Summary: The Council was at fault. It delayed reviewing Mr X’s child, Y’s, Education, Health and Care (EHC) Plan and subsequently, delayed securing a placement. It failed to provide Y with some provision including speech and language therapy (SALT). The Council also delayed responding to Mr X’s complaint. This caused Mr X distress, frustration and uncertainty and Y was without a placement for a prolonged period of time. The Council apologised to Mr X and said it would make service improvements to prevent a recurrence of the fault. The Council has agreed it will also offer a further apology to Mr X and a payment to recognise Y’s lost provision and for the injustice it caused to Mr X. It will also remind staff to follow its complaints procedure when responding to complaints.

The complaint

1. Mr X complained about the Council’s actions in relation to his child, Y, who has special educational needs and an Education, Health and Care (EHC) Plan, when they moved to its area. He said the Council:
• delayed completing an annual review of Y’s EHC Plan in line with statutory timescales;
• delayed securing a placement for Y; and
• failed to provide Y with suitable alternative provision whilst they remained out of school between September 2023 and December 2024.
2. Mr X said as a result, Y was without full-time suitable education for a significant amount of time.
3. Mr X also complained the Council delayed responding to his complaint. He said it caused him distress and frustration. The Council had apologised to Mr X however, Mr X wants the Council to provide him with a financial remedy for the injustice it caused.

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The Ombudsman’s role and powers

4. 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)
5. 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.
6. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
7. 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)
8. 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

9. 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).
10. I have decided to exercise discretion to investigate Mr X’s complaint from September 2023 as his concerns and injustice have been continuous since then.
11. My investigation covers the period from July 2023 and November 2024, when Mr X complained to us.

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How I considered this complaint

12. I spoke with Mr X and considered information he provided.
13. I considered information provided by the Council.
14. I considered our ‘guidance on remedies’.
15. Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

16. Some children and young people with special educational needs and disabilities will have an EHC Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

Content of an EHC Plan

17. The EHC Plan is set out in sections which include:
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of educational placement

Transfer of an EHC Plan between councils

18. 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 within three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)
19. If it is no longer practicable for the child or young person to attend the school or college named in section I (perhaps it is too far away) the new council must arrange for them to attend another appropriate school until it reviews and amends the EHC Plan.

Alternative provision

20. 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.
21. 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)
22. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

The Council’s complaints procedure

23. The Council’s policy states it has a three stage complaints procedure. At each stage of the procedure, the Council aims to respond to the complaint within 10 working days.

Background

24. Mr X’s child, Y, has special educational needs and an EHC Plan. Y attended a specialist primary school whilst they lived in Council A’s area.
25. In April 2023, Mr X informed Council B they were moving to its area and later moved in July 2023.
26. At the beginning of July 2023, Council A wrote to Council B. It informed Council B that Mr X and his family had moved to its area. As Mr X’s child, Y, had an EHC Plan, Council B now had the administrative and financial responsibility of the EHC Plan. It also sent Council B a copy of Y’s current EHC Plan and an annual review document which reflected the last annual review meeting of March 2023. Y’s EHC Plan said Y was to receive a specific amount of speech and language therapy (SALT) every school term.

