Summary: We upheld a complaint from Ms B that the Council failed to make suitable education provision for her son who has special educational needs. As a result, he experienced a loss of provision and Ms B suffered distress. The Council accepted these findings and agreed actions to remedy these injustices. It also agreed to make a service improvement to prevent a repeat of some of the fault found in this case.

The complaint

1. Ms B complained the Council failed to make suitable education provision for her son, C, who has special educational needs, following his exclusion from school in July 2023.
2. Ms B said as a result C had become more emotionally dysregulated and distressed, because he could not go to school. Ms B said she also suffered distress, because of C being out of education.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith by the council involved. There may be circumstances where we decide service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to a fault. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
9. If 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)
10. Under an information sharing agreement, we shared this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

11. I considered evidence provided by Ms B and the Council as well as relevant law, policy and guidance.
12. I also gave Ms B and the Council opportunity to comment on a draft version of this decision statement. I considered any comments they made, or further evidence they provided, before finalising the decision statement.

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What I found

Relevant law and guidance

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’s needs and arrangements to meet them.
14. An EHC Plan contains different sections. These include Section B which describes the child or young person’s special educational needs; Section F which sets out the education provision they will receive and Section I which names the education setting (or type of setting) they will attend.
15. 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).
16. The council must arrange for a review of an EHC Plan at least once a year to make sure it is up to date. Government guidance describes the purpose of a review as including the opportunity to “review the special educational provision made for the child.” Also, to consider its “continuing appropriateness” following any “changed circumstances”. (SEN Code paragraph 9.167).
17. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

The key facts

18. C is a young person with special educational needs. The events covered by this complaint began in July 2023, as C neared the end of Year 9 of his secondary education. At the time C had an EHC Plan, the latest version of which dated from March 2023. He attended a specialist school named in the Plan.
19. C’s special educational needs include having particular communication needs. Section F of the Plan set out that he would receive speech and language therapy delivered by therapists and specialist teaching staff. This included six direct sessions a year with a therapist.
20. C’s special educational needs also result in him having various behaviours, including incidents where he can be aggressive to others. In July 2023, the school excluded C following a specific incident. However, it reported this followed an increase in aggressive incidents towards staff and other pupils over the previous 12 months. It said it could no longer meet C’s needs.
21. The day after C’s exclusion, Ms B approached a registered Care Provider which describes itself as supporting individuals with needs like C’s, “who have failed to cope in school” because of complex behaviour. The Care Provider offers an outreach service and promises “highly individualised care”.
22. Within a week the Care Provider had visited and assessed C and agreed that it could provide a service to meet his needs. The Care Provider’s assessment said it could help devise and carry out a programme to help with his behaviour, offering him a “structured and supportive environment”. It would help support him in responding to his sensory needs, his communication and social skills. It proposed offering C various outdoor activities that he enjoyed. It said it would provide three staff every day to support C.
23. The service started soon afterwards and remained in place throughout the events covered by this investigation.
24. The Council told me it saw no need to review C’s EHC Plan straight away, given it was only four months old. Its objective was to try and find an alternative education setting for C. Over the next 12 months it consulted 18 potential education settings for C. However, none said they could meet his needs.
25. In January 2024 the Council made checks with the Care Provider on the service it gave to C. It said the Provider undertook educational activities with C, including puzzles, art, helping his communication skills, counting and so on. The Provider said it had taken advice from C’s former school and provided Maths and English activities in line with its advice. It gave the Council a sample timetable which included Maths and English exercises during some mornings of the week.
26. Around the same time the Council education service recorded visiting Ms B and C at their home. Its SEN caseworker recorded the Council remained committed to trying to find a new education placement for C. Their notes said being out of education meant C “missed out” on opportunities for social development, friendship and preparing for adulthood. During that meeting the Care Provider said it was setting up its own education setting, and the Council told me it understood it was the Provider’s intention to also become an education provider. I noted the sample timetable showed it is a member of an education charity that provides courses for children and young people, including those with special educational needs.
27. The Council went on to review C’s EHC Plan in June 2024. Before then, it received a further report from the Care Provider dated April 2024. The Care Provider reported some progress in helping C with his communication needs, self-care tasks and that he spent more time completing education puzzles. It reported C less dysregulated. However, it said C required support from a speech and language therapist.
28. Before the review the Council also received an update from the NHS Child and Adolescent Mental Health Service (CAMHS) which reported C more regulated. It explained changes to the medication C received which it said contributed to this.
29. The Council proposed amendments to C’s Plan, about which it consulted Mrs B. It then issued a final amended Plan in July 2024. This named a specialist school C would attend from September 2024.
30. Ms B told me over the summer she sought to prepare C for school, taking him to taster days over the summer holidays. But when C started school during the Autumn term, he found himself in a different school building and became distressed. The school sent C home and Ms B told me he then self-harmed and needed hospital treatment. The school then told Ms B it could not meet his needs. So, C only attended the school for part of one day.
31. The Council told me following this it had continued to provide funding for C to have support from the Care Provider. And the school named on C’s EHC Plan, offered some further advice to the Care Provider in January 2025. The Council also sought advice from specialist teachers in March 2025, who had worked with C previously during the primary phase of his education.
32. Ms B told me that after the breakdown of the school placement she asked the Council to amend C’s Plan to name an ‘EOTAS’ provision (education other than at school). She says the Council failed to agree to this and nor did it arrange another review of C’s Plan.
33. I could not consider events beyond March 2025, as this is when we accepted Ms B’s complaint for investigation. But I noted at the point I issued the draft decision, C remained out of school or other setting, having now entered Year 12 of his education. The Council had scheduled a review of C’s Plan for October 2025.

Ms B’s complaint

34. Ms B made her complaint to the Council in June 2024. She was unhappy C did not receive support from a specialist education provider.
35. In its reply sent in July 2024, the Council explained it had consulted multiple education providers. It said it was “looking into” a tuition and outreach package, to include speech and language therapy. And it had asked for an up-to-date occupational therapy assessment for C. It said Ms B had agreed to “interim provision” from the Care Provider. But that it was consulting Ms B’s preferred school, which was the one it went on to name in C’s Plan a few days later.
36. Ms B escalated her complaint. In its final reply, the Council said that while it had made efforts to find C a school place sooner, it recognised it should have done more to communicate with her. It said that when C began at the preferred school now named in his Plan, he would return gradually. It promised that a specialist clinical practitioner would observe C when he began school.

My findings

My approach to investigation

37. The first matter I considered was whether we could investigate all of Ms B’s complaint despite some of it covering events more than 12 months before she complained to us. This made it partially a late complaint.
38. I decided there were special reasons not to exclude any part of Ms B’s complaint from investigation on grounds of time. Ms B and the Council agreed Ms B willingly entered the arrangement with the Care Provider to help care for C following his exclusion. Her complaint was not about that arrangement beginning, but how long it had lasted. I considered it would be unreasonable for us not to investigate any part of this arrangement on the basis Ms B did not complain straight away. This is because I accepted she had no reason to complain initially, because she understood the arrangement would only be short-term.
39. The second matter I had to consider was whether Ms B had had any right of appeal to the Tribunal to pursue any part of her complaint. I had to consider this as when the Council issued C with an updated EHC Plan in July 2024, Ms B had the right to appeal the content.
40. However, I did not find Ms B had cause to complain at the content of the Plan. It provided what she wanted, which was the promise of a specialist school place for C. Her complaint centred instead on how long it took events to reach that point and what happened after C returned to school in September 2024.

My findings on the substance of the complaint

41. I found no fault in the initial commissioning of the Care Provider to provide support to Ms B and C. Clearly at the point of C’s exclusion both he and Ms B were in a difficult and vulnerable position. C’s needs are such that it would cause significant challenges to Ms B if she had to meet his needs alone. It is understandable she approached the specialist Care Provider to support her with meeting C’s needs. It was fortunate the Care Provider could offer support quickly. It was to the Council’s credit it also acted quickly to agree to fund that support.
42. Further, I noted the Care Provider, while not registered to provide education, clearly tried to provide support to C that had some educational benefit. I found the puzzles it gave him were more than simply games. They had a learning purpose also. The evidence also showed C’s care encompassed some learning in Maths and English. The Provider’s reports and its membership of an education charity also demonstrated there was an educational aspect to its work. I considered the work it had undertaken with C could benefit his return to education. I noted in particular its report in April 2024, which pointed to positive progress in C’s communication skills, self-care and concentration.
43. So, I did not find all evidence supported Ms B’s view there was a worsening in C’s behaviour following his exclusion. This was also after noting the comments from CAMHS in June 2024, which suggested medication changes had also benefited him.
44. However, I accepted Ms B still faced challenges in supporting C. And that however good a service the Care Provider gave to C, it was not a specialist education provider and could not be a fully adequate substitute for one. The Council recognised this point in the comments of its SEN Caseworker in January 2024. There was also further evidence in the searches it made for a specialist school for C following his exclusion.
45. Given all the above, I found the Council’s failure to provide C with specialist schooling between September 2023 and the beginning of March 2024, was a service failing and therefore a fault.
46. While this implied no blame on the Council, I did also have some specific concerns about the Council’s education service. First, that it did not arrange an emergency review of C’s EHC Plan following his exclusion. It should have done this when it became clear its initial searches for an alternative school were not successful. Government guidance makes clear the requirement to hold an annual review every 12 months is a minimum requirement. It strongly suggests that a significant change in circumstance, such as a child being out of school, should trigger a review much sooner.
47. Holding a review in this case sooner would have had distinct benefits. It would have required the Council to listen to Ms B’s voice. It has recognised its communications with her were poor. A review would have enabled it to hear her concerns about C being out of school.
48. Also, it would have focused the Council’s mind on what C needed in the ‘here and now’ while he remained without a school place. There was provision in Section F of C’s Plan the Council could have tried to provide without him having a school place. For example, his speech and language provision which the Care Provider also said he needed.
49. A review might also have considered what transition planning C needed once the Council identified a school place. A second concern I had was that I saw little evidence the Council involved itself in this once it identified a school place for C to begin in Autumn 2024. This was despite knowing of C’s complex needs, the reasons for his previous school place failing and his long time out of school.
50. A third concern I had was the Council did not attempt intervention to keep the school place open to C, after what happened on the only day he attended. I could not say that greater intervention before or after C began at the school would have resulted in him settling there. It could be the school could not meet his needs in any event. But the absence of any involvement by the Council to secure that place, after such a short period of attendance (less than one day) concerned me.
51. The considerations set out in paragraphs 46 to 50 suggested an inattention by the Council to C’s needs. A view reinforced by a fourth concern, that the Council again failed to hold a review of C’s Plan after the Autumn 2024 placement failed.
52. I noted here Ms B’s wish after this placement failure for the Council to consider C having an EOTAS package. In its first reply to Ms B’s complaint, the Council proposed offering education at home which suggested this possibility. An emergency review would have been the appropriate forum to discuss this request. And even if the Council did not agree to it, following a review it would have had to decide whether to maintain or amend C’s Plan. Either decision would have given Ms B fresh rights of appeal to pursue her preferred option if the Council did not agree it.
53. I recognised that after the school place breakdown, the Council sought some additional specialist teaching advice to support the Care Provider. However, it remained the case that C did not have the specialist education provision he needed.
54. In summary therefore I found fault because the Council:

• did not secure a school place for C between September 2023 and March 2025;
• did not hold emergency reviews of C’s EHC Plan following his loss of a school place in July 2023 and the failure of his placement in September 2024;
• did not communicate effectively with Ms B.

55. The injustice caused because of these faults was that:

• C experienced some loss of education provision, including speech and language therapy;
• Ms B experienced distress because of C being out of school and from the Council’s failure to review his Plan sooner in response to changes in circumstance. She had no opportunity to appeal the Council’s decision not to agree an EOTAS package for C, when she asked for one.

56. I went on to recommend actions I wanted the Council to take to remedy this injustice, which it agreed. In doing so, I took account of our guidance on remedies which sets out how we seek to remedy the injustices of lost education provision and distress. We often recommend symbolic payments for lost education provision, applying a tariff which takes account of the child’s age and whether they went without education in whole or in part. In this case I applied a calculation at the lower end of the tariff. This took account of the support offered to C via the Care Provider that as I explained above, included some education provision.

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Agreed Action

57. The Council has therefore agreed that within 20 working days of this decision it will:
1. apologise to Ms B, accepting the findings of this investigation. Our guidance on remedies also sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance before making its apology;
2. make a symbolic payment of £5000 to Ms B. Of this, £4500 is to reflect C’s loss of education provision for around four and a half terms between September 2023 and the beginning of March 2025. The remaining £500 is for Ms B’s distress.
58. In addition, the Council has agreed that within 20 working days of this decision it will arrange a briefing for its SEN caseworkers on the importance of bringing forward reviews of EHC Plans where pupils’ circumstances significantly change. For example, when a school placement breaks down or a pupil otherwise finds themselves unexpectedly out of an education setting and the Council cannot identify an alternative placement quickly. Such reviews should look at finding alternative placements and how the Council will make the provision set out in a Plan designed for a school placement (or other institution) while a child or young person remains out of school. The briefing will be in person, or in writing, at the Council’s discretion.
59. The Council will provide us with evidence when it has completed the actions above.
60. Finally, noting that C remained out of school, I considered if I needed to make any specific recommendation around his EHC Plan. However, I noted the Council had scheduled a review for this month. I considered this would give it the opportunity to consider C’s current circumstances and Ms B’s wish for an EOTAS provision. I therefore decided it would serve no purpose if I were to make any further recommendations to address these matters.

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Final Decision

61. For reasons set out above I upheld this complaint finding fault by the Council caused an injustice to Ms B and C. The Council accepted these findings and agreed to take action to remedy that injustice and improve its service to help prevent a repeat. Consequently, I could complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman