Summary: The Council was at fault for failing to find education for
Mr X after he moved into its area. This caused – and continues to cause – him an injustice. His mother was also caused a financial injustice, as she had to pay for support while Mr X should have been in college. The Council has agreed to take action to remedy their personal injustice, and it will take steps to improve its service.

The complaint

1. The complainant, whom I refer to as Dr Y, complains on behalf of her son, Mr X. Mr X is a young adult with Down’s Syndrome and autism.
2. Dr Y complains that, although it has been more than a year since the family moved into the Council’s area, Mr X remains without an educational placement. She also complains that the Council has repeatedly failed to respond to her when she has made contact about Mr X’s education.
3. Dr Y says Mr X has lost self-care skills, and he has become bored and marginalised. She says she has suffered distress from the Council’s poor communication. And she also says she has suffered considerable financial loss, as she had to pay for care while Mr X should have been in college.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with a council’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 considered information from Dr Y and the Council. Both had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The special educational needs and disability (SEND) code of practice

8. A child or young person with special educational needs may have an education, health and care (EHC) plan. This document sets out their needs and what arrangements should be made to meet them.
9. The EHC plan is set out in sections which include section I (the name of the educational placement).
10. A ‘young person’ is defined as someone with an EHC plan who is over the compulsory school age and under 25.
11. When a young person moves between council areas, arrangements must still be made for them to attend the placement named in their EHC plan, unless this would be impractical.
12. If their attendance at the named placement would be impractical, the new council must place them temporarily at another appropriate educational institution until it formally amends their EHC plan (and names a new placement).
13. The new council must review the young person’s EHC plan within three months of the transfer, or within a year of the plan being made or last being reviewed – whichever is the later.
14. If a council proposes to amend an EHC plan following a review meeting, it must send the child’s parent an amendment notice. This should happen within four weeks of the meeting.
15. The council must then issue the amended EHC plan as quickly as possible, and within eight weeks of the original amendment notice.

What happened

16. In March 2023, the council for the area Mr X lived issued his EHC plan. He was attending “A special school for pupils with severe and complex learning difficulties for the post 16 phase of his education”. From September 2023, he was due to attend a local further education college.
17. In September, Mr X and his family move into the (new) Council’s area. Their new home was around 200 miles from their previous one.
18. In November, Dr Y complained to the Council. She said it had failed to find education for Mr X. The Council acknowledged that its consultations with new placements were taking longer than expected.
19. In January 2024, Dr Y complained again. The Council apologised, and, again, acknowledged that:
• Due to delays and errors in the consultation process, an appropriate educational placement had yet to be named in Mr X’s EHC plan.
• Communication with Dr Y about the consultation process had not been frequent enough, and she had not had a response to her most recent email.
• The Council had requested social care support for Mr X while he was out of education.
20. In August – by which point, Mr X had been out of education for a full academic year – the Council told Dr Y that it had received a positive consultation. However, it said it would need to ask its panel to approve the placement, and it did not know when this would happen.
21. Dr Y tells me that Mr X remains out of education, and that she still does not know when (or if) the Council’s panel will approve his new placement.
22. Dr Y has also provided evidence that she has spent almost £10k on support for Mr X while he has been out of education. She says that, had he been in college, she would not have needed to spend this money.

My findings

23. The Council had two relevant duties to Mr X when he moved into its area.
• The first (with the statutory timescales in mind) was to amend his EHC plan, naming a new placement, by June 2024 (at the very latest).
• The second – as his existing placement was too far away to travel to – was to temporarily place him somewhere else pending the EHC plan review.
24. The Council, by its own admission, did neither of these things, for which it was at fault.
25. Mr X remains without the education he should be receiving under the terms of his EHC plan. This means he has suffered, and continues to suffer, an injustice from missing education over a prolonged period.
26. The Council has also accepted that its communication with Dr Y has not been up to standard. This likely caused her distress.
27. Dr Y spent money on provision for Mr X while he was out of education. It seems plausible that this outlay could have at least partly been avoided had some educational provision been in place. This means the lack of education for Mr X has likely caused Dr Y a financial injustice.
28. The Council should take action to remedy the personal injustice caused to Mr X and Dr Y. It should also take steps to improve its service.

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Agreed action

29. Within a month, the Council has agreed to:
• Issue Mr X’s amended EHC plan, naming a new placement.
• Write to Dr Y and invite her to provide receipts, or other satisfactory evidence, for what she spent on support for Mr X in the period when the Council was providing him with neither education nor social care support.
• Reimburse Dr Y for what she spent on support for Mr X during that period.
• Make a symbolic payment to Dr Y of £500 to recognise the distress she likely experienced from having to try and secure education for Mr X over the period of a year. This payment also takes into account the communication failures the Council has acknowledged in its complaint response.
• Make a symbolic payment to Mr X of £3,500 to recognise the injustice that he has suffered from being without education for more than a full academic year.
• Write to Mr X and commit to making further symbolic payments of £500 for every half-term he continues to remain out of education (starting on 4 November 2024).
30. Within three months, the Council has agreed to send us an action plan which sets out how, in future, it will overcome similar problems in delivering education to young people who have moved into its area.
31. The Council will provide us with evidence it has done these things.

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Final decision

32. The Council was at fault, and this caused injustice to Dr Y and Mr X.

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Investigator's decision on behalf of the Ombudsman