Summary: Mrs X complained about the Council’s handling of her child, Y’s, Education, Health and Care (EHC) Plan after moving into the Council’s area. This resulted in Y missing education and caused the family distress. The Council was at fault for failing to properly oversee the process when it received Y’s EHC Plan from another Local Authority, including missing key timescales, failing to keep Mrs X updated, and delay securing educational provision for Y. The Council offered a suitable financial remedy for Y’s missed educational provision and for the distress its faults caused.

The complaint

1. Mrs X complained about delays by the Council in finding a new school for her child, Y, amending Y’s EHC plan, and carrying out an annual review, after they moved into the Council’s area at the end of February 2024. This resulted in Y being out of education and becoming isolated. It also caused the family distress.
2. Mrs X also complained about the Council’s poor communication, in not returning telephone calls and emails, for months just after they moved into the area. Mrs X felt the delays could have been avoided if the Council had responded. In addition, Mrs X said the Council did not implement the actions identified by its stage two complaint response. This caused further frustration.

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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. 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)
5. 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 have and have not investigated

6. I investigated events from February 2024 up until February 2025 when the Council issued Y’s final amended EHC Plan. This gave Mrs X a right of appeal to the Tribunal, which she used.

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How I considered this complaint

7. As part of the investigation, I considered the complaint and the information Mrs X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Mrs X and the Council 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

Special Educational Needs and Disabilities (SEND)

10. A child or young person with special educational needs may have an 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. 
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) 

Transfers between local authorities

12. 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)  
13. The requirement for the child or young person to attend the educational institution specified in the EHC Plan continues after the transfer. However, where attendance would be impractical, the new authority must place the child or young person temporarily at an appropriate educational institution until the EHC Plan is formally amended. (Paragraph 9.159 SEND Code of Practice: 0-25 years, January 2015)
14. The new authority may, on the transfer of the EHC Plan, bring forward the arrangements for the review of the Plan, and may conduct a new EHC needs assessment regardless of when the previous EHC needs assessment took place. The new authority must tell the child’s parent or the young person, within six weeks of the date of transfer, when they will review the Plan and whether they propose to make an EHC needs assessment. (Paragraph 9.160 SEND Code of Practice: 0-25 years, January 2015)

Appeals

15. 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.

16. 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)
17. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
18. 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). 

Alternative provision

19. 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.
20. 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)
21. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
22. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

23. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
24. Mrs X and her family moved into the Council’s area in February 2024. The former Local Authority transferred Y’s EHC Plan to the Council on 28 February. This version of Y’s EHC Plan was dated 21 June 2023. The former Local Authority also sent the Council an annual review document dated November 2021.
25. Mrs X chased the Council for an update on 4 April as it had not returned her call. She said the caseworker promised an email with a list of schools after their phone call in March, but this did not happen. She chased this on 21 March but had no reply.
26. Mrs X complained to the Council on 7 April about the lack of response from the caseworker and lack of updates. She said Y had been out of school six weeks with no plan of action. He could not attend his former school as it was too far away. She also said she had not received Y’s EHC Plan from the Council yet.
27. The Council consulted Mrs X’s preferred school on 9 April 2024. I shall refer to this as School One. The Council also consulted ten other schools in April.
28. School One said it could meet some of Y’s needs, but was concerned Y was used to smaller class sizes and higher staff to pupil ratios. School One also said it was full.
29. Mrs X emailed the Council’s complaints team on 30 April. She said she still had no contact from the caseworker or a list of schools. She left several messages and emails without reply. She had not received Y’s updated EHC Plan since moving, which should have happened within six weeks. She asked for a new caseworker and for the Council to treat her concerns as a formal complaint.
30. The Council responded to Mrs X’s complaint on 18 June 2024. It said it sent consultations to schools in the area. It also confirmed it would send an urgent referral for Y to have tuition, and establish whether it could offer Y outdoor learning for Y’s anxiety. It said it would establish an update on Y’s EHC Plan and ensure it consults Mrs X’s preferred school.
31. The Council sent a referral to a tutoring provider asking them to start urgently and provide 15 hours tutoring a week.
32. Mrs X emailed the Council on 20 June 2024 confirming School One was their preference. She said class size was not a concern. Y went to the previous school as it was the only one with space, and only attended for four months.
33. The Council consulted School One again the same day.
34. Mrs X confirmed the tutoring provider contacted her, and the plan was to start with six hours a week and increase it from there.
35. The Council made a referral for Y to an outdoor learning academy on 26 June 2024.
36. The outdoor learning academy sent the Council costings on 1 August 2024 and asked what sessions it would like for Y. It then chased the Council on 3 September after receiving no reply.
37. The Council sent its final complaint response on 12 September 2024. It said:
• It should have arranged an annual review by 15 March 2024 and completed it by 21 June 2024.
• It recognised it had not yet completed a formal review.
• It also recognised it issued both its stage one and stage two complaint responses late. It offered Mrs X a payment of £25 for its delays.
• It would contact Mrs X within three weeks for an urgent annual review.
38. Mrs X emailed the Council on 1 October 2024. She said it needed to urgently review Y’s EHC Plan.
39. The Council replied to the outdoor learning academy on 16 October. It apologised for the delay and said it had staff shortages. It asked for two sessions a week.
40. Mrs X applied for transport support from the Council on 4 November 2024 so Y could attend the outdoor learning academy.
41. The Council held Y’s annual EHC Plan review meeting on 4 December 2024. At the review, Mrs X said home tutoring was working well, and it was beneficial for Y to have a routine. The Council decided Y’s EHC Plan needed amending.
42. The Council issued Y’s final amended EHC Plan on 7 February 2025. It did not name a school. Instead, it named a maintained special school as the type of school. It said it would consult School One again.
43. The Council consulted School One, using Y’s updated EHC Plan, on 4 April 2025. It also confirmed Mrs X was appealing the Plan.
44. School One said it could meet Y’s needs but could not offer a place as it had no space. It said Y’s attendance would be incompatible with the efficient education of other students.

My investigation

45. Mrs X gave me information from School One. School One told Mrs X, in response to the Council’s second consultation (on 20 June 2024), it held discussions with the Council’s Special Educational Needs service in its termly call. School One believed it could meet Y’s needs but was still oversubscribed so could not offer him a place. School One did not send a formal written response due to this discussion. However, as it understood it was parental preference, it expected to have Y on roll either through agreement with the Council or through the Tribunal process.
46. Mrs X said they could not appeal to the Tribunal at the time as they had not received an EHC Plan from the Council since moving into the area. She confirmed School One has now offered Y a place to start in September 2025. Mrs X feels if they received the EHC Plan on time and an update on School One’s response, they could have had Y in School One last year.
47. The Council told me it initially sent Y’s EHC Plan to the wrong team on 1 March 2024. It sent it to the correct team on 8 March. By 15 April, the Council had consulted 11 schools.
48. The Council spoke to Mrs X on 18 June about her complaint, and agreed to refer Y for tutoring. Y first received six hours tuition a week from 24 June. This increased to 15 hours a week from September 2024.
49. The Council told me School One did not respond to the consultation from 20 June 2024. The Council did not follow this up and it could not determine why. The Council apologised for this but said it was clear from School One’s response in May 2024 that it had no available spaces at the time.
50. The Council also consulted an outdoor learning academy on 26 June. It confirmed it could meet need on 3 September. However, due to staff shortages, the Council did not pick this up until 16 October. The Council’s intention was for Y to have two sessions a week, starting on 4 November. This was delayed until 12 December as the Council’s transport team initially declined Mrs X’s transport application, meaning she had to appeal.
51. The Council held Y’s annual review on 4 December 2024 and completed the updated EHC Plan on 7 February 2025. The Council said Mrs X appealed the placement named in Y’s EHC Plan.
52. The Council recognised its remedy offer was not suitable for the identified fault and has increased its offer to £3,200. This is made up of £2,400 for missed provision during term time, £500 for delays and poor complaint handling, and £300 for not putting outdoor provision in place sooner.

Analysis

53. I found the former Local Authority transferred Y’s EHC Plan to the Council on 28 February 2024. The Council should therefore have ensured provision from the EHC Plan was in place within 15 working days. It did not do so. That was fault.
54. Y was on a roll at a school within the former Local Authority area, but could not attend due to the distance. The Council failed to place Y in an education setting temporarily while it amended the EHC Plan.
55. The Council should have told Mrs X, within six weeks of receiving Y’s EHC Plan, when it would carry out a review of the Plan. Its failure to do so was fault.
56. The former Local Authority also sent an annual review when it transferred Y’s EHC Plan. The review was carried out in November 2021. I do not know why there were no subsequent annual reviews. The Council recognised it should have reviewed Y’s EHC Plan by 15 March 2024 and completed it by 21 June 2024. It did not do so. The Council did not review Y’s EHC Plan until December 2024, ten months after receiving it. And the Council did not complete the review and issue Y’s final amended EHC Plan until February 2025. That was fault.
57. The Council did start consulting schools for Y in early April 2024. By that time, Y had already been out of school for just over a month.
58. The Council could not find a suitable school place for Y, because some schools could not meet Y’s needs, some were too far away, and some had no space. Unfortunately, the Council did not consider alternative provision for Y until June 2024 when considering Mrs X’s complaint. That was fault. Y had been out of school nearly four months by then.
59. The Council did not follow up on the consultation sent to School One in June 2024. That was fault. However, I found School One did tell the Council that it remained full and therefore unable to offer Y a place. That was during one of its regular meetings with the Council’s SEN service. Unfortunately, the Council did not have a record of this discussion. This is further fault.
60. The Council also delayed following up with the outdoor learning academy by about six weeks when it offered support in September 2024. While I appreciate the Council may have been short staffed a six-week delay responding is significant and amounts to fault.
61. I found the Council’s communication with Mrs X was poor at the outset. There was an initial telephone call about the consultation process, but the Council did not tell Mrs X which schools it was consulting like she requested. It also failed to respond to her requests for updates. That was fault.
62. I found the Council’s oversight of the whole process from receiving Y’s EHC Plan for the former Local Authority was poor. It missed key timescales, failed to keep Mrs X updated, and delayed securing Y any educational provision.
63. In response to my draft decision, the Council gave evidence of improvements it recently made on the transfer of EHC Plans and its consideration of requests for alternative provision. This included updated policy and procedures and briefings for staff. I therefore do not make any additional service improvement recommendations.

Injustice

64. Y was out school from 28 February 2024 and received no education for four months until alternative provision started on 24 June 2024. This caused Y injustice.
65. Y’s alternative provision was just tutoring for six hours a week at first, and would not be equivalent to full-time education. Unfortunately, the Council delayed putting extra provision in place through outdoor learning. This caused Y further injustice.
66. The Council’s delay reviewing Y’s EHC Plan meant it did not amend the Plan until February 2025. This delayed Mrs X’s right of appeal to the Tribunal. This caused distress, which is further injustice.
67. The Council’s poor communication with Mrs X in the early stages caused her avoidable frustration and distress. It meant Mrs X was put to the time and trouble of making a formal complaint.
68. The Council has offered to pay £2,400 for Y’s missed provision during term time. This is at the top end of the scale in the Ombudsman’s remedy guidance for a term of lost educational provision. In addition, it offered £300 for not putting outdoor provision in place sooner. I consider these are suitable amounts.
69. The Council also offered £500 in recognition of its delays and poor complaint handling. This is also at the top end of the scale for what the Ombudsman would recommend for a general distress payment. I therefore consider this is a suitable amount for the distress Mrs X suffered. This includes the distress caused by the Council’s poor communication early in the process.
70. The Council has recognised its failings, and the impact on Y and Mrs X. It has now offered a suitable remedy for the injustice.

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Agreed Action

71. Within four weeks of my final decision, the Council will:
• Repeat its apology to Mrs X and Y for failing to properly oversee the process when it received Y’s EHC Plan from another Local Authority, including missing key timescales, failing to keep Mrs X updated, and delay securing educational provision for Y.
• Pay Mrs X £3,200, made up of:
1. £2,400 in recognition of Y’s missed educational provision.
2. £300 for delays putting outdoor learning in place.
3. £500 for its delays, poor communication, and poor complaint handling.
72. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

73. I found the Council was at fault for failing to properly oversee the process when it received Y’s EHC Plan from another Local Authority, including missing key timescales, failing to keep Mrs X updated, and delay securing educational provision for Y. The Council offered a suitable financial remedy for Y’s missed educational provision and for the distress its faults caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman