Summary: Ms X complained the Council failed to provide her son with alternative provision and the specialist provision set out in his Education Health and Care Plan when they moved to its area. She also complained it took too long to issue her son’s final Education Health and Care Plan and communicated poorly with her. We found fault by the Council on all matters. The Council agreed to apologise to Ms X and make her symbolic payment to acknowledge Y’s lost provision and the frustration and uncertainty caused to her.

The complaint

1. Ms X complained the Council failed to:
1. provide her son with alternative education or the specialist provision set out in his Education Health and Care (EHC) Plan.
2. issue her son’s final EHC Plan within the statutory timescale; and
3. communicate with her, complete the actions identified in its final response to her complaint and share the outcome of consultations with specialist placements for Y.
2. Ms X stated the Council’s actions resulted in her son missing out on the education and specialist provision he is entitled to. She also stated the Council’s actions have caused her distress, frustration, stress and financial hardship.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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 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)
6. 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)
7. 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

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

10. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Reviewing EHC Plans

11. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
13. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Transfer of EHC Plan between councils

14. Where a child or young person 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. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  

Alternative provision

15. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

What happened

17. What follows is a summary of the key events in this complaint. It does not show everything that has happened.
18. In March 2024 Ms X and her family moved from another local authority to the Council’s area. Her son Y has an EHC Plan.
19. On 3 April the Council was notified of Y’s move. Y’s EHC Plan named a school in his previous authority and so it was impractical for him to attend.
20. On 10 April the Council consulted an alternative education provider to see if it could offer Y a place.
21. On 11 April Ms X raised concerns with the Council that Y’s current EHC Plan did not correctly reflect his needs.
22. On 24 April the Council’s Governance Board decided to adopt Y’s EHC Plan. The board said it would look for alternative provision for Y as the alternative provider consulted could not offer him a place.
23. On 24 May the Council carried out an annual review of Y’s EHC Plan.
24. Following the review the Council consulted with three specialist and three mainstream schools about offering Y a placement. The schools were unable to offer Y a placement.
25. On 10 June the Council gave Ms X a post annual review report. It also referred Y’s case to its placement panel.
26. On 25 June Ms X complained to the Council. She complained the Council had not issued a final EHC Plan for Y and he was not receiving any educational provision or the specialist provision in his EHC Plan. Ms X also stated communication from the Council was poor and she did not receive replies or callbacks.
27. On 1 July the Council issued Y with a final EHC Plan. The plan included significant Speech and Language Therapy (SALT) and Occupational Therapy (OT).
28. On 18 July the Council replied to Ms X’s complaint. It said the Council correctly followed the process to transfer Y’s EHC Plan from his previous local authority. It apologised for the poor communication Ms X received. The reply was five days late.
29. On 26 July Ms X escalated her complaint to stage 2 of the Council’s complaints procedure.
30. On 29 July Ms X submitted an appeal to the SEND Tribunal. Ms X appealed sections B, F and I of Y’s EHC Plan.
31. On 22 August the Council replied to Ms X’s complaint. It did not uphold Ms X’s concerns about the transfer process for Y’s EHC plan. However it did uphold her complaint about Y not receiving alternative provision and a failure to share consultation replies with her. It apologised and recommended the following action be taken:
• a financial remedy be paid to Ms X for Y’s lost educational provision between May 2024 and July 2024.
• a plan drawn up to provide Y with alternative provision and
• to check and share consultation replies with Ms X.
32. On 3 September the Council wrote to Ms X saying it would provide a financial remedy of £2000 for Y’s lost provision.
33. Throughout September, October and November Ms X chased the Council for an update on the remaining action points from its stage two complaint reply.
34. In late January 2025 the Council put in place alternative provision for Y.
35. In May Y began attending a school placement.

Finding

The Council failed to provide Y with alternative education and the specialist provision in his EHC Plan.

36. The law is clear that councils must provide alternative provision under Section 19 if no suitable educational provision has been made for a child who is missing education through exclusion, illness or otherwise.
37. The Council accepts it did not provide Y with alternative provision for the period May 2024 to July 2024. This is fault.
38. The Council made Ms X a symbolic payment of £2000 in recognition of Y’s lost provision. This remedy is in keeping with our Guidance on Remedies and appropriately addresses Y’s lost provision between May 2024 and July 2024.
39. However the remedy offered by the Council does not address the provision Y lost between September 2024 and December 2024. I have made a recommendation below to remedy this injustice.

The Council failed to issue Y with a final EHC Plan within the statutory timeframe

40. The Council held the annual review for Y on 24 May 2024. The Council should have issued a final EHC Plan for Y by 21 June 2024. It did not issue Y’s final EHC Plan until 1 July. This was a delay of 10 days. The delay caused Ms X frustration and uncertainty.

The Council did not share the outcome of consultations with Ms X

41. The Council’s stage two complaint reply recognised it had not shared the consultation replies from settings asked to offer Y a placement. Its complaint reply recommended consultation replies were shared Ms X; however I have seen no evidence it did so. Furthermore I note Ms X continued chase the Council for it to do so. This is fault by the Council which caused Ms X frustration and uncertainty.

Poor communication

42. The Council’s communication with Ms X has been poor. The Council did not reply to Ms X’s communications; it replied to her stage one complaint late and Ms X had to follow up with the Council as it did not complete the recommendations in its stage two reply. This caused Ms X avoidable time and trouble and caused her additional frustration.

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Agreed Action

43. To remedy the injustice to Ms X, the Council will, within one month of my final decision take the following action:
• Apologise to Ms X for the delay in finalising Y’s EHC Plan, the failure to provide Y with suitable alternative education and his specialist provision and its poor communication with her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Ms X £2000 to acknowledge Y’s missed provision between September 2024 and December 2024.
• Pay Ms X £300 to acknowledge the distress, frustration and uncertainty caused to her by its failure to secure Y alternative provision until January 2025, the poor communication she received from the Council and the delay in issuing a final EHC Plan for Y.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. The Council has agreed to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman