Summary: Mrs X complained about the Council’s failure to provide her son, who has an Education, Health and Care Plan, with a school place or alternative provision when he moved into its area. On the evidence seen so far, we found the Council to be at fault. It took nearly a term to find a suitable school and did not make any interim arrangements to meet her son’s special educational needs. To remedy the injustice arising from these faults, the Council has agreed to apologise, make a payment to acknowledge her distress and lack of provision. It will also take action to improve its service when children with special educational needs move into its area.

The complaint

1. Mrs X complains the Council has failed to provide her son, Y, with a school placement or alternative provision after they moved to the area.
2. She says this has caused him to miss out on education and specialist provision as well as preventing him from making friends in his new area.

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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. 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)
5. 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

6. 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.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans

8. 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.

Transfer of Education, Health and Care Plans

9. Where a child moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. (Section 15 Special Educational Needs and Disability Regulations 2014)  
10. The requirement for the child to attend the school named in the EHC plan continues after the transfer. However, where attendance is impractical, the new council must place the child at an appropriate school other than that specified, until the EHC plan is formally amended. (Special Educational Needs Code of Practice 2015)

Duty to secure provision

11. 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 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

Key events

12. I have summarised below the key events: this is not intended to be a detailed account of everything that happened.
13. Mrs X’s child, Y, has special educational needs and an EHC plan. In 2023, the family lived in the area of a different council (Council D). In July 2023, Mrs X notified the Council of their intention to move into its area and Y would need to be found a new school place. The Council explained it could not do so until a definite moving date was known.
14. In late August 2023, Mrs X told the Council they would be moving at the end of September 2023. The Council also received a copy of Y’s ECH plan from Council D.
15. Mrs X advised the Council she wanted Y to attend a particular independent school, School T. This was outside of the Council’s catchment area and required the authority of a decision-making panel to seek a place there. A week later the Council agreed to consult with School T.
16. The Council also consulted with several other schools including those in the mainstream and independent sectors.
17. All consulted schools, including School T, were unable to offer Y a place.
18. In October 2023, Mrs X requested alternative education be put in place while a school place was found.
19. She also made a formal complaint and raised the matter with her local MP. She explained how Y was suffering from being out of school and unable to make friends.
20. According to Mrs X, a tutor was supposed to start in November 2023, but failed to attend. Despite being aware of this, she says the Council took no action to find a replacement.
21. In response to Mrs X’s complaint, the Council accepted it not had not met its legal duty to fulfil the requirements of Y’s EHC plan, despite making its best efforts to do so. It also accepted it had a duty to provide home tuition whilst a school place was found.
22. Dissatisfied with this outcome and the fact Y remained out of school, Mrs X brought her complaint to the Ombudsman.
23. Since bringing her complaint to us, Y has been offered a place at an independent school. This was accepted by Mrs X, and Y has been attending since mid-January 2024.

Analysis

24. Where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can consider whether the council has failed to make purposeful efforts to identify a school place.
25. In this case, the Council had clear legal duty to ensure there was a continuity of education and SEN provision when Y moved into its area. Mrs X provided evidence that the Council was made aware of Y’s circumstances at the appropriate time. The Council correctly contacted the Council D and received a copy of Y’s current EHC plan. I am satisfied it was aware that arrangements had to be made by late September 2023.
26. The case records show the Council acted promptly when it consulted School T in early September. If a place had been offered to Y it is likely he would have been in school around the time he moved into the Council area in late September 2023. There was no fault up to this point. I say this because Mrs X had a clear preference for Y to attend a particular school and the Council made its best efforts to achieve this. There was no duty on the Council to contact School T earlier than it did.
27. The records show the Council was proactive in consulting with several schools, both independent and mainstream, when School T was not available. I also find the Council maintained regular contact with Mrs X, although I appreciate she holds a different view about this matter.
28. Despite seeing evidence of some positive work, I cannot ignore the Council’s absolute legal duty to ensure special educational support as set out in the EHC plan was in place when Y moved into its area in late September 2023.
29. Once it was known that School T was unavailable, the Council should have immediately made arrangements for alternative provision whilst further consultations were carried out. The Council’s chronology shows it did not consider doing so until mid-October 2023. Its records are disappointingly unclear about what happened afterwards. Mrs X has told me home tuition was due to start in mid-November 2023 but the tutor failed to attend and no action was taken to address this. As a result, Y was left without any education or SEN provision from late September to mid-January 2024.
30. This was fault that caused an injustice to Mrs X and Y. This injustice requires a remedy.
31. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:

• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration. In this case, I am satisfied Mrs X experienced both anxiety and uncertainty during the time Y was without a school place; and
• where there has been a loss of education, the Ombudsman usually recommends between £900 and £2400 per school term. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made. I consider an appropriate figure in this case is £1500. In determining this figure, I have taken into account that Y received no education or SEN support for slightly less that one term.

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Agreed action

32. To remedy the identified faults, the Council has agreed to take the following action, within four weeks of the final decision.

• Apologise to Mirs X.
• Pay £1500 to Mrs X to recognise the impact of Y being out of school and lack of support for his special educational needs.
• Pay Mrs X £250 to recognise the avoidable distress and frustration the lack provision caused her.
• Issue written reminders to relevant staff to ensure they are aware of the Council’s duties when a child with an EHC plan moves into its area, including the need to arrange alternative provision if there is delay in finding a school place.

33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have found the Council to be at fault and made recommendations to the Council to remedy the injustice and improve its service. The Council has agreed with my recommendations. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman