child was receiving EOTAS (Education Otherwise than at School) due to its inability to provide a school place.
47. I note the EHC Plan has not been altered to an EOTAS placement and continues to state Miss X’s child should attend a special school.
48. The Council has offered Miss £250 financial payment for its communication failings and £300 for two weeks of missed provision in September 2024. It also said it was working to increase the s.19 education offer to Miss X’s child.
49. At the time of this investigation my understanding is Miss X’s child is receiving six hours per week academic tuition (including special educational provision in their EHC Plan) and two hours per week of what Miss X describes as ‘outreach’ when she says a worker takes her child for a walk. In addition, three hours per week social care support is in place for a community outing, plus support for Miss X’s child to attend a youth club.

Analysis

50. While the previous placement ended in June 2023 (and there was notice of it ending prior to this), the Council did not amend the Plan, change the placement (in Section I), or provide an appeal right until Spring 2024. This was fault. A significant change should have prompted a formal review of the EHC Plan leading to a decision giving Miss X appeal rights.
51. I note however, when Miss X did get appeal rights, she has not used them.
52. Councils have a duty to ensure provision in an EHC Plan is provided. Where the Council names a type of school in the Plan it has a duty to provide a place at that type of school. Where it cannot do so, it must put in place under s.19 Education Act 1996. S.19 is usually short-term and prompted by circumstances such as illness or exclusion.
53. A council may also arrange for special educational provision to be made otherwise than in a school under s.61 of The Act, this is often known as EOTAS (Education Otherwise than at School). A council can only arrange EOTAS if it is satisfied it would be inappropriate for special educational provision to be made in any school and it must consult the child’s parents before doing so. EOTAS will not necessarily be short-term, it is an alternative to naming a school in Section I of an EHC Plan. (NN v Cheshire East [2021] and TM v Hounslow [2009].
54. Where a type of school is named, as in Miss X’s case, then the Council has clearly not decided that it would be inappropriate for provision to be made in a school. If this were the case Section I would be blank and EOTAS would be set out in Section F. I find that Miss X’s child is not receiving EOTAS but has received s.19 education for a period now lasting two years. If the Council considers EOTAS is appropriate it should amend the EHC Plan accordingly in line with statutory processes and give Miss X a right of appeal.
55. I find service failure in the Council’s failure to provide a special school place for two years.
56. The expectation when a placement breaks down is an urgent review of the EHC Plan would take place, and a meeting held. Councils would then have a maximum of twelve weeks after the meeting to finalise the Plan with a school place identified within that timeframe. Twelve weeks is the maximum period councils are allowed following a review; where there is an urgent situation councils would be expected to try and complete the review process and find a new school faster. Prior to the 2014 Act the timeframe when a change of school was requested was eight weeks. It is understandable councils want to exhaust local school options, but by any measure two years to find a school place is completely unacceptable.
57. While I acknowledge the Council has consulted a high number of schools, after two to three months without success, it should have been far more proactive in widening the search, including to consider residential places. This was a child who was previously placed at a high-cost independent special school. Councils have duties to ensure sufficient places and can direct many types of schools to admit pupils. I cannot see the Council has challenged any of the schools that have declined a place or considered directing an admission. This case should have treated as urgent and supervised by managers.
58. I disagree with the Council’s view the s.19 education has been sufficient and a payment of only £250 is merited for one fortnight of affected provision. The s.19 education should have been fulltime and on par with what Miss X’s child would receive in a school. Provision should also (under s.42 of The Act) have met all the special educational provision in the EHC Plan as far as is possible outside a school. It is clear it has not. There have been months with no provision and provision has never been above six hours of tuition a week, and frequently much less. On top of this there has been a lack of continuity, of staff and venue, which Miss X’s child will have found unsettling.
59. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision – full-time or part-time, that was made during the period; and
• whether additional provision can now remedy some or all of the loss.
60. Miss X’s child has missed out on six terms of suitable fulltime education at a crucial education stage of GCSE’s.
61. It is positive to see the social care team has provided support to the family, ensured Miss X’s child does not become socially isolated, and Miss X does get some breaks from caring. This is good practice. However, the support offered collectively by the Council has not been sufficient for Miss X to work, which had her child been in a school she could have expected to be able to do so.

Back to top

Action

Within four weeks of my final decision:

62. The Council will take urgent action to consult schools for Miss X’s child, including suitable residential schools, with the aim of securing a place for September 2025. It should share a list of independent special schools with Miss X and keep her informed of all consults and responses, sharing written responses with her. It should consider each consultation response carefully and consider whether it can / should direct a school or college to provide a place.
63. The Council will ensure it has a robust contingency plan for a fulltime offer of s.19 education and social care to the family should it be unsuccessful in securing a place for September 2025.
64. The Council will apologise to Miss X and her child for the fault and service failure identified in this decision statement.
65. The Council will pay Miss X, on behalf of her child, £10,800 to acknowledge the loss of education and special educational provision over a two-year period. This figure is based on £2400 per term less 25% to reflect the reduced and inconsistent provision that has been made by the Council. If the Council has already made a payment of £300 for missed provision it can deduct this from the total (so £10,500 would be due).
66. The Council has offered Miss X £250 for communication failures. This is in line with what we would recommend for time and trouble, and I see no basis to alter this figure. If the Council has not already paid this sum it should now do so.
67. The Council pay Miss X £2000 to acknowledge the impact of the fault on her, including her inability to work, and the unexpected additional care she has been required to provide over a two-year period.

Within two months of my final decision:

68. The Council will offer Miss X a parent carer needs assessment and / or ensure there is an up-to-date child and family assessment / plan that shows how it has considered Miss X’s needs.
69. The Council will ensure that officers understand the difference between EOTAS and s.19 education, apply the correct legal test for EOTAS and amend EHC Plans to reflect where EOTAS is the decided ‘placement’. Pupils should be correctly recorded and tracked by the appropriate team according to whether they are s.19 or EOTAS.

Within three months of my final decision:

70. The Council will arrange for a Senior Manager to complete an internal review as to what has gone wrong on this case, this may include consideration of:
• Whether cases of s.19 are adequately tracked and escalated. It is difficult to understand how a pupil could end up on s.19 for two years without senior managers being alerted and addressing the matter;
• Whether arrangements for reviewing the sufficiency of local provision (schools and alternative provision) are up to date and on track;
• Whether officers have sufficient training to challenge negative school responses and are confident to direct schools in appropriate cases;
• Whether officers are holding early reviews in appropriate cases and ensuring statutory time limits for amending the EHC Plan and providing appeal rights are met.

The Council will provide the Ombudsman with details of what action it has decided to take to improve services as a result of the internal review.

71. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

72. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman