Summary: Mr X complained the Council failed to provide an appropriate placement and specialist provision for his children Y and Z. The Council was at fault. It failed to secure the provision for Y and Z set out in their Education, Health and Care (EHC) Plans and did not uphold Mr X’s complaint despite this. The Council has agreed to apologise and make payments to Mr X to acknowledge the frustration and lack of provision. It has also agreed to produce an action plan to address the shortage of special school provision in its area.

The complaint

1. Mr X complained the Council failed to provide an appropriate placement for his children Y and Z and failed to ensure they received the provision set out in section F of their EHC Plans between September 2024 and February 2025. As a result the children did not receive the special educational provision they should have.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. I gave Mr X and the Council an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

EHC 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. 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. 
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. 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.
12. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)

What happened

13. Y and Z both have a diagnosis of autism and general developmental delay. They attended a pre-school setting and have similar special educational needs.
14. The Council issued final EHC Plans for each of the children in April 2024. These identified the section F provision Y and Z needed which included daily one to one speech and language intervention as identified by a speech and language therapist, a high level of adult support, structured small group activities, a personalised curriculum, one to one direct teaching of emotions and a programme of transition activities for the move to reception. The Plans named the pre-school setting the children were already attending. Mr X says the Council named School B from September 2024. Mrs X wanted Y and Z to attend a special school, school C.
15. Mr X appealed to the Tribunal regarding the provision in section F of the Plan and the school named. The appeals were held in mid September 2024. The Tribunals agreed changes to the provision set out in section F of both EHC Plans, to include quantified speech and language therapy (SALT) support and occupational therapy (OT) support. The Tribunals decided they did not have sufficient evidence to name school C at section I. They did however state that Y and Z should attend a special school. The Tribunals issued their decisions in late September 2024.
16. Shortly after the Tribunal issued its decision, the Council issued amended final EHC Plans for Y and Z naming ‘a special school’ in section I.
17. In the meantime Y and Z had started attending school B. They had one to one support but were taught in a separate room. They did not receive any SALT or OT support.
18. Mr X’s MP contacted the Council in October 2024 with concerns the Council was not meeting Y and Z’s needs. The Council responded in November 2024. It said it had consulted special schools and reviewed the responses but had yet to name a special school. It had provided increased funding to school B and was making efforts to identify SALT and OT provision. It said it had not identified any service failure and did not uphold the complaint.
19. Mr X’s solicitor wrote to the Council. In response, in November 2024, the Council said specialist provision in its area was extensively oversubscribed. All consultation responses received a negative responses and despite opposition from the school it had named school C in Y’s Plan but staff would need recruiting which may take some time. It said it would actively seek OT and SALT provision in the meantime.
20. In mid December 2024, the Council issued Y and Z’s amended final EHC plans naming school C.
21. At the end of the first term, in December 2024, Y and Z stopped attending school B as the school and Mr X agreed it could not meet their needs. Mr X complained again. He said school B said it could only meet Y and Z’s basic needs by keeping them safe and addressing their personal care needs.
22. In its stage two response, in February 2025, the Council accepted Y and Z had left school B as it could not meet their needs. The Council said it had put temporary provision in place. Mr X said this was proposed but never started. He said Y and Z received one OT session. The Council said Y and Z could not start school C earlier due to a lack of staffing. It did not uphold the complaint.
23. Later in February 2025, Y and Z started at a special school, school C.

Findings

24. Councils have a legal duty to secure all the provision in section F of EHC Plans. Y and Z attended school B from September 2024 but school B was unable to provide the provision set out in their Plans. Y and Z were taught separately from other pupils and did not receive any of the specialist provision outlined in their Plans. This was fault.
25. Once the Tribunals issued their decisions the Council had five weeks to issue the amended Plans and to secure most of the provision within the Plans. The Council issued the amended Plans naming a special school in September 2024, shortly after it received the Tribunal decision. It then consulted schools and issued final amended plans naming school C in December 2024. After Y and Z left school B, it agreed to arrange provision until they could attend school C. However, except for one OT session, this did not happen. This was fault. This meant Y and Z missed out on education, specialist support and provision for one and a half terms at a crucial stage in their education.
26. The Council, in its response to Mr X’s solicitor, said specialist provision in its area was extensively oversubscribed. It is accepted there is significant demand for specialist provision and that this is a national issue. However, this failure to provide a special school place for Y and Z sooner, and to secure the provision in their plans, is still a service failure and therefore fault.
27. Although the Council amended Y and Z’s plans to name ‘a special school’, shortly after the Tribunal, it failed to ensure they received the provision set out in their Plans. Despite this the Council did not uphold Mr X’s complaint. The Council was actively seeking to resolve the situation and could not name a school arbitrarily. However, the failure to uphold the complaint, when Y and Z were not in a special school and were not receiving the provision they should have, added to Mr X’s frustration.
28. Where fault has resulted in a loss of special educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether the period concerned was a significant one for the child’s school career.
29. Given the children’s age, special education needs and the lack of provision I have recommended a payment towards the higher end.
30. In a different case we have made recommendations regarding the provision of SALT and OT which the Council has agreed to action. So I have not made any service improvement recommendations regarding this.
31. The Council consulted multiple schools but could not secure places for Y and Z and in its complaint response acknowledged its specialist provision was extensively oversubscribed. I have made a recommendation for the Council to demonstrate the action it is taking to try and address this.

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Agreed Action

32. Within one month of the final decision the Council has agreed to:
1. Apologise to Mr X and pay him £300 to acknowledge the injustice caused by the Council’s failure to uphold his complaints; and
2. Pay Mr X £3000 for the benefit of Y and £3000 for the benefit of Z to acknowledge the impact of the lack of a suitable education between September 2024 and late February 2025 (approximately one and a half terms)
33. Within three months of the final decision the Council has agreed to investigate whether it has sufficient supply of special schools, produce an action plan of how it will address any shortfall and report this to the relevant scrutiny committee.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman