Summary: Ms X complained the Council did not provide a school placement for her child Y who should have started Reception class in September 2023. There was fault causing injustice. Y’s amended Education, Health and Care Plan with her educational placement was delayed by about eighteen months. She did not receive any educational provision between September 2023 and the end of June 2024 which was not in line with legal requirements. Complaint handling was poor. The Council will apologise and make a payment of £500 to reflect avoidable distress, time and trouble and delay in appeal rights. It will also make a payment of £7000 to reflect Y’s lost educational provision.

The complaint

1. Ms X complained the Council did not provide a school placement for her child Y. As a result, Y did not receive the special educational provision in her Education, Health and Care Plan (EHC Plan). This caused a loss of educational provision and avoidable distress.

Back to top

The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter (Local Government Act 1974, section 26(6)(a), as amended)
3. The courts have established that if someone has appealed to a tribunal, 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). 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 the educational placement (or lack of placement) in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
4. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
5. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field 1999 EWHC 754 (Admin)).
6. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, any fault before an appeal right started.
7. 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)
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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

10. The period of my investigation is from September 2023 to the end of June 2024. A lack of educational provision from July 2024 is not within our remit because Ms X appealed the Council’s failure to name a placement to the SEND Tribunal. So the restrictions in paragraphs two to five apply.

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant law and guidance

13. Our Principles of Good Administrative Practice is guidance setting out the general standards we expect of councils. It says we expect councils to:
1. Deal with people helpfully, promptly and sensitively
2. Ensure information and advice provided is clear, accurate and complete
3. Operate an effective complaints procedure which offers a fair and appropriate remedy.
14. 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 council can do this.

15. The EHC Plan is set out in sections which include:
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of educational placement.
16. 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 2014, section 42)
17. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases including between early years (nursery) to school. (SEND Code of Practice, paragraph 9.179)
18. A parent has the right to request a maintained school (mainstream or special) is named in their child’s EHC Plan. (Children and Families Act 2014, section 38(2)(b)(ii) and (3))
19. If the parent requests a maintained school, the council must name the school (having consulted the school first) unless the council is satisfied:
• It would be unsuitable for the child because of their age, ability, aptitude or SEN
• The child’s attendance at the school would be incompatible with the efficient education of others or the efficient use of resources. (Children and Families Act 2014, sections 33(2) and 39(4)(5) and (6))
20. A school named in Section I of an EHC Plan must admit the child. (Children and Families Act 2014, section 43)
21. The Council has a SEND Escalation Protocol which staff use to seek support from managers to address disputes with external bodies like schools. The Council also has detailed guidance on the legal framework on parental preferences, consulting with schools and the circumstances when a council must name a school in Section I of an EHC Plan.

What happened

22. Y has an EHC Plan. The most recent annual review meeting took place in May 2023 when Y was in nursery and due to transfer to reception in September 2023. The paperwork noted Y needed a placement and her Plan needed amendments.
23. Ms X’s parental preference was School A, a mainstream primary school.
24. The Council did not complete the annual review or issue an amended Plan with an educational placement in time for Y’s transfer to primary school. Y had no school placement to attend from September 2023 and was therefore not in education.
25. Ms X complained to the Council in February 2024. She said Y was without a school placement.
26. Ms X used both stages of the Council’s complaint procedure, raising the same issues as she has with us. The Council said in its first response in March 2024:
• It was sorry Y had no school placement
• The case officer had consulted with several schools and resource bases, all had refused Y a place
• Short term, the Council would put in place tuition for Y
• It would amend Y’s EHC Plan and name a type of school. This would allow her to appeal the Plan in the SEND Tribunal.
27. Ms X escalated her complaint to stage two at the end of March. The Council’s second complaint response in July said:
• It had made some more consultations since the first complaint response and those settings which had replied had said they could not offer Y a place.
• Some settings had not replied and the Council hoped there would be a positive response from one
• Tuition had now been set up
• The previous response said the Council would re-issue Y’s EHC Plan. This did not happen and so the case officer had been instructed to do so today.
28. The Council issued two final amended EHC Plans in July and August 2024. Neither plan named a setting. The July plan said Y needed a mainstream setting and the August one a specialist setting.
29. The Council arranged tuition for Y from the end of June 2024.
30. Ms X appealed the lack of a placement to the SEND Tribunal. She complained to us in October.

Events since Ms X’s complaint to us

31. The Council conceded Ms X’s appeal in January 2025. It agreed to name School A in Section I. The Council issued an amended EHC Plan in February with School A in Section I.

Information from the Council

32. We asked the Council why casework staff did not use the SEND Escalation Protocol to resolve the dispute with School A about being named. The Council said this was because officers did not understand legal duties around mainstream preference. The Council said it should have focussed on what reasonable steps could be taken to resolve the school’s concerns about incompatibility and to ensure that such provision as the school did not have within its own resources, was obtained.
33. The Council had a backlog of complaints in the middle of 2024. It told us that it had now dealt with this and there were no overdue complaints by January 2025 due to changes in staffing and the appointment of a new post called a Resolution Lead. The Council also told us it had:
• Engaged a new legal officer who would provide advice and review complex complaints
• Trained SEND caseworkers regarding challenging negative responses to consultations in order to minimise the risk of recurrence in other cases
• Organised further training for this year to include more senior staff as well as officers in the SEND team specifically regarding mainstream preference and the relevant law with refresher training being planned on an annual basis.

Was there fault and if so did this cause injustice?

34. The Council should have ensured Y’s case completed the annual review and EHC Plan amendment process by the legal deadline of 15 February 2023. The Council issued two final Plans in July and August 2024, both naming a type of setting. These Plans were delayed by 17 and 18 months respectively which was fault causing avoidable frustration, uncertainty and a delay in opportunity for Ms X to use her appeal rights.
35. Y remained entitled to receive the SEP in her EHC Plan of October 2022 despite the lack of placement for her to attend. She had no education at all between September 2023 and the end of June 2024 when tuition started. This is a severe injustice because Y missed almost a full year of school which is a key transition for all children, but especially for a child with special educational needs.
36. The Council took from March to July 2024 to respond to Ms X’s complaint at stage two. And the response did not address Y’s injustice (a loss of educational provision for almost a year) or Ms X’s injustice (avoidable distress and a delay in appeal rights). Complaint handling was not in line with our expectations as set out in paragraph 13 and this caused avoidable time and trouble. There was also a missed chance to identify learning from the complaint and to put in place actions to improve processes and minimise the chance of recurrence in other cases.

Back to top

Agreed Action

37. Within one month, the Council will:
• Apologise. 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.
• Make Ms X a payment of £500 to reflect her avoidable distress, time and trouble and delay in appeal rights
• Make a payment of £7000 to reflect Y’s missed educational provision (September 2023 to the end of June 2024)
38. We have not made any recommendations for improvements to services. The actions already taken by the Council, summarised in paragraph 33, will minimise the chance of recurrence.
39. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

40. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman