Summary: The Council was at fault for failing to ensure W received the special educational provision in their EHC Plan when were no longer able to attend their college. This was an injustice for them. The Council also delayed deciding whether to agree W should attend the alternative college W’s mother, Mrs X, wanted. This caused Mrs X avoidable frustration and uncertainty. The Council will apologise, make a symbolic payment and take action to prevent similar fault in future.

The complaint

1. Mrs X complained about the Council’s actions after her child, W, stopped attending the college they were on roll at in October 2024. Specifically, Mrs X said:
• The Council delayed finding another educational placement for W to attend;
• When looking for another placement, the Council wrongly asked the college W had stopped attending if it would offer them a space;
• The Council failed to provide W with education while it looked for a new placement;
• The Council did not include her requested amendments in W’s draft February 2025 Education, Health and Care (EHC) Plan; and
• The Council named a mainstream type placement in W’s April 2025 EHC Plan, instead of the college she wanted W to attend.
2. Mrs X said the delay meant W missed out on education they should have had, which affected their mental health and social skills. Mrs X also said the Council’s actions caused her stress.

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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. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained or the person the complainant represents, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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)
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 Mrs X and the Council as well as relevant law, policy and guidance.
8. 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

Education, Health and Care 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.
10. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or the type of educational placement 

11. 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).

Annual reviews

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. 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 stop the EHC Plan.

Appeals

13. Only the council and the Special Educational Needs and Disability (SEND) Tribunal can make changes to sections F or I of a child’s EHC Plan. Parents get the right to appeal sections F or I when the Council issues a final or final amended EHC Plan, or when it decides to maintain the EHC Plan unchanged following an annual review.
14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
16. The period we cannot investigate starts from the date the council issued the final EHC Plan, final amended EHC Plan or decision to maintain the Plan unchanged to the parent or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
17. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

What happened

18. This section sets out the key events in this case and is not intended to be a detailed chronology.
19. In advance of the 2024/2025 academic year, the Council consulted with colleges to see if they could offer W a space. Two colleges offered W a space; college A and college B.
20. In August 2024, the Council issued W’s amended EHC Plan, naming college A. The provision in the Plan included:
• Use of various learning strategies;
• A keyworker or mentor to help W with social interactions and their emotions throughout their time at college, as well as at least 20 minutes of direct sessions per week;
• Use of recommendations made by the child and adolescent mental health service;
• A clear and stable routine to give W structure while at college;
• Access to a safe space when W’s emotions became hard for them to manage;
• Sensory or movement breaks; and
• Support with their hearing.
21. College A provides a range of vocational courses at several locations. W began attending but after issues at the college, they stopped going. Mrs X says W was expelled. The Council says W was withdrawn from the course they were doing.
22. Mrs X began paying for W to have English lessons while waiting for the Council to identify a new placement.
23. In November 2024, the Council consulted with college B and another college. College B had offered W a space and the other college had confirmed it could not. In December 2024, the Council told Mrs X it was considering if it would agree to fund college B.
24. The Council also consulted with college A. Mrs X was unhappy because she felt it was pointless, as W had been expelled. The Council told the Ombudsman it carried out the consultation because W had only been withdrawn from their course and they may have been able to attend another course.
25. In early 2025, the Council arranged an annual review of W’s EHC Plan and issued its decision to amend W’s Plan. In February 2025, the Council issued W a draft amended EHC Plan. Mrs X was unhappy with the content of the Plan because it did not include her suggested amendments.
26. Around the same time, the Council told Mrs X the request for W to go to college B was waiting for a decision from a senior officer. Mrs X continued to speak with the Council about college B and requested it agree the placement.
27. In early April 2025, the Council issued W’s EHC Plan, which named a mainstream type placement in section I. It still had not made a decision on college B and issued the Plan so Mrs X could appeal it. Mrs X appealed section I and asked the Tribunal to name college B in it.
28. The Tribunal directed the Council to issue an amended version of W’s EHC Plan, naming college B in section I. It did so in late July.
29. The Council accepts it failed to arrange any provision for W while it was considering what placement they should attend. It told the Ombudsman that this did not cause W an injustice because it repaid Mrs X the cost of the English tuition she had paid for.

Findings

W’s education and efforts to find a new educational placement

30. As set out in paragraphs 14-17, the Ombudsman cannot consider matters which are closely linked to those which a person has appealed. The period we cannot investigate begins at the date of the appealable decision and ends when the Tribunal makes its decision.
31. I cannot investigate Mrs X’s complaint about the Council’s failure to provide W with an education between the date the Council issued the April 2025 EHC Plan and July, when the Tribunal made its decision. This is because Y’s education was dependent on them attending a college setting and Mrs X was disputing what that college should be. The matters are too closely linked.
32. I also cannot investigate Mrs X’s complaint about the Council’s delay considering whether to name college B between April 2025 and the date of the Tribunal hearing. The matter is too closely linked to her appeal to have college B named in W’s EHC Plan. Therefore, my investigation covers the period October 2024 to April 2025.
33. Despite being aware W was not attending college A from October 2024, the Council failed to arrange any education for them while it sought a new placement. This means the Council did not meet its duty to secure the special educational provision in W’s EHC Plan, which was fault.
34. The Council’s argument that W did not suffer an injustice because Mrs X paid for English tuition, which it reimbursed, is not persuasive. The tuition Mrs X funded could not have secured the full special educational provision in W’s EHC Plan; it was not, on its own, a substitute for the education W was meant to have received at college A. The fault meant W missed out on much of the special educational provision they were entitled to.
35. The Council was also at fault for delay coming to a decision on whether to agree college B between October 2024 and April 2025. This caused Mrs X and W significant avoidable frustration and uncertainty. The Council is taking suitable action to prevent similar fault in future through its SEND Transformation programme, which will give local teams within the SEND service the tools, resources and powers to make timely decisions. Therefore, I have not made a further recommendation to prevent similar fault in future.

Consultation with college A

36. I have not investigated Mrs X’s complaint that the Council wrongly consulted with college A in late 2024. Mrs X and the Council disagree about why W stopped attending college A, and therefore about whether a consultation was appropriate. Regardless, the Council did not name college A so any fault did not cause Mrs X or W a significant personal injustice.

The content of the February 2025 EHC Plan

37. The Ombudsman cannot make decisions about what the content of a child or young person’s EHC Plan should be or should have been. That decision is for the relevant council and the Tribunal only. I have not investigated this matter because I cannot achieve the outcome Mrs X wants; to conclude the draft February 2025 EHC Plan was unsuitable. In any event, Mrs X appealed the content of the Plan once the Council issued the final version; this was the appropriate way to change it.

The placement named in the April 2025 EHC Plan

38. I cannot investigate Mrs X’s complaint about the Council’s decision to name a mainstream type placement in section I of W’s April 2025 EHC Plan. This is because, as set out above, the Ombudsman cannot investigate matters which have been considered at appeal to the SEND Tribunal. Mrs X appealed section I to the Tribunal.

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Action

39. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to W for the impact of the lost special educational provision they should have had between October 2024 and April 2025 and for the frustration and uncertainty they felt because of the Council’s delay in deciding whether to agree they should attend college B. 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.
2. Apologise to Mrs X separately, for the frustration and uncertainty she felt because of the delay deciding whether W should attend college B.
3. Pay Mrs X £2,250 in recognition of her and W’s injustice. This is made up of £1,950 for the impact of the lost provision on W and £150 each for the frustration and uncertainty Mrs X and W felt because of the delay coming to a decision on college B. I have decided to recommend £1,950 to recognise W’s lost special educational provision based on the fact they missed out on almost all the provision they were entitled to, their age, time in education and special educational needs. This is in line with the Ombudsman’s guidance on remedies.
4. Review why the Council failed to identify or act on the fact that W was not receiving the special educational provision in their EHC Plan between October 2024 and April 2025. The Council will consider what action it needs to take to prevent similar fault in future, and will send the Ombudsman details of this, including when it will take that action by.
40. The Council will provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice. The Council as agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman