Summary: Mrs X complained the Council failed to ensure her child, Y received an education or the specialist provision in line with their Education, Health and Care (EHC) Plan after they moved to the area in July 2024. The Council was at fault for failing to offer Y a school placement or arrange an education and provision in line with their EHC Plan between September 2024 and May 2025. The Council agreed to apologise and make payments to acknowledge the injustice this caused to Y and Mrs X. It should also carry out service improvements.

The complaint

1. Mrs X complained the Council failed to ensure her child, Y received an education or the provision in line with their Education, Health and Care (EHC) Plan between July 2024 and May 2025 after it accepted the Plan from a different council. Mrs X sad Y had no placement to attend during this period.
2. Mrs X said the lack of education had a significant impact on Y and caused distress and uncertainty.

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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(1), as amended)
5. 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

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

Relevant law and guidance

EHC Plans

8. 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.
9. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• 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

Transfer of EHC Plans between councils

11. 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 three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014).

What happened

12. Mrs X has a child, Y who in 2024 was due to begin secondary school in the September. Mrs X and Y lived in a different council area (Council B) and while there Mrs X was awaiting it to issue Y with an EHC Plan. Y has a diagnosis of autism and has emotional and social challenges along with learning difficulties.
13. In July 2024, before Council B had finalised the EHC Plan, Mrs X and Y moved to this Council’s area. Council B sent the Council Y’s finalised EHC Plan at the end of July. Section I of the Plan named a ‘maintained mainstream’ placement. Section F outlined the specialist provision Y was entitled to which included:
• Adults with awareness of autism to promote a neurodiverse friendly environment
• Visual supports
• High level of daily structure
• Individual timetable
• One-to-one time each lesson
• Daily small group time
• Twice weekly 20 minute maths one-to-one/small group
• Access to social support and an Emotional Literacy Support Assistant.
14. Y remained without a school placement at the start of the 2024/25 academic year. Mrs X asked the Council to consult with School Z but it declined to offer a place.
15. Mrs X complained to the Council in September 2024. She complained the Council had failed to allocate Y a school place. Mrs X said she did not wish to educate Y at home as it was too difficult. She requested the Council provide a school placement as soon as possible.
16. The Council said it could not identify a school place for Y so in October 2024 it offered to put home tuition in place for Y. Records show Mrs X declined home tuition as it was too difficult as the house was not a suitable environment. Mrs X reiterated her wish for Y to have a school place. Records show the Council asked the tuition company to consider whether any nearby venues were appropriate to provide the tuition. There is also a record of Mrs X agreeing to transport for Y to receive tuition at a local library but there is no evidence this was progressed.
17. In early January 2025 the Council provided a final response to Mrs X’s complaint. It explained it has challenged School Z’s decision not to accept Y and it intended to direct it to offer Y a place. It was sorry the process to find Y a school place since moving from Council B had been so difficult.
18. Mrs X remained unhappy and complained to us.
19. In January 2025 the Council told School Z it intended to name it in a new EHC Plan. It issued an amended final EHC Plan for Y in March 2025 naming School Z. However, the Council said School Z would not accept Y as it required a specialist one-to-one support worker and without that it could not meet Y’s needs. The Council said it agreed to fund the worker but by the end of April 2025 School Z had still not employed one.
20. Mrs X and Y moved out of the Council area to Council C in early May 2025. So, the Council transferred the EHC Plan and responsibility for Y’s education to Council C.

My findings

21. The Council received a final EHC Plan for Y from Council B in July 2024 which meant it should have arranged a school place and ensured the specialist provision in the Plan was in place for the start of the 2024/2025 academic year in September. Not doing so was fault and the Council has accepted this was the case.
22. The Council decided in October 2024 to offer home tuition for Y instead of arranging a mainstream school placement. Records show Mrs X made it clear the home environment was unsuitable for this. There is no evidence the Council took any action to consider alternative arrangements. While it asked the tuition company to look for an external venue and there is evidence of a transport arrangement being discussed, a lack of oversight meant neither was progressed. In any case, tuition alone would not have met the specialist provision Y was entitled to and needed and as such Y remained out of school with no education or provision in line with their EHC Plan. This was fault.
23. In 2025 the Council issued an amended EHC Plan naming School Z which was a preferred choice of school. However, it was not possible to attend due to the school being unable top recruit a one-to-one support assistant for Y. The Council did not put in place alternative arrangements while Y was unable to attend. This meant Y remained out of school without an education or the specialist provision in the Plan until Mrs X and Y moved outside the Council area.
24. The duty to ensure Y received the specialist provision in their Plan remained with the Council. Although the Council relied on the tuition company to find a venue and School Z to recruit an appropriate staff member the Council remained liable for Y’s EHC Plan and their education. The faults meant Y lost out on the opportunity to receive an education and the specialist provision in their EHC Plan between September 2024 and May 2025, which equates to two and a half school terms. This caused both Mrs X and Y distress and uncertainty.
25. Council C became responsible for Y’s education and EHC Plan from May 2025 onwards. Mrs X should complain to Council C about any issues with Y’s education after that date.

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Action

26. Within one month of the final decision the Council agreed to:
1. Apologise to Mrs X and Y for the distress and uncertainty caused by the Council’s failure to ensure Y received an education and the specialist provision in their Education, Health and Care (EHC) Plan between September 2024 and May 2025. 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.
2. Pay Mrs X £3750 to acknowledge the impact on Y’s education and social development caused by the loss of education and provision in line with Y’s EHC Plan between September 2024 and May 2025.
3. Pay Mrs X £150 to recognise the distress caused to her.
4. Review its processes to consider what changes or action it needs to ensure that where a child with an Education, Health and Care (EHC) Plan is not attending school that it has systems in place to secure the provision in the Plan as far as possible outside the school setting.
5. Remind relevant staff that where it asks another organisation to arrange and secure provision in an Education, Health and Care (EHC) Plan that the Council remains liable and therefore it should carry out sufficient oversight of that organisation.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman