Summary: Mr B says the Council failed to identify a special school for his son when he moved into the area and failed to put in place enough hours of alternative provision while it looked for a school place. The Council began a prompt search for a school for Mr B’s son but only put limited education in place for him. That meant Mr B’s son missed out on education provision. An apology, payment to Mr B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mr B, complained the Council:
• delayed identifying a special school for his son when he moved into the Council’s area; and
• failed to put in place enough hours of alternative provision until the Council found a school.
2. Mr B says as a result the family have experienced distress, his son’s behaviour has deteriorated and it has affected his and his wife’s ability to work.

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The Ombudsman’s role and powers

3. 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)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. 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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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mr B and the organisation now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

What should have happened

9. A child or young person with special educational needs (SEN) may have an education, health and care plan (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.
10. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.
11. The special educational needs code of practice (code of practice) says where a child or young person moves to another local authority, the ‘old’ authority must transfer the EHC Plan to the ‘new’ authority.
12. The code of practice says 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 other than that specified – for example, where the distance between the child or young person’s new home and the educational institution would be too great – until the EHC Plan is formally amended.

What happened

13. Mr B’s son has SEN and an EHC Plan. Mr B’s son attended a special school in another council’s area. Mr B told the Council in July 2024 he would move into its area in August. The Council began consulting special schools. By 16 September two of those schools had said they could not meet need and a further setting response was awaited.
14. Following a visit to Mr B in September the Council emailed him to tell him it had arranged a sensory music session for his son and would look for a tutor. From 12 September the Council put in place the following provision:
• a weekly session with a music practitioner;
• tutor support for two hours on Thursdays and Fridays;
• two hours care support in the afternoons on Mondays, Tuesdays and Thursdays.
15. On 15 October the Council’s specialist education panel considered the case. The panel agreed to resend the paperwork to the two special schools that had declined and send a further consultation to the third.
16. Mr B chased the Council for an outcome from the panel meeting on 16 October. The Council said it normally received the outcome of the meeting within a week.
17. On 23 October Mr B raised concerns about the delay finding his son a school place. The Council increased the support available by offering extra care hours and tutoring hours.
18. On 24 October Mr B asked for provision in a mainstream school as an interim alternative. The Council explained as his son had attended a special school a mainstream environment would be harmful and suggested more support through a care package to take him out of the home.
19. Mr B put in a complaint on 30 October. The Council responded to that complaint on 8 November.
20. The Council consulted further special schools in November. None of those schools said they could provide education to Mr B’s son. The Council also consulted mainstream schools which said they could not meet Mr B’s son’s needs.
21. Mr B asked the Council to take his complaint to the next stage on 12 November. Mr B raised concerns about the Council not keeping him up to date with what was happening. Mr B asked the Council to consider schools further away and asked why the special schools consulted had turned his son down.
22. When responding to his stage two complaint on 21 November the Council said it would increase the tuition to two hours a day every morning. The Council said it would consider consulting schools further away but was confident it would identify a suitable placement for Mr B’s son.
23. The Council put further provision in place for Mr B’s son from December 2024 which meant he now received 10 hours education per week, carer support and sensory therapy.
24. Mr B contacted the Council again on 13 December to raise concerns about not receiving details of the outcome of the panel meeting as he had been promised.
25. The Council identified a placement for Mr B’s son in January 2025. On 3 February 2025 the Council issued a final EHC Plan naming that placement. Mr B’s son began attending the placement on 24 February.

Analysis

26. Mr B says the Council delayed identifying a suitable school placement for his son when he moved into the Council’s area. Mr B says the Council failed to consult enough schools or keep him up to date with what was happening. Mr B says as a result his son did not receive a school placement until February 2025.
27. The evidence I have seen satisfies me the Council began consulting schools promptly when it found out Mr B’s son was moving into its area. I am also satisfied the Council consulted more schools than just the three schools Mr B identified. The evidence I have seen satisfies me the reason the Council did not provide Mr B’s son with a school before February 2025 is because it could not identify a suitable school with places available. That is a service failure but it is not due to the Council failing to try to identify a school placement.
28. I am concerned though about the Council’s failure to keep Mr B up to date with what was happening. Although there is evidence of regular communications with Mr B he sent a number of emails to the Council asking it specific questions about why special schools had said they could not provide education to his son. I have seen no evidence the Council responded to those queries to provide Mr B with that information and that is fault.
29. I am aware Mr B is also concerned about the suitability of the school the Council identified in February 2025. I cannot comment on that because the Council named that school in Mr B’s son’s EHC Plan issued on 3 February 2025. As that meant Mr B had a right of appeal the Ombudsman cannot comment on the suitability of the school. To challenge that Mr B would have needed to appeal.
30. Mr B is also concerned about the lack of alternative provision in place for his son between September 2024 and when he started school in February 2025. The evidence I have seen satisfies me the Council put in place alternative provision promptly in September 2024.
31. However, the Council has a responsibility to ensure a child receives full-time education. The evidence I have seen satisfies me Mr B’s son received around 5.5 hours/6 hours provision between September 2024 and the end of November 2024. After that he received 10 hours education. I appreciate the Council had put in place some sensory provision and carer support. Nevertheless, the Council’s responsibility is to ensure the child receives full-time education. I consider the provision in place for Mr B’s son fell short of that, taking into account the fact that one-to-one provision is more intensive and therefore will usually be less than the amount of hours education a child receives in school.
32. I am therefore satisfied Mr B’s son missed out on education provision between September 2024 and 3 February 2025, when the Council issued a final EHC Plan naming a school. I cannot consider any failure to provide education after the EHC Plan was issued on 3 February 2025 due to the right of appeal. I recommended the Council pay Mr B £1,000 to reflect the missing education provision. That is based on £900 per term for the period when Mr B’s son was receiving 5.5/6 hours education per week and takes into account the sensory support available on top of the education hours and £600 per term for the period when he was receiving 10 hours education per week.
33. I also recommended the Council apologise to Mr B and pay him a further £200 to reflect his distress at having to chase the Council for responses. That makes a total financial payment of £1,200. I further recommended the Council remind officers dealing with children out of school of the need to ensure any alternative provision is sufficient to meet the Council’s section 19 responsibility and to ensure the number of hours provided is kept under review. I also recommended the Council remind officers of the need to keep parents up to date with what is happening. The Council has agreed to my recommendations.

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Agreed action

34. Within one month of my decision the Council should:
• apologise to Mr B for the distress and frustration he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr B £1,200;
• remind officers dealing with children out of school of the need to ensure any alternative provision is sufficient to meet the Council’s section 19 responsibility and to ensure the number of hours provided is kept under review;
• remind officers dealing with children who are out of school about the need to keep parents up to date with what is happening.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman