Summary: The Council failed to secure a special school place as set out in a pupil’s child’s Education, Health and Care (EHC) Plan. The Council also failed to secure education and special educational provision between March and October 2024. The uncertainty whether these failures contributed to the pupil’s disengagement from education and inability to sit GCSE’s is an injustice. The Council has agreed to apologise, make a symbolic payment and make service improvements.

The complaint

1. Mrs M complains the Council failed to find a special school place for her son, B. She says B missed out on education and was unable to take his GCSEs. Mrs M complains about lack of planning for B’s post-16 education.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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.
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
8. 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)

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How I considered this complaint

9. I have considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision and considered any comments received.
10. 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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What I found

What happened

11. Mrs M’s child, B, has an education, health and care (EHC) plan maintained by the Council. The Council issued B’s first EHC Plan in late Spring 2022. The Plan said B would attend a special school, although it did not name a specific school.
12. The Council was unable to find a suitable special school, so B remained on roll at a mainstream secondary school where the Council arranged additional support. B remained on roll at this school until Summer 2024, which was the end of Year 11.
13. In September 2022, B’s school arranged for him to receive alternative provision at a local college, this appears to have been due to exclusions resulting from behavioural difficulties. The Council says it provided additional funding for the school to maintain B’s placement via the alternative provision.
14. Mrs M raised concerns with the Council in February, May and June 2023 that B was not receiving the provision in the EHC Plan. The Council did follow up Mrs M’s concern with the school where B was on roll in February, advising the school should be passing funding to the alternative provision. In May/June 2023 the Council advised Mrs M to raise her concerns at the forthcoming review of the EHC Plan.
15. An annual review meeting was held in June 2023. The alternative provision recommended B receive additional tuition to be arranged by the mainstream school. There was discussion of Mrs M’s concerns about the provision at the previous school, and lack of EHC Plan provision, but the comments about the current placement were largely positive. It was noted B was happier at the new provision and was making progress.
16. The Council’s decision was to maintain the Plan, not amend it. Mrs M had a right of appeal if she disagreed with this decision, including the Council’s decision not to specify additional tuition in the Plan. The EHC Plan still stated B would attend a special school.
17. A post-16 transfer review was held in October 2023. At the time it was stated B was attending the alternative provision college course daily and the discussion centred on finding a suitable post-16 course for Autumn 2024. The Council’s decision after the review was to amend the Plan to include post-16 arrangements.
18. The alternative provision revoked B’s placement in November 2023 due to B’s behaviour. The Council says it was unaware of this until early March 2024 when it started to consult placements for post-16 and consulted the alternative provision college B had been attending. The college told the Council it could not meet need, had ended the placement in November, and B required a specialist placement as could not manage in a mainstream environment.
19. Unaware B was no longer attending the course; the Council had updated B’s EHC Plan in March 2024 to say he would remain on roll at the previous mainstream school until Summer 2024 and then attend a mainstream college. It did not name a specific institution. The Council removed some of the special educational provision from B’s EHC Plan.
20. The Council has acknowledged through the complaint process the final Plan was issued 16 weeks late following the October 2023 review. It told us this was due to staffing issues, which it has resolved. It has also implemented training and monitoring of annual review timescales in response to another Ombudsman investigation.
21. Mrs M had a right of appeal in March 2024 if she disagreed with the Council’s decision to remove provision and amend the placement to mainstream.
22. Mrs M complained to the Council in May 2024 that B had not had the special school place his EHC Plan said he should. As a result, she said he had missed out on education and was not able to take his GCSEs. Mrs M complained there were no plans in place for B’s post-16 education.
23. The Council responded a month later. The Council explained that despite extensive searches it had been unable to find a special school place for B (in 2022-3) so he remained on roll at a mainstream secondary school. The Council apologised for not updating B’s EHC Plan sooner to reflect his circumstances.
24. The Council said that during its consultations for post-16 placements it learned B was no longer attending an early college placement arranged by the school. The Council told the Ombudsman it assumed the original school was putting alternative provision in place but acknowledges it did not check this. It says schools are supposed to notify the Council when a pupil with an EHC Plan is not attending but told us this does not always happen.
25. In response to Mrs M’s complaint the Council asked the school what education was in place. The school told the Council in early June it had not been successful in engaging B in education. It had offered B a different alternative placement, and online functional skills teaching, but B had declined these.
26. The Council told us it did consider whether to refer B to its own alternative provision in June, but as B was in Year 11, and there was one month left of term, it did not do so and concentrated on finding a post-16 placement.
27. The Council sent consultations to specialist placements, but no place was secured for September.
28. The Council told us in late September 2024 consultations to secure post-16 placement were ongoing and alternative provision from the Council’s Interim Provision Service would be arranged to start the following week. However, the Council subsequently told us that Mrs M and B did not respond to the offer of interim provision, and efforts to contact the family via welfare visits to the home were unsuccessful. The Council has provided me with evidence which support this.
29. The Council considered whether to involve its Children Missing Education officer, but decided this was not appropriate as B was above statutory school age.
30. The Council acknowledges it should have arranged an annual review in Autumn 2024 when it was unable to contact Mrs M and B. B’s EHC Plan remains in place.

Relevant law and guidance

Maintaining an EHC Plan (s.42 duty)

31. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
32. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviewing an EHC Plan

33. 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 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) 
34. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
35. 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.
36. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan, including specifying the post-16 provision and naming an institution or type of institution, must be completed by the 31 March in the calendar year of the transfer.

Alternative provision (s.19 duty)

37. The Education Act 1996 says every council shall “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))

What I have investigated

38. We usually only consider events for the twelve months before someone brings their complaint to us. Mrs M complained to the Council in May 2024, received a final response in June 2024 and complained to us in August 2024.
39. I have exercised discretion to investigate the period from June 2023, when an annual review was held, until October 2024 when an offer of interim provision was made. While this is slightly more than twelve months before Mrs M brought her complaint to the Ombudsman, the review is a logical starting point, and the Council has considered this period in its own complaint investigation.
40. I have not investigated the period prior to June 2023 when B had an EHC Plan that named a special school (type of school), but no special school was provided. Mrs M did raise some concerns in February to June 2023 about lack of provision at the previous school and lack of EHC Plan provision, which the Council advised would be considered at the review meeting. The outcome of the review meeting was largely positive. I am therefore not critical of the Council for not investigating further at that time. Mrs M did not appeal the Council’s decision (not to add additional provision recommended to the EHC Plan) or raise further concerns with the Council for a period of eleven months. It was not unreasonable for the Council to have considered Mrs M’s concerns were resolved when she did not raise further complaints with the Council direct. The October 2023 review documents also did not highlight any ongoing concerns.
41. I have not investigated the period after October 2024. The family did not accept offers of interim provision and this period has not been considered under the Council’s own complaint process. Mrs M would need to give the Council an opportunity to resolve any complaint before the Ombudsman could consider this period.

Analysis

42. For the reasons given above I have only investigated the period from June 2023 until October 2024.

Failure to provide special school place

43. The decision at the June 2023 review was to maintain the Plan and make no changes. The EHC Plan at that point stated B would receive education at a special school. The Plan included 1:1 and small group interventions to support social skills and emotional regulation.
44. The Council must secure the special educational provision in an EHC Plan (s.42 Children and Families Act 2014)
45. The Special Educational Needs and Disability Code of Practice states (paragraphs 9.132) “the local authority is relieved of its duty to secure the special educational provision in the EHC plan, including securing a place in a school or college named in the plan, if the child’s parent or the young person has made suitable alternative arrangements for special educational provision to be made, say in an independent school or college or at home” (underlining is my emphasis).
46. The Council failed to secure a school of the type stated in the EHC Plan. This was fault.
47. The Council issued an amended final EHC Plan in March 2024 changing the type of placement to mainstream. Mrs M had a right of appeal to the Tribunal if she disagreed with this decision, which we would have expected her to use. The Ombudsman has no role in deciding the type of placement a young person requires, only the Council or a Tribunal can do that.
48. I find the Council failed to secure a special school place between June 2023 and March 2024, this caused injustice.

EHC Plan timescales

49. The Council has acknowledged it was 16 weeks late in issuing a final EHC Plan after the October 2023 review. It should have issued an amended Plan within 12 weeks of the review meeting. This would have provided Mrs M with earlier knowledge of the Council’s decision to change the type of setting from special to mainstream and given her a right of appeal at an earlier point. However, I note Mrs M has not used her appeal rights.
50. The Council had to issue an amended final EHC Plan by 31 March 2024 (the phase transfer deadline). The Council told us despite holding the review in October, it only started to contact colleges in late February. When it discovered B could not continue at the previous school or college, it had to issue further consultations, but these were too late for the phase transfer deadline. The Council says it met the deadline of 31 March by issuing a Plan naming a type of placement. It told me that while it acknowledges the Special Educational Needs Code of Practice (2014) suggests a specific placement should be named by 31 March, the legislation permits councils to name only a type of provision. However, the fact remains that as consultations did not start until February no placement was identified in time for the start of the term in September 2025. While the Council named a type of placement of mainstream college for September in the Plan, it failed to secure this. This was fault.

Loss of education / special educational provision

51. The Council consulted for a specialist placement in 2022 and early 2023. I cannot see it sent any further consultations until it started post-16 consultations for September 2024.
52. It is unclear what special educational provision B received while attending the alternative provision college placement between June and November 2023. The records for the June and October 2023 reviews do not provide much in the way of detail. The June review records B was attending ‘more learning’ since moving to college and was making progress. It is noted B required more support with social skills but there is no mention of the 1:1 social skills and small group interventions detailed in the Plan and whether these were in place. B was stated to be on track to obtain ‘mainly 4’s’ in 4 GCSE’s. The October 2023 review report highlighted no concerns. However, when the college later provided an explanation to the Council why it excluded B in November 2023, it gave a very different picture of a pupil unsuited for mainstream education with significant behavioural issues.
53. I have not seen that this information was not shared with the Council at the time. While the views from the school in October do not fit with the decision to exclude, we cannot investigate the actions of the school, only the Council. The Council was entitled to rely on the outcome of the October 2023 review meeting that B was on track. I note Mrs M did not provide any parental comments for that review.
54. After November 2023 B received no education. He was excluded from the alternative provision college where he had planned to take qualifications in Summer 2024. The original school, where B remained on roll, later told the Council it had offered an alternative placement and online tuition but had been unable to engage B in these.
55. The Council says the school, alternative provision college, and Mrs M did not alert it to the ending of the placement in November 2023. It found this out only in early March 2024 when it started consulting placements for post-16.
56. We would not have expected the Council to keep B’s EHC Plan under review between November and March, the Council had held a review in October and at that point no concerns were raised. The Council was not notified B had stopped attending. I find no fault by the Council for this period.
57. Once the Council knew in early March that B was not attending, the Council should have made enquiries of the school to ensure education was in place for B to take his exams, and that special educational provision in the Plan had been secured. It failed to check this, this was fault.
58. The Council gathered information about B’s education only in May/June 2024 in response to Mrs M’s complaint. It said it decided not to refer for interim tuition as there was only one month of secondary education left.
59. While the Council’s duty to B under s.19 ended in Summer 2024, when he stopped being compulsory school age, it’s duty under s.42 to secure the special educational provision in the Plan remained. However, the amount of special educational provision in the March 2024 final Plan was less than had been in the Plan prior to that. We can only consider B’s entitlement in relation to the EHC Plan that was legally in force at the time.
60. Given the Council had not yet identified a place for September, I consider it would have been prudent to make a contingency plan for interim provision before the summer holidays. Instead, a referral was not made (due to staff holidays) until the end of August, and education was not available to B until October. However, I note B did not then up the offer of interim provision once it was made.
61. B missed out on sitting exams after his placement was ended in November 2023, but I find the Council was only aware of the situation from March 2024. This is likely, on the balance of probabilities, to have been too late to have made a significant difference to the outcome, for example it may have been too late to register B for exams or for B to have made up missed learning. However, B did still miss out on education including special educational provision for one term (March to July 2024) and had this been provided it may have helped keep B engaged in learning.
62. I consider the period after October 2024 is premature for the Ombudsman to consider. The circumstances changed as provision was offered and any complaint about this period has not yet been considered by the Council.
63. If B has not already returned to education, I would encourage Mrs M to contact the Council.

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Agreed action

Within four weeks of my final decision:

64. The Council will apologise to Mrs M and B for the faults identified in this decision statement.
65. The Council will pay Mrs M, on behalf of B, a symbolic payment of £2000 to acknowledge the impact of the fault as follows:
• £1000 for the failure to secure a special school place for the period June 2023 (the start of my investigation) to March 2024 (when the EHC Plan was changed). This reflects the uncertainty whether specialist support would have led to a better outcome for B and the distress caused by the failure to secure the correct placement.
• £1000 to acknowledge the uncertainty whether missed provision between March and October 2024 has led to an adverse educational outcome for B.

Within eight weeks of my final decision:

66. The Council has provided information to reflect that it has already addressed some of the service failures identified in this decision statement. I will not repeat recommendations for service improvements which have been implemented recently. The Council has agreed to my recommendations for additional actions as follows:
• Ensure officers considering alternative provision are alert to duties under s.42 where the pupil has an EHC Plan as well as the Council’s s.19 duty.
• Ensure officers check special educational provision is secured and keep records to show that provision has been checked.
• Ensure consultations for post-16 transfers are made in good time so students can start their new courses on time.
67. The Council will decide the best way to action these recommendations and provide evidence to the Ombudsman of the actions it has taken.

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Final decision

68. I find fault causing injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman