Summary: The Council was at fault for ending B’s college placement without an alternative in place, failing to follow the statutory timescales and process following a review of an Education, Health and Care Plan and delay reinstating B’s college place. The Council has agreed to apologise, make payments and act to improve its services.

The complaint

1. Mrs X complained that the Council:
1. ended her child’s placement at college without alternative provision in place;
2. failed to meet the statutory timescales for issuing an amended EHC Plan following the annual review;
3. notified her of the change only by phone, denying her access to statutory appeal rights; and
4. delayed reinstating the college place.
2. As a result, Mrs X says her child missed out on three months of education and the specialist provision in their EHC Plan.

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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)

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How I considered this complaint

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. I referred to the Ombudsman’s guidance on remedies, which can be found on our website.
7. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found

Education, health and care plans

9. 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 which include:
• Section B: special educational needs
• Section F: the special educational provision the child or young person needs
• Section I: the name and/or type of educational placement.
10. 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)  
11. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
12. Of relevance to this complaint, there is a right of appeal to the Tribunal against a council’s:

• 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; and
• amendment to these elements of an EHC Plan.

13. Councils must tell people about their statutory right of appeal.

What happened

14. B is Mrs X’s child. B is a young person with an EHC Plan. The Plan named a special college in Section I. In June 2024, the Council arranged an emergency review of the Plan. The Council says this was because B’s attendance at the college was 60%. Mrs X says B was doing well at the college and that 60% was B’s highest attendance in education in many years.
15. Following the review, the Council decided to end B’s placement at the college. It told Mrs X over the phone but did not issue a formal decision or an amended EHC Plan changing the provision named in Section I. The Council told Mrs X it would look for a supported internship for B instead.
16. In September, Mrs X complained to the Council. She said the Council had not issued a new Plan naming another setting. She said B was now not in any education and so was not receiving any of the provision in Section F of the Plan. Mrs X said she was worried about the impact on B’s mental health. She said B was increasingly withdrawn.
17. The Council told Mrs X it would respond to her complaint by 23 October. It did not meet this deadline. It responded to the complaint in late November. It apologised for its delay and upheld Mrs X’s complaint. It said it would arrange for B to return to college with immediate effect.
18. B returned to the college named in the Plan at the beginning of December.
19. Mrs X asked the Council to consider the complaint at stage two. The Council responded in late December. It upheld the complaint and apologised. It said:
• its decision to end B’s placement at the college was because the college was not doing enough to address B’s low attendance.
• the supported internship fell through on the first day “due to poor transition planning”.
• it should have amended the EHC Plan during the summer to name the new placement.
• it had missed the four-week deadline following the review to tell Mrs X about amendments to the plan. It said it was now tracking all reviews weekly to prevent this happening again.
• it accepted it did not send Mrs X a formal decision with appeal rights.
• it should have arranged alternative education for B when the internship fell through.
20. Mrs X complained to the Ombudsman.

My findings

21. The Council was at fault for its handling of B’s EHC Plan review. It was also at fault for failing to secure the provision in B’s Plan from September 2024 until B returned to college in December 2024 and for delays in complaint handling. It has accepted fault and apologised to Mrs X.
22. However, the Council failed to remedy the injustice to Mrs X and B from the fault it accepted. Failure to do so was fault.
23. B missed three months of education and received none of the provision in the EHC Plan during that time. This is a significant injustice to B.
24. The evidence from Mrs X and from B’s college in the most recent review of the EHC Plan is that being out of education has significantly affected B. B’s attendance on returning to college was just 11% and the college noted that being out of education left B vulnerable to criminal exploitation. The Council said it was concerned when B’s attendance was 60% yet its fault, on balance, contributed to B’s current low attendance and ongoing difficulties engaging in education. This is an injustice to B.
25. Mrs X also experienced avoidable injustice. She missed out on her statutory right of appeal against the Council’s decision to end B’s placement at the college. She had to go to avoidable time and trouble chasing up her complaint and had to complain to the Ombudsman to get a remedy for her and B’s injustice. She experienced the distress of seeing B struggle without any of the provision in the Plan.

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Action

26. To remedy the injustice to Mrs X and B from the fault identified, the Council has agreed to:
1. Apologise to Mrs X in line with our guidance on Making an effective apology;
2. Apologise to B in line with our guidance on Making an effective apology;
3. Pay B £1500 to recognise the impact of receiving no education or special education provision for three months; and
4. Pay Mrs X £500 to recognise her avoidable distress and frustration
27. The Council should take this action within four weeks of my final decision.
28. The Council has already identified action to prevent recurrence of its failure to meet the statutory timescales following the review. This is welcome.
29. The Council agreed to a recommendation in a previous investigation to ensure it offers suitable remedies when it upholds complaints. The Council agreed to this before it responded to Mrs X’s complaint at stage two. It nevertheless failed to offer her a remedy. The Council should therefore:
1. Provide training or guidance on remedying injustice to staff responsible for responding to complaints at both stages of the Council’s complaint process, with reference to the Ombudsman’s Guidance on Remedies.
30. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Decision

31. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman