Summary: The Council accepts it failed to communicate and secure the provision in Ms X’s child, Y’s, Education, Health and Care (EHC) Plan when her college placement failed. This caused Ms X and Y frustration, and distress and meant Y missed out on the SEN provision in their EHC Plan. The Council has apologised and made a payment to Ms X and Y. We are satisfied with the Council’s actions.

The complaint

1. Ms X complained the Council failed to communicate and secure the provision in her child, Y’s, Education, Health and Care (EHC) Plan when their placement at college failed. Ms X says this caused her and Y distress and frustration and Y missed out on the SEN provision in their EHC Plan. Ms X wants the Council to secure new provision and improve its communication.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
3. 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

4. We previously investigated a complaint from Ms X about Y’s EHC Plan up to July 2024. I have investigated matters from July 2024 onwards.

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How I considered this complaint

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council have 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

The Law and the Council’s procedures

Education, Health and Care (EHC) Plans

7. 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 the council can do this. 
8. 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). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
9. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

The Council’s complaint procedure

10. The Council operates a two-stage complaint procedure. It says it will acknowledge stage one complaints within three working days and respond within 20 working days.
11. If a person asks the Council to escalate their complaint to stage two, the Council will first consider whether it should investigate the complaint at stage two and notify the complainant within five working days. The Council may then decide to issue a further stage one response within 10 working days or carry out a stage two investigation within a maximum of 65 working days.

What happened

12. Ms X’s child Y is 19 years old. The Council issued a final EHC Plan for Y on 30 July 2024. The Plan named a mainstream college for Y from September 2024. In September 2024 Ms X complained to the Council. She said Y was experiencing difficulties at the college and the Council were not offering her any support.
13. Ms X followed up her complaint in early October 2024. She said Y’s placement was at risk of breaking down as the college was not following Y’s EHC Plan. Ms X said she didn’t know who Y’s coordinator was at the Council. The Council acknowledged the email the same day. It apologised for the delay in acknowledging Ms X’s complaint and said it would respond the next day. The Council did not do this.
14. Ms X emailed the Council a week later to say Y’s placement had now broken down. She said she needed to know who Y’s coordinator was at the Council. She said the Council was ignoring her.
15. The Council spoke to Ms X a few days later and then responded to her complaint in writing. It apologised for the delay in communicating with Ms X and gave her a new single point of contact for any issues. It said it would have been able to consult other settings had Y’s college instigated an early annual review. It said it would now do this and consult with a new college.
16. Ms X emailed the Council a week later to say she had not heard anything from the potential new placement. Miss X continued to chase the Council for a response. The Council replied in early November 2024. It said the college had now responded to its consultation and said it could not meet Y’s needs. The Council said Y’s new coordinator would begin looking at other options.
17. Ms X asked the Council to escalate her complaint to stage two of its complaints process. The Council said it could not add anything to its stage one response and offered to meet with Ms X. Ms X complained to the Ombudsman.
18. The Council met with Ms X in January 2025 and followed the meeting up with an email. It said it would review Y’s EHC Plan and look at interim alternative provision. It offered Ms X £3600 for Y’s lost provision between September 2024 and February 2025 and £250 to recognise the distress caused by its lack of communication.
19. In May 2025 the Council issued a new EHC Plan, naming a post-16 college. Y started to receive alternative SEN provision at the same time.

My findings

20. Ms X complained to the Council as soon as Y began to experience difficulties at college. The Council accepted it failed to acknowledge Ms X’s complaint and apologised. This was fault. Following Ms X’s complaint, the Council began consulting with a new college but failed to secure the SEN provision in Y’s EHC Plan. This was also fault, causing Ms X and Y distress and frustration and Y to miss out on the SEN provision in their Plan.
21. We typically recommend between £900 and £2400 per term in recognition of lost provision, depending on the severity of loss. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
22. The Council has already paid Ms X £3600 to recognise a term and a half of lost SEN provision between September 2024 and February 2025. I am satisfied with the Council’s remedy. The Council has also paid Ms X £250 to recognise the distress and frustration caused by its poor communication and delays. I am satisfied with the Council’s remedy.
23. The Council has since reviewed Y’s EHC Plan and put tutoring in place to secure the provision in the EHC Plan before Y starts at a new college in September 2025.

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Decision

24. I find fault causing injustice which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman