Summary: Ms Z complains on behalf of Mr B, a young person with an Education, Health and Care Plan, that the Council failed to act promptly when Mr B was without a college placement for the 2020/21 academic year. We do not find the Council at fault. However, we find the Council failed to provide sufficient educational provision for Mr B, including the special educational provision in his Plan, during the same academic year. The Council has already partly accepted it was at fault. To remedy this, the Council has agreed to: apologise to Mr B and his mother, Ms Y, and make them several payments. The Council has also agreed to make certain service improvements.

The complaint

1. The complainant, who I shall refer to here as Ms Z, is a solicitor acting on behalf of Mr B, a young person with an Education, Health and Care Plan (EHC Plan), and his mother, Ms Y. Ms Z complains that the Council:
1. named a placement in Mr B’s 2020/21 EHC Plan that was not suitable. This relates to the naming of College Two in Section I of the final Plan from August 2020;
2. failed to act promptly when College Two told the Council it could not meet Mr B’s needs in September 2020;
3. failed to hold an early annual review for Mr B after his mother, Ms Y, requested one in September 2020. Ms Y says she asked the Council for an annual review as information about Mr B’s special educational needs in his EHC Plan was out of date and this was causing potential alternative placements to say they could not meet her son’s needs;
4. incorrectly told Ms Y that it was only able to consult with placements that were her parental preference; and,
5. failed to put in place the special educational provision in Mr Y’s 2020/21 EHC Plan and suitable educational provision while he was out of education during the 2020/21 academic year. Ms Z says the Council delayed in securing suitable tuition for Mr Y from September 2020.
2. Ms Z says Mr Y missed out on six months’ worth of education, which caused Mr Y significant distress, confusion and anxiety. Ms Z says this had a significant impact on Mr Y’s mental health and sleep. Ms Z says this led to Mr Y needing counselling therapy.
3. Ms Z says Ms Y, who is Mr Y’s main carer, was caused stress and distress during this period. She says Ms Y had no respite from her caring responsibilities, which she usually gets when Mr Y is in education.

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What I have investigated

4. Matters, which I have decided not to investigate, are set out in the last paragraph of this statement.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), 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 SEND 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)

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How I considered this complaint

12. I considered the information and documents that Ms Z and the Council sent to me.
13. Ms Z and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
14. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Education, Health and Care Plans

15. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
16. The EHC Plan is set out in sections which include:

• Section B: The child or young person’s 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 school. 

17. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
18. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
19. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child or young person 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)
20. Parents and young people have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in the EHC Plan.

Reviews of Plans

21. The SEND Code of Practice: 0 to 25 years (the Code), published by the Government, sets out what councils must do to support children with special educational needs (SEN). The Code says:

• EHC plans must be reviewed at least every 12 months. However, if a young person is moving from one post-16 institution to another post-16 institution, the review process should normally be completed by 31 March where a young person is expected to transfer to a new institution in the new academic year. In all such cases, the EHC plan must be reviewed and amended at least five months before that transfer takes place. (Regulation 18 of the Special Educational Needs and Disability Regulations 2014);
• The purpose of the annual review is to consider whether the special educational provision and educational placement is still appropriate. The annual review is not complete until the council has decided to either: maintain, cease or amend the plan; and,
• when a council decides to amend the EHC Plan, the final Plan should be sent as soon as practicable and within eight weeks of the date when the council sent the parents or young person the EHC plan and proposed amendments (SEND Code of Practice: 0 to 25 year (January 2015, as amended), paragraphs 9.196 and 9.197).

Amending an existing plan

22. The Code says that councils are not expected to amend EHC Plans on a very frequent basis. However, an EHC Plan may need to be amended at other times where, for example, there are changes in health or social care provision resulting from minor or specific changes in the child or young person’s circumstances, but where a full review or re-assessment is not necessary.
23. Where the council proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing Plan and an accompanying notice providing details of the proposed amendments.
24. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan.
25. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC Plan as quickly as possible and within eight weeks of the original amendment notice.
26. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.

Requests for a particular school, college or other institution

27. The child’s parent or the young person has the right to request a particular school, college or other institution of the following type to be named in their EHC Plan:

• maintained school and any form of academy or free school (mainstream or special)
• non-maintained special school
• further education or sixth form college
• independent school or independent specialist colleges (where they have been approved for this purpose by the Secretary of State)

28. If a child’s parent or a young person makes a request for a particular school or post-16 institution in these groups the council must comply with that preference and name the school or college in the EHC plan unless:

• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.

29. The council must consult the governing body, principal or proprietor of the school or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHC Plan.
30. The child’s parent or the young person may also request a place at independent schools or independent specialist colleges or other post-16 providers that are not on the list mentioned above.
31. The council must consider their request. But, the council is not under the same conditional duty to name the provider. The council needs to be satisfied that the institution would admit the child or young person before naming it in a Plan since these providers are not subject to the duty to admit a child or young person even if named in their plan.

What happened

32. Mr B is a young person who has an Education, Health and Care Plan (EHC Plan). He is above compulsory school age.
33. Until June 2020, Mr B attended College One, a further education college, which was named in his Plan.
34. In August 2020, the Council completed Mr B’s annual review for the 2020/21 academic year. It decided to amend Mr B’s plan and named College Two, a different further education college, as the placement in Section I of the Plan.
35. Ms Z requested the Council consult other placements as College Two had said it could not meet Mr B’s needs.
36. At the end of August, the Council emailed Ms Z. It proposed an alternative one-year residential placement at Independent Specialist School Three. It said it would look into the courses available to Mr B there and curriculum if Mr B was happy to explore this alternative placement.
37. In early September, Ms Z replied to say that Mr B had not enjoyed a previous residential placement. She said Mr B had expressed a wish to live with his family and be close to the religious building where he practiced his religion.
38. Mr B’s mother, Ms Y, contacted Independent Specialist School Three. The Council had asked whether Mr B would consider a day placement there instead. Ms Y arranged to visit Independent Specialist School Three with Mr B in mid-October.
39. In mid-September, Ms Y emailed the Council several times. She requested the Council name Independent Specialist College Four in Mr B’s EHC Plan. The Council replied to explain that it would need to consult the College before reaching a decision on whether it could be named in Mr B’s Plan.
40. Ms Z wrote to the Council on behalf of Mr B and Ms Y. Ms Z said the Council had a legal duty to secure the educational provision in Mr B’s Plan while he did not have a college placement to attend. Ms Z provided the Council with details of the times Mr B was available for tutoring outside his care package, which included attending a day centre.
41. In early October, the Council referred Mr B to a tutoring company.
42. Ms Y and the tutor agreed for the tutoring to take place at weekends.
43. In mid-November, the Council told Ms Y the tutoring must take place during college hours and ended the tutoring provision.
44. In late November, Independent Specialist School Three wrote to the Council to say it could not meet Mr B’s needs and was not suitable.
45. At the end of November, the Council told Ms Z that the first tutoring company did not have a tutor in the area with the availability or relevant expertise for Mr B’s needs. The Council said it would contact Ms Z with an update soon.
46. In mid-December, Ms Y attended a mediation meeting with the Council.
47. In January 2021, Ms Z sent a pre-action protocol letter (under the judicial review procedures) to the Council concerning the Council’s failure to provide the special educational provision in Mr B’s Plan. Ms Z has not proceeded with the judicial review.
48. The Council replied to say:

• the Council had named College Two in Section I to avoid delaying Mr B’s right of appeal to the SEND Tribunal. It accepted that there were concerns about the placement at the time it was named, but the necessary assessment by the College to confirm whether it could meet Mr B’s needs could not take place until COVID-19 restrictions were lifted. This meant the assessment was carried out in September 2020. However, following this, College Two advised that it was unable to meet Mr B’s needs and was not a suitable placement;
• following an assessment with Mr B, Independent Specialist School Three said it could not meet Mr B’s needs and was not able to offer a place;
• it reassured Ms Z that the Council was continuing to consult with possible suitable placements. However, the impact of COVID-19 restrictions meant there were delays in the possible placements being able to safely assess Mr B in person. It said it was expecting a response from two colleges, including Independent Specialist College Five, which Ms Y had requested;
• it continued to make enquiries with potential tutoring services for Mr B. However, it had been unable to find a provider that could meet Mr B’s needs. It provided a list of three tutoring services that it had approached; and,
• it provided Ms Z with a breakdown of Mr B’s care package, which included six hours per week of personal assistant support to build independence skills.

49. In February, Ms Z asked the Council to confirm the date of Mr B’s annual review meeting as Independent Specialist College Five had offered Mr B a place from September 2021. This offer was on the condition the College received an updated EHC Plan and Mr B took part in an assessment to decide whether the College was suitable for him. She said this review should be completed by 31 March 2021.
50. The Council replied to Ms Z. It said an initial meeting with a tutor had been arranged for 12 February and the annual review meeting would take place 9 March.
51. In early March, Ms Z wrote to the Council to say the tutor company had no tutors available to work with Mr B. Ms Z asked for an alternative tutor and provided the details of a tutor who was available, but only at weekends.
52. The next day, the Council agreed to the tutoring Ms Z had requested for Mr B, which took place on evenings and weekends. It arranged a personal budget for Mr B for this.
53. The Council held Mr B’s annual review meeting for the 2021/22 academic year.
54. In April, the Council issued an amended final EHC Plan for the 2021/22 academic year. This named Independent Specialist College Five as Mr B’s educational placement from September 2021.
55. In mid-May, Ms Z complained to the Council. She said:

• despite the Council naming College Two in Mr B’s EHC Plan, Mr B was not attending this placement. Between September 2020 and March 2021, she said Mr B received no educational provision;
• College Two had said it could not meet Mr B’s needs in July 2020 meaning the Council had failed to name a suitable placement before issuing the final Plan in August 2020. She said the Council failed to promptly consult potential alternative placements for Mr B;
• Ms Y had requested an early annual review of Mr B’s needs in September 2020 as she was concerned certain sections of the Plan were out of date; and,
• the Council ended Mr B’s tuition in mid-November 2020, a few weeks after it had been arranged, because the offer of tuition was restricted to college hours only.

56. In June, the Council sent Ms Z its stage one complaint response. It apologised for the slight delay in responding. The Council did not uphold Ms Z’s complaint. It said:

• in August 2020, College Two had been named in the Plan as it had been requested on several previous occasions as Ms Y and Mr B’s preference;
• it accepted College Two had been named without the College having had the opportunity to assess Mr B. This was because of the restrictions in place due to COVID-19 at the time. When College Two was able to carry out the assessment in September 2020, the College said it was unable to meet Mr B’s needs;
• it accepted College Two had already raised concerns about whether it could meet Mr B’s needs before the College was named in the Plan. It said it had offered Mr B an alternative one-year residential placement, but this was not accepted by Mr B and Ms Y;
• it continued to consult with educational institutions following this, including those requested by Ms Y. The Council said all consultations were sent promptly and within a week of the request;
• after reviewing Mr B’s file, it found no record showing Ms Y had requested an early annual review in September;
• in late September, the Council requested education through a tutoring service. The tutoring service said it was unable to meet Mr B’s complex needs in the long-term, but would try to provide a tutor until a long-term solution was found. However, in November, the Council told Ms Y that this tutoring could not go ahead because it was going to be provided outside college hours; and,
• the final Plan from March 2021 was issued by the Council within the statutory timescales for doing so. It was issued within five months of the expected transfer to a post-16 institution.

57. In July, Ms Z requested a stage two complaint response from the Council.
58. In August, the Council sent its stage two complaint response.
59. In September, Ms Z complained to the Ombudsman on behalf of Mr B and Ms Y.

Analysis – was there fault by the Council causing injustice?

Council consideration of the suitability of College Two

60. Ms Z complains the Council named a placement in Mr B’s 2020/21 EHC Plan that was not suitable. She said that College Two was not a suitable placement and should not have been named in the August 2020 Plan. Rather, Ms Z said the Council should have named the type of institution that was suitable when the parental placement had said it could not meet Mr B’s needs.
61. As explained above, we cannot direct changes to the sections of Mr B’s EHC Plan that concern his education, or name a different school. Only the SEND Tribunal can do this. This means I cannot consider whether or not College Two was suitable.
62. When the Council sent Mr B’s final EHC Plan in August 2020, this provided Mr B with appeal rights to the SEND Tribunal. If Mr B or his representatives were not happy with the placement in Section I then I consider it would have been reasonable for them to have made use of the appeal rights (part a of the complaint).
63. In comments on my draft decision, Ms Z explained she, Ms Y and the Council engaged in mediation in December 2020. Ms Z said this resolved the issue about naming a placement in Section I of the Plan. This does not change my decision above as considering mediation is part of accessing the SEND Tribunal appeal process. The fact mediation resolved the placement issue does not allow me to make a decision on the suitability of any placement. It remains that only the SEND Tribunal can decide on this.
64. The Council issued Mr B’s final 2020/21 EHC Plan in August 2020.
65. It should have issued Mr B’s final 2020/21 EHC Plan by 31 March 2020 as Mr B was due to transfer from one post-16 placement to a different post-16 placement. But, the specific timescales set out in the SEND Code of Practice for completing annual reviews were temporarily removed during COVID-19. They were replaced with the requirement for councils to complete such reviews ‘as soon as reasonably practicable’. This was applicable from 1 May to 25 September 2020. Our general view is that we would be unlikely to criticise a Council for not completing an annual review from 23 March to 1 May 2020, despite the fact they remained under a statutory duty to do so until 1 May. Due to the exceptional circumstances of the time, and the requirement for people to stay at home wherever possible, we would risk making unreasonable findings. 
66. I have considered the Council’s reasons for issuing the Plan in August 2020. Due to COVID-19 restrictions, College Two was unable to safely carry out the key assessment of Mr B’s needs to firmly state whether it could meet Mr B’s needs. However, the Council issued the final Plan to avoid further delaying Mr B’s appeal rights. I do not find the Council at fault here. Given the circumstances at the time, I find the Council acted with a view to ensuring Mr B could access his appeal rights (part a of the complaint).

College placement consultations by the Council

67. By the end of September 2020, it is my understanding that College Two had carried out its assessment, but decided it was not able to meet Mr B’s needs or offer a place.
68. Prior to this, the Council proposed an alternative one-year residential placement at Independent Specialist School Three. However, a few months later, after carrying out an assessment with Mr B, Independent Specialist School Three wrote to the Council to say it could not meet Mr B’s needs and was not suitable.
69. In January 2021, the Council explained to Ms Z that this provider was not subject to the duty to admit a young person even if named in their plan. As the Council was not satisfied that the institution would admit Mr B, it was not able to name Independent Specialist School Three in Section I. I do not find the Council at fault here.
70. I do not consider the time taken – from September 2020 to March 2021 - to find a place at a special college for Mr B was the Council’s fault. The evidence I have seen shows the Council contacted a number of special schools, including Mrs Y’s preferred choices, but was told they either could not meet Mr B’s needs or did not have a place available for the current academic year. Some of the delays in the Council receiving a response from the special colleges consulted was not due to fault by the Council. Rather, COVID-19 restrictions were affecting certain colleges’ ability to safely carry out in-person assessments with Mr B. In my view, the Council was not in a position to make a school accept Mr B in these circumstances (part b of the complaint).
71. In its contact with Ms Z during this time, the Council correctly explained that colleges should respond within 15 days of the Council’s consultation. This is in line with the SEND Code of Practice. (SEND Code of Practice, paragraph 9.83) I, therefore, do not find the Council at fault for not providing a shorter timeframe for a response.
72. In mid-September 2020, a Senior Officer in the Council’s SEND Team told Ms Y that it was not able to make recommendations about which independent specialist colleges Ms Y or Mr B may wish to request. The Senior Officer said the SEND Team must remain impartial in this respect. Instead, the Senior Officer signposted Ms Y to its Special Educational Needs and Disabilities Information Advice and Support Services (SENDIASS) service and a related service for young people, which it said could assist Ms Y with her decision. I do not find the Council at fault. It has provided Ms Y with the reasons why it was not able to provide specific advice in this instance and information on other services that could assist.

Ms Y’s request for an early annual review

73. Ms Z complains the Council failed to hold an early annual review for Mr B after his mother, Ms Y, requested one in September 2020. Ms Y says she asked the Council for an annual review as information about Mr B’s special educational needs in his EHC Plan was out of date and this was causing potential alternative placements to say they could not meet her son’s needs (part c of the complaint).
74. I have considered the email that Ms Y sent the Council on 24 September 2020. This says: “Please will you send us the date for [Mr Y’s] annual review which is due November/December and if possible make it as soon as possible so we can get things moving to avoid this scenario happening again.” This suggests the request was for the 2021/22 annual review to be brought forward.
75. In my view, based on the Council’s reply, the Council refused Ms Y’s request for an early annual review for the 2021/22 academic year. This was because it was in the process of identifying a suitable placement for Mr B. The Council was entitled to refuse Ms Y’s request for an early annual review and it has provided reasons for this. I do not find it at fault. Without fault in how it reached its decision, I cannot question the content of the Council’s decision.
76. As explained above, as Mr B was expected to transfer to a new post-16 placement in September 2021, the Council should have ensured the annual review was completed by 31 March 2021. Based on the evidence I have seen, the Council carried out the annual review meeting in early March. Shortly after issuing a draft Plan, the Council issued Mr B’s final amended EHC Plan naming Independent Specialist College Five on 1 April 2021. I do not find this delay of one day amounts to fault causing significant injustice.
77. Where I do find the Council at fault, however, is the time taken to obtain up to date advice from an educational psychologist (EP).
78. In response to Ms Z’s pre-action protocol letter, the Council accepted it had attempted to get updated advice from an EP to inform Mr B’s 2020/21 Plan. However, it said COVID-19 restrictions had affected the EP’s ability to assess Mr B during the summer term 2020.
79. As explained above, the statutory timeframes for completing such annual review-related actions were reintroduced from 25 September 2020. In my view, from this point onwards, the Council should have taken action to promptly arrange the EP advice and, after receiving this, issued an updated amended Plan for the 2020/21 academic year. Based on the evidence I have seen, the EP advice was not provided until 15 January 2021. This delay is fault. The Council failed to update Mr B’s Plan until 1 April 2021. In my view, this meant Mr B missed out on having a Plan that fully reflected his needs between September 2020 and end of March 2021.

Consulting parental preference

80. Ms Z complains the Council incorrectly told Ms Y that it was only able to consult with placements that were her parental preference (part d of the complaint). Ms Z said the Council’s position was incorrect. She said, when there was no request for a specific placement, the Council had a duty to name a placement or type of placement that was suitable in Section I.
81. Based on the evidence I have seen, Ms Z’s complaint focused on the expectation that, as the Council had not promptly found an alternative placement for Mr B, it should have named the type of placement that was suitable in Section I.
82. In this case, I am not persuaded this action would have affected the outcome for Mr B. For the reasons explained above, I have not found the Council at fault for the time taken – from September 2020 to March 2021 - to find a place at a special college for Mr B. I have seen evidence that, when consulting colleges, the Council made efforts to confirm whether the college could accept an in-year transfer for the 2020/21 academic year. As explained above, I have also not found the Council at fault for completing the 2021/22 annual review process on 1 April 2021 when it issued Mr B’s final amended EHC Plan naming Independent Specialist College Five. I, therefore, do not uphold part d of Ms Z’s complaint.

Educational provision arranged by the Council

83. In August 2021, the Council sent its stage two complaint response. It said it upheld Ms Z’s complaint that the Council failed to provide educational provision for Mr B between September 2020 and end of February 2021. This is fault, which caused Mr B injustice as he missed out on educational provision during this time. To remedy this, the Council offered a remedy of £400 per month for the lack of provision (a total of £2,000 for five school months after deducting holidays). This is in line with the Ombudsman’s guidance on remedies, which states: where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 to £600 per month. I consider the payment offered by the Council – which is in the mid-range – to be suitable as the Council put in place some provision through a day centre and support through Mr B’s care package.
84. It is my understanding that the Council agreed to the tuition that Ms Y had sourced in early March 2021. In my view, the Council arranged some educational provision from this point onwards. However, I am not satisfied the Council took sufficient steps to arrange Mr B’s special educational provision, as detailed in his Plan. This is fault. This caused Mr B injustice as he missed out on this provision until the end of the summer term 2021. I have, therefore, recommended the Council make a slightly lower payment of £300 per month for this time period (March to end of July 2021, which I have calculated as four and a half school months after deducting holidays). This is because the Council arranged some educational provision during this time and the care package support remained in place.
85. The Council has commented on the volume of correspondence and requests from Ms Y to consult colleges. In my view, it is likely that, on balance, the Council’s failure to promptly arrange educational provision for Mr B while he was without a placement contributed to the level of contact. This failure caused Ms Y distress and uncertainty about the impact the lack of provision was having on Mr B’s educational progress.
86. The Council offered to make payments of £200 to Mr B and £200 to Ms Y to recognise the distress and uncertainty caused. I consider these payments are suitable and in line with the Ombudsman’s guidance on remedies. However, I have recommended an additional payment of £150 for the significant time and trouble Ms Y was put to complaining and chasing the Council for tutoring options for Mr B.
87. Ms Z complains that, in mid-November 2020, the Council told Ms Y the tutoring must take place during college hours. It is my understanding that the tutor was only available during evenings and weekends. The Council ended the tutoring provision that had been arranged through a tutoring provider it had contacted.
88. In the Council’s letter to Ms Z from January 2021, it said the Council decided, given Mr B’s busy weekday social care package, Mr B should have time to rest during the weekend and any tuition should occur during usual college hours. This was a decision the Council was entitled to make. Without evidence of fault in how it reached this decision, I cannot question its content. This does not affect my findings of fault in the preceding paragraphs.
89. In any case, it is my understanding that, shortly after the Council’s decision, the same tutoring service withdrew its offer as it did not have a tutor with the relevant expertise to meet the needs of Mr B.

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Agreed action

90. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Mr B for the fault causing injustice identified above;
2. apologise in writing to Ms Y for the distress caused and time and trouble she was put to;
3. make Ms Y the payment of £200, which the Council has already offered, to remedy the distress caused;
4. make Ms Y a payment of £150 for the significant time and trouble she was put to complaining and chasing the Council to arrange educational provision for Mr B;
5. make Mr B the payment of £200, which the Council has already offered, to remedy the distress caused;
6. makes Mr B the payment of £2,000, which the Council has already offered, for the lack of educational provision between September 2020 and end of February 2021 (a total of five school months after deducting holidays); and,
7. make Mr B a payment of £1,350 for the missed educational provision between March to end of July 2021 (which I have calculated as four and a half school months at £300 per month).
91. These recommended payments are in line with the Ombudsman’s published guidance on remedies.
92. Within two months of my final decision, the Council has also agreed to make the following service improvements:
1. establish a mechanism to identify any young people aged between 19 and 25 years old with EHC Plans that are without educational provision because the Council has yet to identify a placement for them that they can attend. This mechanism should provide guidance to staff on the prompt action they should take to seek to resolve any such cases (including putting in place the special educational provision in the young person’s EHC Plan while the Council identifies a suitable placement and this placement becomes available). The Council should report back on this, including how it intends to monitor this mechanism; and
2. share this decision with relevant staff members.
93. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

94. I have completed my investigation.
95. I cannot investigate part a of Ms Z’s complaint. This is because I cannot direct changes to the sections of Mr B’s EHC Plan that concern his education, or name a different school. Only the SEND Tribunal can do this.
96. I have decided not to uphold parts b and d of Mr Z’s complaint. This is because I have not seen any evidence of fault by the Council causing injustice.
97. I have decided to uphold parts c and e of Ms Z’s complaint. This is because I have seen evidence of fault by the Council causing Mr B and Ms Y injustice. The Council has already offered certain remedies, which go some way to remedying this. However, the additional remedies above are suitable ways for the Council to full remedy this, which it has agreed to.

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Parts of the complaint that I did not investigate

98. Ms Z complains about Council action dating back to November 2019.
99. As explained above, the law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
100. Ms Z complained to the Ombudsman in September 2021. I consider she could have complained sooner if she wished to pursue matters dating from between November 2019 to August 2020.
101. I, therefore, consider an investigation from August 2020, when Mr Y’s final EHC Plan was issued, is fair and justified.

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Investigator's decision on behalf of the Ombudsman