What happened – Council B

27. Shortly after receiving Council’s A letter, in July 2023, the Council said it consulted with two specialist schools in the area to secure a placement for Y however, both schools were full.
28. Towards the end of July 2023, the Council made a referral to an alternative education provider for Y to receive tuition. The Council noted in the referral form that Y required one-to-one provision outside of their home, for up to 15 hours per week until the Council secured a placement at a specialist school. The Council required the tuition to start from September 2023.
29. In September 2023, the Council said it had consulted with three other specialist schools in the area in addition to consulting with the two previous specialist schools again. There was no availability in any of the schools.
30. The Council’s records show it started to provide Y with 10 hours a week of tuition in their home from October 2023. It said it was unable to secure tuition outside of the home. Mr X said the tuition was in place for a couple of months only. The Council said the tuition ended as Mr X wanted it to take place outside of the family home.
31. In November 2023, the Council said it told Mr X due to the lack of availability, it was unlikely to secure a placement for Y at a specialist school to start before September 2024. It also offered Y additional alternative provision with another provider however, Mr X declined this due to the suitability of the venue.
32. In December 2023, the Council said it had consulted with another specialist school in a neighbouring council area however, Y did not meet the admissions criteria of that school.
33. Between December 2023 and February 2024, the Council explored other options of providing Y with alternative provision with other providers. The Council secured 15 hours per week of alternative provision with another provider and Y started their placement with them in February 2024. This provision was in place until Y started a permanent placement at a specialist school.
34. In April 2024, the Council said it consulted with another specialist school however, the school had no capacity to offer Y a placement.
35. In May 2024, Mr X complained to the Council and said Y had been out of school since September 2023. He said the Council had failed to update him on the matter despite him contacting it many times for an update.
36. In June 2024, the Council responded to Mr X’s complaint and said:
• the school named in Y’s current EHC Plan was impractical due to the distance of travel from the new area. It said it should have placed Y in a temporary placement. The Council apologised it had not done so;
• it should have completed an annual review of Y’s EHC Plan within three months of the date of when Y transferred to its area or within 12 months of the date of the previous annual review. The Council apologised it had not done this;
• Y was currently receiving alternative provision. This was an interim arrangement until the Council was able to secure a permanent placement;
• the Council said despite its efforts of securing a permanent placement, it had not been able to do this and apologised to Mr X. It said it had requested Y’s case to be discussed at its Placement and Provision Panel within the next two weeks so it could review the responses it had received from the schools and agree to a placement. The Council said it would provide Mr X with an update by the end of June 2024. It apologised to Mr X for its delay in securing a placement; and
• accepted its communication with Mr X had been poor as it had not kept him updated with any progress on securing a placement. The Council apologised to Mr X.
37. In July 2024, the Council said it had sent a further consultation to a specialist school it previously approached twice however, it still had no capacity to offer Y a placement.
38. In August 2024, the Council told Mr X it could refer Y for a further 10 hours of alternative provision which would mean Y would receive 25 hours per week.
39. Later in August 2024, Mr X asked the Council to investigate his complaint further under stage two of its complaints process. As part of his complaint, Mr X said the Council had failed to:
• secure a placement;
• failed to provide Y with suitable full-time alternative provision;
• complete an annual review of Y’s EHC Plan;
• provide him with an update of any progress; and
• respond to his complaint in line with its policy.
40. At the beginning of September 2024, the Council responded to Mr X’s complaint and said it:
• did not discuss Y’s case at its Placement and Provision Panel within two weeks of its stage one response to Mr X and subsequently did not update Mr X on any progress. It apologised to Mr X. However, the Council assured Mr X it was continuing to seek a placement for Y. It said it would consult with specialist schools again during the week and provide Mr X with an update on any progress;
• acknowledged Y was receiving alternative provision. The Council said it had been in contact with Mr X recently about adding an additional 10 hours of alternative provision with a different provider;
• recognised it had not completed an annual review of Y’s EHC Plan and apologised to Mr X. It said it was preparing for an annual review meeting to take place and said it had instructed staff to conduct the meeting before the end of September 2024; and
• was aware its communication with Mr X was below its standard. The Council said it should have kept Mr X informed of any progress from the date of transfer. It apologised to Mr X.
41. Towards the end of September 2024, the Council completed an annual review of Y’s EHC Plan. The Council also consulted with several specialist schools again.
42. At the same time, Mr X asked the Council to investigate his complaint further under stage three of its complaints process. He reiterated his concerns from his previous complaints to the Council.
43. In October 2024, the Council had secured a placement with a specialist school. However, the placement would not start until January 2025 due to the school’s capacity. The Council also issued a final EHC Plan naming the specialist school as Y’s placement. The EHC Plan did not specify Y required SALT as a specialist provision.
44. At the beginning of November 2024, the Council responded to Mr X’s complaint and said it:
• accepted it had failed to review Y’s EHC Plan in line with statutory timescales;
• acknowledged it had delayed securing a placement for Y and was concerned why the reason for the delay was not explained to Mr X in its previous complaint responses;
• had explored other alternative provision providers however, Mr X felt the provision and/or venue were not suitable for Y. It said it was still trying to secure further alternative provision to increase the hours; and
• recognised it had delayed responding to his complaints in line with its policy.

The Council apologised to Mr X for the above faults.

45. The Council added it was aware it was required to make service improvements to prevent a recurrence of fault and so explained to Mr X it had planned to:
• review its staffing levels to ensure there was sufficient capacity to manage the increased demand for EHC Plans and associated communication; and
• introduce a robust monitoring system to track the progress of cases, particularly if a placement is at risk of breaking down.
46. The Council said it had also reminded staff to follow the correct procedure when a child with an EHC Plan transfers to its area. It said it had recently allocated two casework officers to manage such cases to ensure staff were following the correct process within appropriate timescales.
47. Mr X remained unhappy and complained to us in November 2024.
48. In response to my enquiries, the Council said it had:
• delayed reviewing Y’s EHC Plan due to significant staffing capacity issues. It said the review should have taken place in March 2024;
• had intended on making service improvements since Mr X’s complaint which included increasing staffing and monitoring of cases;
• consulted with various alternative provision providers and then determined which provider was best to meet Y’s needs and outcomes as specified in their EHC Plan;
• monitored some of the tuition provision which it provided to Y in October 2023 and provided evidence of this;
• discussed during the annual review meeting Y had appeared to enjoy the alternative provision which was in place from February 2024 and had a high attendance; and
• failed to provide Y with SALT whilst they remained out of school.

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Findings

49. The Council should have placed Y in a temporary placement until it reviewed and amended their EHC Plan. The Council told Mr X in June 2024 in its complaint response to him that it was aware it should have done this however, it continued to leave Y without a temporary placement. This was fault.
50. The Council should have completed a review of Y’s EHC Plan in March 2024 which would have been within 12 months of the previous annual review. Instead, the Council completed the review in September 2024 which meant it delayed the review by six months. This was not in line with statutory guidance. The Council was at fault. It meant the Council did not have up-to-date information on Y’s special educational needs when it was trying to secure a specialist school placement. On balance, had it completed a review sooner, it could have secured a placement at a specialist school sooner.
51. I recognise the Council had consulted with specialist schools throughout the period Y was without a placement and was unsuccessful in doing so due to the lack of capacity at the schools or Y not meeting the criteria. However, the Council was still at fault as it had failed to secure a specialist placement within reasonable time.
52. The evidence shows the Council failed to provide Y with alternative provision between:
• September 2023 and October 2023; and
• December 2023 and February 2024.

This was fault.

53. The Council also failed to provide Y with any SALT as outlined in their EHC Plan from Council A between September 2023 and October 2024. This was fault.
54. I note the Council did provide Y with some alternative provision beside the aforementioned dates. However, I have made a recommendation to the Council in relation to the missed provision.
55. I recognise Mr X felt the provision the Council provided was not suitable however, the Council did explore other options of alternative provision with him once the tuition had stopped. This was appropriate. Evidence also shows Y attended and enjoyed the alternative provision which was in place between February and December 2024.
56. The above faults meant Y was without a placement for a prolonged period of time and missed out on some provision. It caused Mr X distress, frustration and uncertainty. I note the Council accepted some fault and apologised to Mr X. It also said it had and would make some service improvements to prevent a recurrence of fault. This was appropriate.
57. Furthermore, there was some delay with the Council responding to Mr X’s complaints at stage one and three. This was fault. The Council recognised this and apologised to Mr X in its stage three response. This was appropriate.

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Agreed Actions

58. Within one month of the final decision, I recommend the Council:
• apologises to Mr X for failing to provide Y with any provision between September 2023 and October 2023 and December 2023 and February 2024.
• apologises to Mr X for failing to provide Y SALT between September 2023 and October 2024. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings;
• pays Mr X £1575 for the provision Y did not receive including SALT;
• pays Mr X £200 for the distress, frustration and uncertainty it caused him by delaying completing an annual review of Y’s EHC Plan, delaying securing a placement for Y, failing to provide provision to Y in the aforementioned dates and for delaying responding to his complaints.
59. Within one month of the final decision, I recommend the Council reminds staff to follow its complaints procedure when responding to its complaints received at all stages.
60. The Council should provide us with evidence it has complied with the above actions.
61. Within three months of the final decision, I also recommend the Council provides us with evidence that it has:
• increased its staffing to ensure there is sufficient capacity to manage the increased demand for EHC Plans and associated communication. This also includes the allocation of casework officers to manage transfer cases;
• introduced a robust monitoring system to track the progress of cases, particularly if a placement is at risk of breaking down; and
• reminded staff to follow the correct procedure when a child with an EHC Plan transfers to its area

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Final Decision

62. I have now completed my investigation. The Council was at fault. It has agreed to the recommendations to remedy the injustice caused and prevent a recurrence of fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman