Summary: Mrs X complained the Council has failed to provide the provision outlined in her son, C’s, Education, Health and Care plan. There were delays in the Council arranging the placement listed in Section I. The Council have agreed apologise and make a payment to recognise the injustice caused.

The complaint

1. Mrs X complained the Council have failed to provide the provision outlined in her son, C’s, Education, Heath and Care plan. She says as a result her son has missed out on educational provision.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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How I considered this complaint

5. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
6. Ms X and the Council have had an opportunity to comment on my draft decision.

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What I found

The law and guidance

7. 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
8. Section I of an EHC plan sets out “the name of the school or other institution to be attended by the child or young person, and the type of that institution.”
9. 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.
10. 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 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)
11. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers include primary school to secondary school.

What happened

12. In September 2021 C started his final year at primary school. During this time an EHC plan assessment was requested for him. An EHC plan was issued in mid-February 2022 naming a primary school in section I.
13. The deadline to apply for secondary schools closed in mid-February 2022.
14. The Council took steps to consult with two secondary schools at the beginning of March 2022. School A, which was the parental preference, said it would be unable to offer C a place. School B did not respond.
15. The Council issued an amended EHC plan at the end of March 2022 naming school B.
16. Mrs X appealed the decision to name school B in May. A tribunal hearing has been listed for 11 November 2022.
17. In the beginning of September 2022 the Council sent school B a copy of C’s EHC plan. At the same time Mrs X contacted the school about C attending and was informed he had not been placed on the roll so he could not attend.
18. C began attending school B at the end of September 2022.

Findings

19. The Council has a statutory duty to make the placement in section I available. In C’s plan the Council named school B. It therefore had a duty to ensure C had a place at school B. There is no evidence to suggest that the Council took steps to send the EHC plan to school B or secure C a place following the EHC plan being finalised in March until the beginning of September 2022. Although Mrs X did raise an appeal against the EHC plan this does not relieve the Council of its duties to ensure the provision is available for C. It is fault the Council failed to ensure C was able to receive the provision outlined in his EHC plan.
20. C was making a key transition from year 6 to year 7. The Council’s delay meant that he was unable to start school with the rest of his peers at the beginning of September. C lost out on one month of education because he had not been placed on the roll.

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Agreed action

21. Within four weeks of this decision the Council has agreed to:
• Apologise to Mrs X for the fault causing injustice identified above;
• Make a payment to Mrs X of £100 to recognise the time, trouble and worry she and her family has had to go though, chasing a school placement for their son.
• Make a payment to Mrs X, on behalf of C, for £200 to remedy the distress caused by him being unable to start a new school with his peers.
• Make a payment of Mrs X on behalf of C, of £400 for one month he was without educational provision and a school placement.

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Final decision

22. I have completed my investigation. I found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman