Summary: Ms X complained the Council failed to ensure her daughter, F received an education in line with her Education, Health and Care (EHC) plan between February and June 2023. The Council was at fault. It named a school in F’s EHC plan which she could not attend and therefore she received no education during this period. The Council agreed to make payments to Ms X to recognise F’s loss of education and the distress, uncertainty and time and trouble caused.

The complaint

1. Ms X complained the Council failed to ensure her daughter, F, received an education in line with her Education, Health and Care (EHC) plan between February and June 2023 after it named a school in the plan which F could not attend. Ms X said the named school was not consulted and had no place for F.
2. Ms X said F has missed out on education during this period which has caused distress, uncertainty and time and trouble.

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The Ombudsman’s role and powers

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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How I considered this complaint

7. I spoke to Ms X about her complaint and considered information she provided.
8. I considered the Council’s response to my enquiry letter.
9. Ms X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

General section 19 duty

10. 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.
11. 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)

Education, Health and Care (EHC) plans

12. 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.
13. 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.
14. 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. 
15. 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.

Due diligence

16. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;

• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

The SEND Tribunal

17. There is a right of appeal to the SEND Tribunal against the content of the final EHC plan including the placement named in section I. Parents must consider mediation before deciding to appeal.

What happened

18. Ms X has a daughter, F, who in 2021 attended a mainstream primary school, School A, with an EHC plan. F is a disabled child and has learning and physical difficulties. In 2021 Ms X wanted the Council to name a special school in section I of F’s EHC plan. Following an annual review of the EHC plan in November 2021 the Council agreed F should attend a special school.
19. Ms X complained to us in May 2022 because the Council had not found a special school and had not issued F’s amended EHC plan. F stopped attending School A in October 2022. We investigated and found the Council at fault for the delay in finding F a suitable special school and for delays in issuing the final EHC plan. The Council agreed following our final decision in January 2023 to issue F’s amended EHC plan without further delay.
20. Records show the Council consulted with another mainstream primary school, School B, in October 2022. School B asked the Council for F’s EHC plan and other relevant documents in December 2022.
21. The Council issued F’s final amended EHC plan at the start of February 2023 naming School B in section I. The Council did not receive a consultation response from School B before naming it on the plan. Section F of the final plan outlines provision F is entitled to which includes:
• speech and language provision;
• 1:1 support from a teaching assistant;
• small group activities; and
• occupational therapy and physiotherapy programmes.
22. Ms X complained to the Council in March 2023 about its decision to name School B. Ms X said she had spoken with staff at School B said the school did not have F on roll, were not expecting her to attend and in any case could not meet her needs and it was full. Ms X said F remained out of education without a suitable school to attend and without any offer of alternative provision.
23. Ms X appealed the naming of School B in F’s final EHC plan to the SEND tribunal. Following mediation in May 2023 the Council sent out more consultations with schools. School B responded confirming it could not meet F’s needs. In June 2023 the Council agreed to name a special school, School C for F to start there in September 2023. The Council put tuition in place for F during June and July 2023.
24. The Council responded to Ms X’s complaint at both stage 1 in June 2023 and issued a final response in July 2023. It apologised for the delay in responding. The Council said it named School B because it was the nearest appropriate mainstream school for F to attend while it sought a special school. The Council confirmed F now had provision in place from June onwards and then she would start at School C in September 2023.
25. Ms X remained unhappy and complained to us.
26. In response to my enquiry letter the Council accepted it should have put alternative provision in place sooner for F. It confirmed it did not receive a consultation response from School B before it named it in the plan and there is no record of F ever being on roll at School B. It also said it did not receive any information from School B confirming how it would provide the provision set out in F’s EHC plan. The Council accepted it should have followed this up, given it did not receive a response to its consultation. The Council accepts F did not have suitable provision in place, in line with her EHC plan, prior to June 2023.
27. The Council proposed to offer Ms X £1500 to acknowledge F’s missed education and £500 to recognise the distress and time and trouble caused.
28. Records show F is now attending School C and Ms X says she is progressing well.

My findings

29. While it is for the Council to decide what school to name in an EHC plan, the school must be available for the child to attend and be able to provide the provision in line with section F. It is the legal duty of the Council to ensure provision is in place. Given School B did not respond to the consultation we would expect the Council to carry out due diligence to make appropriate checks before naming School B. The Council has accepted it did not make such checks and that was fault. Had the Council done so it would have likely named a different school in F’s EHC plan, with education she could access.
30. While Ms X ultimately had a right of appeal to the SEND tribunal against the naming of School B, F was not on roll at school B, could not attend and so she could not receive any education or the provision in her plan from February 2023 onwards. Ms X made the Council aware of this after it issued the plan. The Council did not make any other arrangements. The Council has accepted it was at fault for failing to arrange alternative provision. This meant F did not receive a suitable education or any of the special educational provision in her EHC plan until the Council put provision in place from June 2023 onwards. This has affected F’s social and educational development during this period causing her and Ms X distress and uncertainty.
31. The Council’s complaint handling was also poor. It delayed responding to Ms X’s complaint at stage 1 by over two months which was fault. It caused Ms X frustration and uncertainty.
32. We welcome the Council’s acknowledgement of fault in this matter and its proposed payments to remedy the injustice. In line with our guidance however I have made further recommendations to remedy the injustice caused.

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Agreed action

33. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Ms X and pay her £500 to recognise the distress and uncertainty caused to her by the Council’s failure to ensure F received a suitable education between February and June 2023 and by its delay in responding to her complaint.
2. Pay Ms X £2600 to acknowledge F’s loss of education and special educational provision during that period.
3. Review its procedures for carrying out due diligence when concerns are raised that a child is not receiving an education in line with an EHC plan. This is to ensure processes are in place for the Council to take action at an early stage and if necessary, consider whether alternative provision is appropriate.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I completed this investigation. There was fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman