Summary: Ms Y complains about the Council’s failure to arrange suitable special educational provision once she moved into the area with her child, who we will call D. We find fault with the Council because it delayed when arranging provision. The provision eventually put in place did not meet D’s needs as set out in their Education, Health and Care (EHC) plan. The Council will make a symbolic payment to remedy the effects of the missed provision.

The complaint

1. Ms Y complained the Council failed to secure the provision as specified in her child’s Education, Health and Care (EHC) plan. After transferring into the Council’s area, Ms Y said the Council:
• Failed to provide a school placement for five months.
• When it offered provision, it was not full-time.
• Wrongly allocated a mainstream school, despite the EHC plan written by the previous council specifying a specialist placement.
2. Ms Y says her child was without full-time education for a significant period which has caused isolation and impacted their mental health. Ms Y wants the Council to provide education as specified in the EHC plan, apologise and provide a remedy in recognition of the missed provision.

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The Ombudsman’s role and powers

3. 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)
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)
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(1), as amended)

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What I have and have not investigated

6. I have investigated the delays alleged by Ms Y and the failure to deliver the provision as outlined in D’s EHC plan.
7. I have not investigated the appropriateness of the specialist school allocated to D from July 2025 because this was named in Section I of the EHC plan and carried a right of appeal. I consider it was reasonable for Ms Y to have used her appeal rights if she disagreed with that part of D’s July 2025 plan.

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How I considered this complaint

8. I considered evidence provided by Ms Y and the Council as well as relevant law, policy and guidance.
9. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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

The relevant law and guidance

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).
12. The SEND ‘Code of Practice’ reinforces that:
• There must be no gap in provision when a child moves area.
• The new council has a duty to secure the provision in Section F from the date of transfer.
• If it cannot arrange the exact Section F provision instantly, it must arrange equivalent/interim provision without delay.
13. Councils have 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)  

What happened

14. Ms Y has a primary school aged child, whom I will refer to as D.
15. D has special educational needs and disabilities, including hearing loss.
16. In December 2023 D received an EHC plan issued by a different council which is not the subject of this complaint.
17. The Council received notification on 10 October that Ms Y and D had moved into its area. The previous council shared a copy of D’s EHC plan which named a specialist school due to D’s high level of communication needs, emotional dysregulation and because they worked “well below age-related expectations”.
18. On 29 October 2024 the Council began its consultation process to find a suitable school for D.
19. One mainstream primary school provided a positive response and confirmed it would appoint a 1:1 to support D. The mainstream school was one which Ms Y had expressed a preference for due to other family members attending there.
20. One specialist school provided a positive response but said it only had a place to offer from September 2025.
21. D started at the mainstream school on 10 December 2024. The aim was for D to attend there until a place became available at the specialist school from September 2025. To support their transition back into school, the school agreed with Ms Y that D would attend for two days each week, working up to full time attendance from January 2025.
22. At this time the school also raised concerns that, “we are unable to meet the needs within [D’s] plan as specialist provision is what [they] need and to focus on structure, routine, social skills and emotional regulation”. Despite this, the school said it would support D on an interim basis until September 2025.
23. On 8 January 2025 D’s school emailed the Council to say that D was struggling to attend school, even on a part-time basis. The school also explained that D had recently assaulted teaching staff and asked the Council for advice and support to meet D’s needs.
24. The school emailed the Council again on 22 January 2025 to confirm it had excluded D on a fixed-term basis following more incidents of physical assault. From this point, D remained on the school’s roll but stopped attending.
25. The Council agreed in March 2025 to search for alternative provision. It also made a home visit and Ms Y expressed concerns about the lack of suitable provision for D.
26. The Council completed an EHC plan review on 19 March 2025. It concluded that D’s needs were increasing and D would benefit from a re-assessment of their needs. The review also noted the mainstream school had been unable to meet D’s needs, despite their best efforts and the provision of 1:1 support.
27. The Council issued a final EHC plan with a blank Section I and provided Ms Y with a right to appeal to the SEND tribunal.
28. On 20 March 2025 the Council wrote to Ms Y with an offer of interim tuition to be delivered either at home or online. The Council said the provider would contact Ms Y directly to confirm the arrangements and timetable for D.
29. In the meantime, the Council began consulting with specialist schools.
30. Ms Y complained to the Council about the lack of specialist provision available to D. The Council provided a response on 3 April 2025. In summary, this said:
• When the family moved into the area, the Council spoke with Ms Y and relayed the lack of availability within specialist schools and, with parental agreement, consulted a mainstream school which other family members attended.
• The Council accepts that D did not receive any provision between 10 October and 10 December 2024 and provided its apologies for this.
• Although D attended the mainstream school for only two days per week, this was part of a planned transition with the objective of increasing to fulltime provision after the Christmas break. This was a short-term arrangement until the specialist school could offer a place from September 2025.
• Once the mainstream school placement broke down, the Council considered other options such as 1:1 tuition.
• The Council accepted that D missed provision between October and December 2024 and for this it offered a symbolic payment of £900.
31. On 7 April 2025 a tuition provider emailed the Council to say it was ready to begin delivering provision to D. It asked the Council whether a timetable had been agreed for D. The Council contacted Ms Y to advise her to contact the provider directly to make arrangements for D.
32. D remained on the roll of the mainstream primary school while tuition was provided. The Council said this was so the school could conduct safe and well checks.
33. D’s tuition started from 30 April 2025. The records show the provider was able to start the tuition from the end of March 2025, however the start date eventually agreed was in line with Ms Y’s preferences.
34. The Educational Psychologist (EP) completed their assessment and produced a report on 1 May 2025. Following this, the Council wrote D’s EHC plan and issued a draft version to Ms Y on 2 June 2025. This named the mainstream school in Section I.
35. Between April and July 2025 D received part-time home tuition. The records show Ms Y cancelled some sessions. For the remaining periods, D received 1:1 tuition for approximately four hours per week.
36. After Ms Y made a second complaint, the Council issued its final response on 16 May 2025. In summary, this said:
• The 1:1 tuition was agreed and offered from 20 March. This was an interim measure until the Council could source a specialist school place for D. The Council accepts it was not optimal for Ms Y, but says it met its legal duty.
• If Ms Y disagrees with the contents of D’s EHC plan, she has a right of appeal to the SEND tribunal.
• The financial remedy already offered is in line with the LGSCO’s published guidance for one school term of missed provision.
37. On 20 July 2025 the Council offered a place to D at an independent specialist school. It issued a final EHC plan on 24 July 2025 to confirm this placement in Section I.

Was there fault in the Council’s actions causing injustice to Ms Y and D?

38. When a child with an EHC plan moves to a new local authority area, the law says the new council becomes responsible for delivering suitable provision as soon as the child becomes resident. The Council must immediately secure all provision in Section F or make an equivalent interim offer. Within six weeks, the new council must write to the parent or young person confirming it has taken responsibility and explaining whether it intends to reassess or review the plan.
39. If a suitable school placement is not immediately available, the council must provide suitable education on an interim basis. In D’s case, the Council has already accepted that it failed to put any provision in place between October and December 2024 and it has already offered a remedy of £900 for this failure. The missed provision represented around 65% of the Autumn term. The Council’s remedy is therefore based on £1400 for a whole school term of missed provision. In my view, the £900 already offered for this period is suitable.
40. From December 2024 D attended a mainstream primary school for two days a week as part of a gradual transition to fulltime provision. The Council and school both acknowledged that D needed specialist provision and the mainstream school was an interim placement until a specialist school could offer a place from September 2025. The mainstream school could not meet D’s special educational needs. The lack of suitable specialist placements was a service failure.
41. Ms Y did not have a right of appeal against the mainstream school placement because the Council did not issue a final EHC plan until 18 March 2025. By this time, D had already stopped attending. I have therefore exercised discretion to consider whether D received suitable education whilst at the mainstream school between 10 December 2024, and their last day on 22 January 2025.
42. The records show that all professionals agreed the school could not meet D’s identified needs. However, unlike in October and November, D did receive some education in December and January. Because of this, I am proposing a reduced remedy for the specialist provision D missed during that time. The Council will make a payment of £350 for this period.
43. D then received no provision at all in February or March 2025. This period covers half a school term, for which the Council will make a further payment of £700.
44. Between April and July 2025, D received some 1:1 tuition at home and online from an alternative provider. On average, D received about four hours of provision each week. Because this was 1:1, it would have been more intensive than provision delivered in a group or school setting.
45. However, the Council’s records do not explain why D received only four hours of tuition per week. There is no evidence that anyone considered what D could manage, and the decision appears to reflect the availability of services rather than D’s needs. Ms Y also raises concerns that the tutor was not qualified to deliver provision to a child with significant hearing loss, which further impacted D’s ability to engage. For this reason, the Council will make a further payment of £700 to recognise the partial provision D received during this period.
46. As the Council issued a final EHC plan in July 2025 naming a specialist school, Ms Y had a right of appeal. I have not investigated the complaint about the adequacy of the provision offered after July 2025 because I consider it was reasonable for Ms Y to have appealed.

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Action

47. In addition to the £900 already offered to Ms Y, the Council will also make the following symbolic payment within four weeks of our final decision:
• £1750 in recognition of the full or partial missed provision, as outlined and broken down in the section above.
48. Within twelve weeks of our final decision, the Council will provide evidence to the Ombudsman of the following service improvement:
• To prevent situations where a child receives only minimal hours as part of a package of alternative or interim provision, the Council should ensure it has measures in place to require providers to notify the Council immediately if they cannot deliver the required provision.
• The Council should also provide evidence to show measures it has put in place to undertake periodic monitoring to ensure alternative or interim provision is being delivered consistently.

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Decision

49. I find fault causing injustice. The Council will implement the actions listed above to remedy the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman