Summary: Ms X complained the Council referred to her daughter, D, as a year five student instead of being five years old in consultations it sent to special schools, causing delay finding her a place. She also said the Council delayed responding to her complaint. The Council delayed finding D a school place, causing Ms X uncertainty, however it was not caused by misinformation. The Council delayed responding to Ms X’s complaint which caused her distress. The Council agreed to apologise and make a payment to remedy this.

The complaint

1. Ms X complained the Council referred to her daughter, D, as a year five student instead of being five years old in consultations it sent to special schools. This caused delay finding D a suitable special school place. Ms X said the Council delayed responding to her complaint. Ms X would like the Council to respond to her complaint and not make the same mistake again.

Back to top

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. 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)
3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

5. I have investigated how the Council has handled the consultation with the schools and how it processed Ms X’s complaint. I have not investigated the Education, Health and Care (EHC) Plan itself or the review process.

Back to top

How I considered this complaint

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant legislation

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. 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. 
9. 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)  

The Council’s policies and procedures

10. The Council’s complaint policy is available online. It is a single stage process
11. It says the Council will acknowledge a complaint within three days of receiving it.
12. The Council aims to respond to all formal complaints within 10 working days of submission but advises complainants that it can take up to 20 working days.
13. If the individual is not satisfied with the Council’s complaint response, it can refer the matter to the Ombudsman.

What happened

14. I have summarised below the key events; this is not intended to be a detailed account.
15. D had an Education, Health and Care Plan. She attended mainstream primary school from September 2023 with access to a bespoke provision in its Complex Communication Hub. This provided D with an individual workspace and two to one teaching assistant support. Following an annual review of D’s EHC Plan in May 2024, D’s parents did not consider this met her needs and asked the Council to find her a place in a special school.
16. Between May and August 2024, the Council’s Special Educational Needs and Disabilities (SEND) Provision team consulted with maintained specialist schools. None of the schools responded positively.
17. In August 2024, the Council consulted with independent specialist schools. The Council prepared a referral form which included D’s information including her date of birth. At the time, D was five years old. When the Council sent the referral form to independent schools it incorrectly referred to D as being in year five (nine or 10 years old) and not five years old.
18. The Council consulted with the independent specialist schools in mid-August.
19. School A responded within a few days saying it could meet need. It responded again in September and said it had spoken to Ms X who considered the distance was an issue and she did not want to proceed.
20. School B responded in September and said it could not fulfil D’s support requirements.
21. School C did not respond. In late September, the Council chased School C and attached a copy of D’s EHC Plan which included her date of birth. School C did not respond. The Council emailed School C again in early October. The email confirmed D’s age and school year group and highlighted the earlier mistake.
22. In conversation with Ms X, she told me she visited School C in the middle of November. The Head Teacher told her it discounted the original consultation because of D’s age.
23. School C responded to the consultation in late November and said it could offer a place from April 2025.
24. In April 2025, D started at School C. Ms X said D is settling in well and has two to one teaching assistant support.

The complaint

25. Ms X complained to the Council in October 2024. She said there was a mistake on the consultation document sent to special schools. The form said D was in year five when it should have said she was age five. She said the schools responded to the consultation differently because of this.
26. Ms X did not receive a response to her complaint. She complained to the Ombudsman in the middle of February 2025.
27. The Council responded to Ms X’s complaint in March 2025. It accepted it had provided incorrect information when consulting with schools. It explained that ‘…a misinterpretation of information resulted in D being identified as 5 years old and not in National Curriculum Year 5. This was quickly brought to our attention and although it caused unnecessary confusion, it did not delay the schools’ responses to our consultation.’ It apologised for the frustration and anxiety this caused.
28. In response to my enquiries, the Council said it discussed D’s case with School C which said the error in stating the wrong year group on the consultation form did not make a difference to how it responded. This is because it can accommodate children from age six to 19. D was five years and 11 months at the time of the consultation and would have been six before she started at School C.

Analysis

Consultation responses

29. The Council accepts it made a mistake when it referred to C being the wrong age. It apologised in its complaint response and said it amended the information immediately. It explained it amended the referral forms, reviewed the processes and discussed this in a team meeting to ensure it did not happen again.
30. While the Council did make a mistake, it corrected this within around a month, and it did not impact on the consultation responses from the schools. It did not cause a delay in finding D a school.
31. The Council consulted with School C in August 2024 and followed this up twice. School C responded in November and offered a place starting April 2025. School C took three months to respond to the consultation and even though it could offer a place, this was not available for a further five months. Ms X and the Council both report different conversations with the school about the impact of the original incorrect information. There is no written record of either conversation. School C can accommodate children from six to 19 years old. By the time D started at School C, she would have been within this age bracket. It did not matter whether D was age five or in year five, School C could accommodate her.
32. It took the Council eight months to secure a place for D at special school; this is delay which is fault. The delay was not caused by the Council providing misinformation during the consultation but was due to the availability of places at special schools. This is outside the Council’s control.
33. D received two to one support from a teaching assistant in the Complex Communication Hub while still at mainstream school. She now receives two to one support from a teaching assistant at School C. A school place with two to one teaching assistant support has been available to D throughout. The Council put provision in place while it was consulting and waiting for a place to become available at a special school, ensuring D could attend school. Ms X does not know what provision D would have received had she started at School C earlier. This is uncertainty which is her injustice.

Complaint process

34. The Councils complaints handling policy says it will respond to complaints ideally within ten working days, but it can take up to a maximum of 20 working days.
35. Ms X said the Council delayed responding to her complaint. She complained in mid-October 2024 and received a response in the middle of March 2025. The Council should have responded to Ms X’s complaint by the middle of November 2024. This is a delay of four months. This is fault which caused Ms X distress.
36. Ms X received the Councils complaint response after she had complained to the Ombudsman. When asked what she thought the Council should do to ‘put things right’, she said to respond to her complaint. Ms X was put to added time and trouble of bringing her complaint to the Ombudsman to get a response from the Council.
37. The Council continued to make a mistake with D’s age in its complaint response. It said it misinterpreted information and referred to D as five years old and not in year five. This is correct information, not the wrong information referred to in the consultation. The complaint response misinterpreted the information which caused further distress to Ms X.

Back to top

Action

38. Within four weeks of the final decision the Council should apologise to Ms X and pay her £200 for the distress caused by uncertainty in provision and delay responding to her complaint, which was made worse by the complaint response containing further misinformation.
39. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman