Summary: We will not investigate this complaint about the Council’s handling of Mr Y’s transfer to a post-16 educational placement. This is because there is either not enough evidence of fault by the Council or of any fault causing significant injustice, and Mr X, the complainant, has also used his appeal rights to the Tribunal.

The complaint

1. Mr X says the Council did not help secure a suitable post-16 placement for his son, Mr Y. He also says the Council delayed in issuing a final Education, Health and Care Plan (EHC Plan). Mr X says because the Council did not identify a suitable placement, Mr Y faced uncertainty and distress over the summer holiday period. Mr X also says the Council did not arrange transport to Mr Y’s college placement leading to missed education.

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The Ombudsman’s role and powers

2. 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, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr Y has an EHC Plan, and in 2024 was attending a post-16 institution that had identified it could no longer meet his needs. Mr Y also has a savant diagnosis and is musically gifted. The Council held an annual review in February 2024, where it presented and discussed various alternative post-16 placement options with Mr X and Mr Y. In March 2024, Mr X informed the Council Mr Y had identified a college he wanted to attend. The Council sent a formal consultation to this college 3 days later. In June 2024, the Council received a response from the college stating it was not able to meet Mr Y’s needs and he did not meet its entry criteria.
8. The Council then worked with Mr X and Mr Y to identify an alternative placement, and it approached a college that had previously identified it could meet Mr Y’s needs. It did not approach any other colleges as these options had been discussed at the annual review and Mr X and Mr Y had not considered them suitable. In July 2024, Mr X then requested the Council consult with a further two colleges, which it did. One of the colleges indicated it could meet Mr Y’s needs and provision set out in his EHC Plan. In July the Council named this college in section I of Mr Y’s finalised EHC Plan.
9. When a young person is already attending a post-16 institution and it is proposed they move from one post-16 institution to another, the Council must review and amend the EHC Plan at least five months before that transfer takes place. In this case, as Mr Y was due to start his college placement in September 2024, the Council should have issued the finalised plan in April 2024. As the finalised EHC Plan was issued in July 2024, this is considered 3 months late. The Council has apologised and offered £200 as a remedy for this delay, which I find suitable for any uncertainty caused.
10. I understand Mr X feels the Council did not assist in finding suitable provision for Mr Y. However, I can see it proposed and consulted with various colleges and supported Mr Y’s college applications, which is what we would expect it to do. That Mr X feels Mr Y’s musical talent cannot be accommodated by any college other than the one to which his application was unsuccessful does not mean the Council has acted with fault. The Council identified and secured a college placement that could meet Mr Y's needs.
11. Once the Council issued the finalised EHC Plan in July 2024, Mr X then had a right of appeal regarding the named college in Mr Y’s EHC Plan, which he used. Mr X says that he and Mr X faced uncertainty over the summer holiday period as they were not sure what college Mr Y would be attending in September. However, because Mr X had engaged his appeal rights, we cannot look at this period, as set out in paragraph 4 above. Even if this were not the case, any uncertainty over this period arose because Mr X did not want the placement named in the EHC Plan, so we could not say the Council was at fault for this period of uncertainty.
12. Mr X also says the Council failed to make suitable transport arrangements for Mr Y, which led to missed education at the start of term. Transport arrangements were not included in Mr Y’s EHC Plan and this is normal. Mr X had originally applied for Mr Y’s transport to the college for which his application has been unsuccessful and had not arranged transport to the college named in Mr Y’s EHC Plan. The Council notified Mr X he would need to make a new application for transport to the college named in his EHC Plan. We could not hold the Council responsible for any missed provision as Mr X was responsible for making an application for transport to the named college in Mr Y’s EHCP.

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Final decision

13. We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council in not securing suitable educational provision or in arranging transport. The Council has also offered a suitable remedy for injustice arising from its delay in issuing a final EHC Plan. Mr X used his appeal rights, and this means we cannot investigate other parts of the complaint.

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Investigator's decision on behalf of the Ombudsman