Summary: Mrs X complained that the Council failed to provide a suitable education and support for her grandchild’s (Y) special educational needs. We found the Council to be at fault because it failed to provide alternative education whilst a school place was found and took too long to issue a revised Education Health and Care Plan. This caused distress and affected the welfare of Mrs X and Y. To remedy this injustice, the Council agreed to make a payment to Mrs X and take action to improve its service.

The complaint

1. Mrs X complains about a lack of suitable educational placement and special educational needs support for her granddaughter, Y, since she was unable to attend school between February 2024 and February 2025.
2. She also complains about delays in the EHC Plan process.
3. She says this has had a significant impact on X’s well-being and mental health.
4. Mrs X is represented by her daughter, Mrs P in making this complaint.

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The Ombudsman’s role and powers

5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
8. 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.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs 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

Special educational needs

Education, Health and Care Plans

11. A child or young person with special educational needs (SEN) 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.

Annual reviews

12. 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 take place. The process is only complete when the council issues a decision about the review.
13. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan.
14. The council must issue the amended EHC Plan within eight weeks of the original amendment notice.

SEND Tribunal and appeal rights

15. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.

Failure to secure provision

16. Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

What happened

17. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
18. Y is of secondary school age and is the subject of a special guardianship order. Her legal guardian is her grandmother, Mrs X. Y has SEN and has had an EHC Plan since 2023. This plan named School D, a mainstream school, in Section I.
19. Y did not settle at School P and in February 2024 stopped attending. School P offered to provided home tuition, but this was refused by Mrs X. She believed home to be Y’s “safe space” and she made it clear she wanted Y to be at school as opposed to being educated at home. She felt a non-mainstream school would best meet Y’s needs.
20. Following an annual review in February 2024, the Council agreed School D was unsuitable and Y’s EHC Plan would be amended. A draft plan was issued in June 2024. The Council consulted with potential schools, including Y’s preference, School Q. Y was not offered a place and remained out of education, although some alternative education was provided during autumn term. Mrs X believed the content of the draft plan was inaccurate and led to the negative responses.
21. In response to Mrs X’s submissions an amended draft plan was issued and School Q confirmed it could meet Y’s needs. Unfortunately, it was full and so was unable to offer Y a place.
22. A final EHC Plan was issued in January 2025. A place at School Q became available and Y started attending the following month.
23. Mrs X complained about delay in the EHC Plan process and failure to provide a school place and support for Y’s SEN for a year.

The Council’s response to Mrs X’s complaint

24. In response to Mrs X’s complaint, the Council made the following points.

• There was significant delay in issuing an amended final EHC Plan following the review in 2024. This delay was in part caused by excessive demand on the SEN service.
• School D accepted communication about alternative education options “could have been better”.
• The Council accepted it failed to provide education and support for Y’s SEN since she stopped attending School D. It took too long to arrange some interim support.
• The Council offered to pay Mrs X £1000 to acknowledge the delay issuing the final EHC Plan.

25. At the invitation of the Ombudsman, the Council offered an additional remedy payment of £2700 to acknowledge three terms of lost provision.

Analysis

Loss of provision

26. Where a placement breaks down, as was the case here in February 2024, we would expect the council to take swift action to ensure continuity of provision and SEN support. Mrs X made it clear from the outset that any form of home-based tuition was unsuitable and potentially harmful to Y. Y had a difficult start in life and Mrs X felt very strongly that Y should see her home as a safe space, and should be separate from any education-based trauma.
27. Given this knowledge, the Council should have explored other options sooner than it did. I see no reason why the alternative education provided in the autumn term could not have happened sooner.
28. This failure by the Council to ensure Y received the provision set out in her EHC Plan was fault.

Delay

29. The Ombudsman expects councils to adhere to statutory timeframes. In this case, the amended final EHC Plan should have been issued in May 2024. Mrs X did not receive it until approximately seven months later. This considerable delay was fault. I acknowledge some time was spent responding to Mrs X’s objections to the content of the draft plan
30. However, in the event of a disagreement over the content of the EHC Plan, the law expects Council’s to issue a final plan and allow the appeal process to start. Because the Council failed to do this, Ms X’s opportunity to appeal was significantly delayed.

Injustice and remedy

31. To the Council’s credit, it has already accepted it acted with fault that caused a significant injustice to Mrs X and Y.
32. Y was denied educational provision and additional support set out in her in her EHC Plan for three terms. The fact she missed out on this support meant an already vulnerable young person was further disadvantaged.
33. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
34. Where fault has resulted in a loss of educational/SEN provision, we normally recommend a remedy payment of between £900 and £2400 per term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that young person.
35. Given Y’s age, the stage of her education and the support she missed, I consider the Council’s suggested termly payment of £900 per term is inadequate. I consider £1500 per term is appropriate for the loss of provision. This takes account that some Y received some alternative provision in late 2024.
36. The Council has already paid Mrs X £1000 to acknowledge her time and trouble caused by the delay in the EHC Plan process. This is an appropriate amount and in line with the Ombudsman’s guidance.

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Agreed action

37. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Mrs X and Y.
2. Pay Mrs X £4500. For the avoidance of doubt this in in addition to the £1000 owed to Mrs X in response to her complaint.
3. Provide the Ombudsman with a summary report of the action it has taken, or intends to take, to ensure alternative support is provided when a placement breaks down.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I find fault causing injustice. The Council has ageed to take action to remedy the injustice caused by the faults I have identified and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman