Summary: Miss X complained the Council failed to share her child’s Education, Health and Care Plan with their college, contributing to a breakdown in the placement. Miss X also complained the Council failed to put alternative provision in place, failed to communicate properly and did not properly respond to her complaints. We have found the Council acted with fault. This led to Z missing education provision and caused avoidable distress, frustration and time and trouble for Z and Miss X. The Council has agreed to apologise to Miss X and Z and pay a financial remedy in recognition of Z’s missed education provision. The Council has also agreed to pay a financial remedy in recognition of the time and trouble Miss X experienced, as well as ensure it has reimbursed costs it already agreed it would.

The complaint

1. Miss X complained the Council:
1. Failed to share her son’s Education, Health and Care (EHC) Plan with his college setting at the start of the academic year.
2. Delayed putting suitable alternative provision in place when her son’s college placement broke down.
3. Delayed dealing with her complaint about these matters.
2. Miss X said these failings had a significant impact on her son’s mental health, wellbeing and educational attainment. Further, Miss X said her own health and wellbeing was significantly affected by the Council’s failings. Miss X also incurred costs due to the Council’s delays.

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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. 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)
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)

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What I have and have not investigated

7. Paragraphs 5 and 20-23 set out the Ombudsman’s jurisdiction to investigate complaints where a relevant appeal right exists. The Council issued Z’s final EHC Plan in February 2023. This plan did not name College J as Z’s post-16 educational setting, or refer to any transition to further education. As set out in this statement, the Council confirmed this was due to a failure to properly explore these matters with Miss X and Z at the time, leading to a lack of transition planning and consultation. The Council accepted this was fault and a missed opportunity.
8. I have considered whether Z’s lack of education provision from College J could be a matter related to the placement named in his EHC Plan, which is a matter that comes with a right of appeal to the SEND Tribunal. In this case, I consider it would have been unreasonable for Miss X to exercise this right of appeal. While the Council did not consult with College J, it expressed no objection to Z attending that I have seen. It had begun discussions with College J in September 2023 and likely would have shared Z’s EHC Plan with the setting, but this did not happen as Z stopped attending. There was no dispute about the setting in the evidence I have seen. It was therefore unlikely there would have been any disagreement or adverse decision requiring Miss X to have appealed. I therefore find the Ombudsman is not precluded from considering Miss X’s complaint about Z’s education provision between September 2023 and June 2024.
9. In June 2024, the Council issued a final amended EHC Plan for Z. This came with a new right of appeal to the SEND Tribunal. Any concerns about Z’s education provision after this point are directly linked to the Council’s decisions about the content of Z’s amended final EHC Plan. The restriction in paragraphs 20-23 apply and I cannot consider any complaint about Z’s loss of education provision after this.

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How I considered this complaint

10. I considered evidence provided by Miss X and the Council, as well as relevant law, policy and guidance.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
12. 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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Relevant legislation, guidance and policy

Alternative provision

13. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
14. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
15. For young people over compulsory school age but under 18, the Council has a power, but not a duty, to provide alternative education provision. When deciding whether and how to use that power, councils must have regard to the statutory guidance.
16. The statutory guidance says that councils must ensure that any education provided is suitable and that they should keep this under review.

Education, Health and Care (EHC) Plans

17. 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.
18. 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)

Post-16 transfers

19. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer. 

Appeal rights and the Ombudsman’s jurisdiction

20. There is a right of appeal to the Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.
21. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
22. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
23. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Council’s complaints procedure

24. The Council operates a two-stage complaints procedure. At stage one, the Council will acknowledge the complaint within five working days of receipt. It will then respond to the complaint within 10 working days of its acknowledgement. The Council will therefore respond to stage one complaints within a maximum of 15 working days.
25. At stage two of its complaints procedure, the Council will acknowledge complaints within five working days of receipt. The Council says it will then respond to complaints within 20 working days of its acknowledgement. The Council will therefore respond to complaints within a maximum of 25 working days of receipt. The Council says it will tell complainants if there are likely to be delays at either stage and will provide progress updates.

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What I found

Key events

26. Below is a summary of the relevant key events. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
27. In February 2023, when Z was in year 11, the Council issued a final EHC Plan.
28. In September 2023, Z started at College J. The Council did not share Z’s EHC Plan with College J ahead of Z starting.
29. On 14 September 2023, Miss X wrote to the Council to highlight issues Z experienced when starting at College J. The placement was not progressing smoothly and special educational provision Z needed was not in place. The Council responded to Miss X, apologising for the confusion around Z's EHC Plan not being sent to College J.
30. Following further exchanges of correspondence, I understand Miss X wrote to the Council on 25 September 2023, confirming Z could not return to College J, as the placement had broken down. Miss X asked what the implications would be for Z’s EHC Plan and whether further assessments were needed. I understand the Council responded to Miss X, saying it was looking at other options for Z. Miss X began contacting other services set out in the Council’s local offer, but was advised they could not help Z. These services referred Miss X back to her contacts at the Council.
31. The Council said in October 2023, it agreed funding in principle for alternative provision for Z. Later that month, the Council and Miss X met to discuss possible options. I understand from Miss X that the options proposed were unsuitable for Z, as they were the options Miss X had already unsuccessfully explored through the Council’s local offer.
32. In November 2023, Miss X said she sought further advice and support from the Council about alternative provision arrangements for Z. Miss X asked about private tutoring arrangements. The Council did not respond.
33. In December 2023, Miss X sought an update from the Council and submitted a formal complaint. The Council acknowledged receipt of Miss X’s complaint. In late December, Miss X said she had identified a suitable course that could start in January 2024, but could not afford to fund this directly. Miss X asked whether the Council could consider a personal budget for Z.
34. In January 2024, Miss X sought a response from the Council. Miss X asked the Council if it would approve funding for a laptop for Z and for an online study course she had identified. The Council said it would agree to fund the online course, but said funding a laptop would be outside the scope of a personal budget. Miss X queried this decision and explained why a laptop would be needed. The Council later provided Z with access to a laptop.
35. In February 2024, Miss X chased the Council for a response. Miss X also sought a response to the complaint she had made in December 2023.
36. In March 2023, the Council said Miss X sent a proposal for Z’s education arrangements, which included utilising a budget for maths tuition. Following further correspondence, the Council confirmed it would provide funding for an online course and maths tuition, as well as other practical lessons. The Council said it would reimburse Miss X £200 she paid for an online course registration. The Council also proposed reviewing Z’s EHC Plan in April 2024.
37. Z started maths tuition in mid-April 2024. The Council apologised for not arranging the review of Z’s EHC Plan as quickly as hoped. The review took place at the end of April 2024.
38. In June 2024, the Council finalised funding arrangements for Z’s practical lessons. The Council said due to the time taken to identify the most suitable course for Z, Z could not start before the summer break.
39. On 14 June 2024, the Council issued Z’s amended final EHC Plan.
40. In July 2024, Miss X sought an update on her complaint. In August 2024, the Council apologised for issues with its online complaint system and invited Miss X to share any further information relevant to her complaint.
41. On 16 August 2024, the Council responded to Miss X’s stage one complaint:
• The Council apologised for the delay in responding and the frustration this caused.
• The Council apologised that Z’s time at College J was not successful. The Council said there had been a breakdown in its usual procedures, meaning it did not share Z’s EHC Plan with College J and had been unaware of Z’s application there. It said it had consulted with College J in September 2023, when Z started.
• The Council said it agreed to fund alternative provision for Z once he stopped attending College J, but it had taken some time to get the provision in place. The Council accepted it had taken too long. It also apologised for its communication with Miss X.
• The Council set out the steps taken to secure Z with maths tuition. It said it would not fund provision over the summer holidays, but was prepared to offer additional provision from September 2024 to offset any missed provision.
• The Council said it had agreed to retrospectively fund some practical lessons between June and September 2024. The Council said it would not fund lessons that took place prior to this.
• The Council upheld Miss X’s complaint. It said it had taken too long to put alternative provision in place for Z and apologised.
42. Miss X escalated her complaint to the second stage of the Council’s complaints procedure:
• Miss X set out the sequence of events leading up to Z’s admission to College J. Miss X said there had been professionals involved in coordinating the transition and she had also been in contact with College J prior to admission. However, Miss X said on Z’s first day, he had been overwhelmed and the situation deteriorated to the point Z could no longer attend. Miss X asked the Council to confirm its procedure for sharing EHC Plans with educational settings.
• Miss X set out the difficulties she experienced trying to communicate with the Council.
• Miss X explained she sought funding for provision over the summer holidays because of the lengthy gap in Z’s provision to date. She was concerned a further break over the summer would affect Z’s reengagement.
• Miss X asked the Council to reconsider its decision not to fund practical lessons from before June 2024. Miss X highlighted the benefits Z experienced in previous alternative provision arrangements and noted his EHC Plan referred to this.
• Miss X said she had done all she could to ensure Z had suitable provision in place, but the Council had not understood the impact this had on Z and Miss X’s health and wellbeing. Miss X also said the Council had unacceptably delayed responding to her complaint.
43. On 20 September 2024, the Council responded to Miss X’s stage two complaint:
• The Council appreciated Miss X felt it had not fully accounted for the impact on Z’s mental health and education, as well as Miss X’s distress.
• The Council apologised Z had to wait for alternative provision and accepted this would have caused frustration and distress.
• The Council accepted its stage one complaint response had not acknowledged some of Miss X’s previous correspondence about Z’s personal budget and maths tuition. The Council also apologised for its late communications, which had in turn led to late tuition arrangements. The Council said it had identified lessons from Miss X’s complaint.

Analysis

Did the Council act with fault?

Sharing EHC Plan with college

44. The Council told me when planning for transfers to post-16 education settings, it will share the child’s EHC Plan during consultations with prospective settings, while deciding what setting it should name in the EHC Plan. The Council said in cases where a child or young person has enrolled in a post-16 setting outside of the consultation process, the Council will share a copy of their EHC Plan with the setting, providing it has consent to do so.
45. In this case, the Council said it issued Z’s EHC Plan in February 2023. The Council said Z’s EHC Plan did not include arrangements for Z’s Post-16 education, which it should have. The Council said it should have discussed the plan for these arrangements with Miss X and Z at the time, but failed to do so. It said this was a missed opportunity to address Z’s post-16 education arrangements. The Council said because it did not discuss this with Miss X and Z when it should have, it carried out no consultations with prospective settings. Because of this, the Council did not send Z’s EHC Plan to College J when it would normally have done. From its complaint response, I understand the Council had begun discussions with College J in September 2023, but Z had already started by this time and stopped attending shortly after.
46. Paragraph 19 sets out what the Code of Practice (the Code) says about planning for post-16 education placements. The Council accepted it did not follow this guidance, as it had not finalised Z’s post-16 education arrangements by the end of March 2023 and failed to properly discuss this with Miss X and Z. I have found the Council at fault for this.

Alternative provision

47. The Council said it agreed funding for alternative provision for Z in principle in October 2023. However, it accepted it took too long to put the alternative provision arrangements in place. Z’s maths tuition did not commence until mid-April 2024. Z’s equine studies and practical lessons ultimately did not commence before the end of the 2023/24 academic year. Despite agreeing to reimburse Miss X’s costs of £200, Miss X told me the Council had failed to do so.
48. Paragraphs 13-16 set out the Council’s duties and powers to arrange alternative education provision. Paragraph 15 confirms that when a young person is over compulsory school age, as Z was in this case, the Council does not have a duty under section 19 to arrange alternative provision. However, the Council does have a power to arrange alternative provision where it considers it necessary. The Council told me it considers it good practice to apply the principles of its section 19 duty to young people with an EHC Plan, even if they are over compulsory school age. I recognise the Council’s acceptance of good practice.
49. In this case, the Council accepted the responsibility of arranging alternative provision for Z when he could no longer attend College J, but then delayed putting that alternative provision in place. I have found the Council at fault for this.

Complaints handling

50. Miss X complained to the Council on 13 December 2023. The Council confirmed receipt of the complaint on 14 December 2023. The Council did not respond to Miss X’s complaint until 16 August 2024. The Council therefore took around 170 working days to respond, a significant delay beyond the timescales set out in paragraph 24. I have found the Council at fault for this.
51. I understand Miss X escalated her complaint to stage two of the Council’s complaints procedure on around 17 August 2024. The Council responded on 20 September 2024, 24 working days later. The Council did not delay responding to Miss X’s stage two complaint. I have not found the Council at fault for its handling of the stage two complaint.

Did the Council’s faults cause an injustice?

52. The Council failing to carry out post-16 transition planning meant the Council did not share Z’s EHC Plan with College J before the start of the 2023/24 academic year. On the balance of probabilities, I find College J not having access to Z’s EHC Plan would likely have affected its ability to put in place the special educational provision needed to support Z. This would likely have contributed to Z’s difficulty engaging with College J and the breakdown in placement. Z was denied the opportunity to fully engage with College J, which is an injustice. This also caused Miss X avoidable frustration and distress.
53. As set out in this statement, the Council did not have a duty to arrange alternative education provision. However, the Council did have a power to do so; the Council said it accepts it is good practice to arrange alternative provision for young people out of education, where they have an EHC Plan. I recognise this good practice. As the Council exercised its power in this case, it had to have regard for statutory guidance in making those arrangements in a timely way.
54. The Council confirmed it provisionally agreed funding for alternative provision in October 2023, shortly after being told Z’s placement had broken down. However, the Council accepted it did not put alternative provision in place until some time later, as paragraphs 41 and 43 set out. I therefore find Z did not receive suitable education provision between September 2023 and 14 June 2024, the point when the Council issued Z’s amended final EHC Plan. This loss of education provision is an injustice to Z.
55. The Council failed to adhere to its complaint procedure timescales, delaying significantly when responding to Miss X’s stage one complaint. This meant Miss X had to chase the Council for its response several times, over a prolonged period. Miss X often did not receive a substantive response, or any response at all. This caused Miss X avoidable time and trouble, which is an injustice.
56. Miss X sought reimbursement for practical lessons she had arranged for Z after his placement at College J broke down. The Council agreed to retrospectively cover the costs incurred from June 2024 onwards, but not before this. Ms X asked the Council to reimburse the costs prior to this, noting that Z’s EHC Plan highlighted the benefits to Z from attending these lessons.
57. I have considered this carefully. While the EHC Plan noted the benefits of these lessons for Z, the lessons were not specified as special educational provision under Section F of the plan. The Council was not therefore required to secure this as provision. I consider the Council’s offer to retrospectively meet the costs from June 2024, the point at which it issued Z’s amended EHC Plan, to be reasonable. I have not made any further recommendations on this point.

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Action

58. Within four weeks of the final decision being issued, I propose the Council should:
1. Provide a written apology to Miss X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay Miss X and Z £2400 in recognition of Z’s lost education provision. This is £900 per term, across two academic terms and two months. I have considered the Ombudsman’s Guidance on Remedies when making this recommendation. In particular, I have considered Z is a young person, beyond compulsory school age but with an EHC Plan, to whom the Council accepted a responsibility to arrange alternative provision. Z began receiving some provision in April 2024 and the Council proposed additional provision from September 2024 to offset any losses incurred.
3. Pay Miss X £150 to recognise the avoidable time and trouble she experienced due to the faults in the Council’s complaints handling.
4. Pay Miss X the £200 in costs it agreed to reimburse, if it has not already done so.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. I have completed my investigation with a finding of fault causing injustice. I have made recommendations 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