The Investigation

The complaint

1. Mr X complained about misleading information received from the Council which led to the change of a school placement for his child Y and the insufficient support for her in her new school from September 2024.

2. Mr X says the Council’s failings meant Y missed support she needed to access education. Mr X says this caused him significant distress and he spent much time communicating with the Council.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

5. 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)

6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

7. 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 report.

8. The courts have established that if someone has appealed to the SEND 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)

9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents 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to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

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

Delivery of special educational provision

11. The council has a duty to secure special educational provision specified in an Educational, Health and Care Plan (EHC Plan) for the child or young person. (Children and Families Act S.42)

12. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

13. We recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. We consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to check the special educational provision is in place when a new or substantially different EHC Plan is issued or there is a change in placement.

Advice and information

14. When exercising their duties for children and young people with special educational needs and disabilities (SEND) councils must have regard to:

• the importance of the child and their parents participating as fully as possible in decisions relating to the exercise of the function concerned;

• the importance of the child and their parents being provided with the information and support necessary to enable participation in these decisions; and

• the need to support a child with special educational needs or disabilities and their parents to facilitate the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (b-d))

15. The council must ensure children and their parents are provided with information and advice on matters relating to SEND. This should include:

• local policy and practice;

• the Local Offer;

• personalisation and personal budgets;

• law on SEND, health and social care, through suitably independently trained staff; and

• advice on gathering, understanding and interpreting information and applying it to their own situation. (SEND Code of Practice 2015 paragraph 2.17)

16. When exercising their duties for children and young people with special educational needs and disabilities councils must cooperate with schools, academies, post-16 institutions and any other person that makes special educational provision for a child or young person for whom the council is responsible. (Children and Families Act 2014 section 28)

What we have and have not investigated

17. We have not investigated the Council’s reasons for the decision to name a different mainstream school (School 2) for Y in July 2024 and whether School 2 could meet Y’s needs. Decisions to name a school in Section I of an EHC Plan can be appealed to the SEND Tribunal. At the end of March 2025 Mr X appealed Sections B (Y’s special educational needs), F (special educational provision for Y) and I (Y’s school placement) of Y’s EHC Plan, so the Tribunal will consider the merits of the Council’s decision on Y’s school placement. We cannot look at anything linked to this decision from the date the Council issued Y’s EHC Plan in September 2024 as this is when Mr X’s appeal rights were engaged.

18. As pointed out in paragraph five of this report we would normally investigate events which happened in the 12 months before the complainant came to us. Mr X raised his complaint with us in May 2025, so we would normally look at what happened from May 2024. We have decided to extend our investigation to the end of November 2023 when the Council issued Y’s final EHC Plan. Without looking at the earlier events from the school year 2023/2024 it would be difficult to assess Y’s and Mr X’s injustice.

How we considered this complaint

19. We have produced this report after talking to Mr X and examining the relevant files and documents.

20. Mr X and the Council had an opportunity to comment on this draft report. We have considered their comments before preparing a final report.

What we found

What happened

21. Y has complex special educational needs with delayed language and communication skills, social communication difficulties and sensory processing difficulties. In May 2024 Y was diagnosed with Autistic Spectrum Disorder (ASD).

22. In September 2023 Y started attending a mainstream primary academy with a specialist unit (School 1) outside the Council’s area.

23. At the end of November 2023 the Council issued Y’s Education, Health and Care (EHC) Plan. Section F of the plan included:

• learning support assistant (LSA) trained by a Speech and Language Therapist to use specific communication system with Y;

• 46 hours a year of Speech and Language Therapy (SLT); and

• 27 hours a year of Occupational Therapy (OT).

24. Y did not receive any SLT or OT at School 1. Mr X contacted the Council about the lack of therapies at the beginning of January 2024.

25. At the beginning of May 2024 the Council’s EHC Officer (Officer 1) told Mr X that, following the school’s request, the special educational needs (SEN) panel agreed additional funding for Y’s therapies.

26. Later in May 2024 the Council reviewed Y’s EHC Plan. At the review meeting School 1 offered Y a place in its specialist unit from September 2024. A change of placement was also discussed. Y’s parents wanted to find a school which would implement all provision from Section F of her EHC Plan.

27. At the end of May 2024 Officer 1 contacted Mr X to explain that once the Annual Review documents were available, the Council would consult with a specific mainstream academy school in the Council’s area (School 2) as requested by the parents. During previous consultation School 2 said they could not meet Y’s needs.

28. After receiving the Annual Review report from School 1, in mid-June 2024 another EHC Officer (Officer 2) contacted Mr X. Officer 2 asked Mr X to send Y’s ASD diagnosis letter and to confirm his request to change Y’s school. Mr X responded that he and his wife (Mrs X) would like Y to attend a school in their borough and School 2 was their choice.

29. Following the review of Y’s EHC Plan the Council decided to amend it.

30. Mr X told Officer 2 that he and Mrs X believed they had to move Y to School 2 as she could not access therapy services in the school which was out of the Council’s area. Also in School 1 Y’s staff changed frequently which did not work for Y. At the beginning of July 2024 Mr X reiterated that his reason for seeking a new school for Y was the lack of SLT and OT at School 1. The parents were told by the Council that the services from the area where Y lived could not support her and she was not eligible for support from the services local to School 1.

31. In mid-July 2024 Officer 2 told Mr X the Council had received a response to its consultation with School 2. School 2 said it could not meet Y’s needs. Y needed individual support and School 2 could not provide it. Officer 2 said the panel would review School 2’s response.

32. At the end of July the Council told Mr X its panel had reviewed the consultation documents and School 2’s response. The panel suggested offering School 2 extra funding with additional funding for Y’s therapies. The Council said it would discuss this with School 2 in September.

33. At the end of August Officer 1 told Mr X that the Council would write to School 2 to request they admit Y. Whilst awaiting confirmation of a start date Y would need to attend School 1.

34. Y’s parents were concerned about the impact of any changes and last-minute arrangements on Y.

35. At the beginning of September 2024 the Council issued Y’s amended EHC Plan with School 2 named in Section I. The plan specified Y’s school needed funding equivalent to 33 hours of LSA, which should be used to deliver provision set out in Section F.

36. Y started attending School 2 three days later. Mr X told School 1 Y got a place at School 2. Y was taken off School 1’s roll and another child was admitted. The following day School 2 told Mr X they could not meet Y’s needs.

37. A month later in correspondence with Mr X School 2 said Y needed more specialist support for her future schooling. School 2 explained that in their consultation response they had told the Council they could not meet Y’s needs, but nevertheless the Council named them in Section I of Y’s EHC Plan.

38. In mid-November 2024 the Council carried out another review of Y’s EHC Plan. Y’s parents said they had contacted the Council to ask either for sufficient funding to support Y’s needs at School 2 or for the Council to find her a specialist placement. School 2 were concerned that they could only offer Y limited provision.

39. In mid-March 2025 Mr X complained to the Council.

40. Two weeks later Mr X appealed Sections B, F and I of Y’s EHC Plan to the SEND Tribunal.

41. In mid-April the Council responded to Mr X’s complaint and in the third week of May 2025 it provided its final complaint response. The Council did not uphold Mr X’s complaint.

42. In response to our draft report the Council told us that following a parental request for a change of placement back to School 1, the Council agreed to name School 1 in Section I of Y’s EHC Plan from September 2026.

Analysis

Delivery of special educational provision

43. In Y’s EHC Plan issued at the end of November 2023 the Council agreed Y needed SLT and OT to meet her SEN. We would normally allow a few weeks for councils to arrange special educational provision. From January 2024 Y’s SLT and OT should have been in place.

44. The Council failed to ensure the therapy provision included in Section F of Y’s EHC Plan was delivered to her. This lasted for two terms from the beginning of January 2024 to the end of Y’s placement at School 1. As explained in paragraphs 11 – 13 it is the Council’s duty to ensure a child receives provision included in their EHC Plan. After issuing Y’s EHC Plan in November 2023 the Council should have ensured Y was receiving the therapies specified in her EHC Plan.

45. The Council’s failure to ensure Y received SLT and OT is fault. It caused injustice to Y. In view of her specific SEN the therapy provision was particularly important for her to ensure her progress and engagement with education. The lack of progress in Y’s speech development would have affected all other areas of her education. The Council’s fault also caused injustice to Mr X as he was distressed that his daughter was not receiving the support she needed.

46. The evidence suggests the Council does not have mechanisms in place to secure therapy for the children living in its area who are educated in schools in the areas of other councils. We found the same failing in another recent complaint against the Council. The Council’s duty to ensure delivery of all special educational provision for the children living in its area does not depend on where they are educated.

Advice and information

47. Councils’ duties to provide parents of children with SEND with advice and information are listed in paragraphs 14 and 15 of this report. SEND staff should know the law and SEND provision available in their area.

48. The evidence suggests the lack of therapy provision in School 1 was the main reason why Mr and Mrs X sought to change Y’s school. This was noted both at the Annual Review of Y’s EHC Plan in May 2024 and in the subsequent correspondence between Mr X and the Council. It is not clear why the Council failed to offer to arrange SLT and OT for Y at School 1 knowing how difficult it would be for Y, who had ASD and complex SEN, to change schools.

49. The lack of advice and information meant that Mr X was convinced moving Y from School 1 to School 2 was the only way she could receive the therapy provision she needed. This understanding was flawed but the Council did not explain this to Mr X.

50. Failure to provide Mr X with enough information and advice on the Council’s absolute duty to ensure delivery of special educational provision included in Y’s EHC Plan, whichever school she attended, is fault. It caused injustice to Y as she found changing schools a challenging experience. During her transition to School 2 she displayed physical behaviours which she did not have at other times.

51. The Council’s fault also caused injustice to Mr X. Mr X’s distress was significant once he realised that the Council moved Y from School 1, where she would start attending a specialist unit from September 2024 and where she was settled, to School 2 only because the Council had no arrangements set up to deliver therapy provision to children in the out-of-area schools as it is required to do.

Conclusions

52. The Council was at fault because it failed to:

• deliver to Y SLT and OT included in her EHC Plan for two terms; and

• provide Mr X with enough information and advice to make informed decisions about Y’s education.

53. The Council’s faults we have identified caused injustice. They are likely to have affected Y’s academic and personal development. Because of Y’s SEN, therapy provision was particularly important to her. Changing Y’s school triggered by the misunderstanding that the Council does not have a duty to secure therapy provision in an out-of-area school, was disruptive to Y. The first few weeks of her new placement was the only time when she presented with physical behaviours.

54. The Council’s faults caused distress to Mr X. He was frustrated by the lack of therapy for Y. He also felt let down by the Council once he realised that he did not have to ask for a change of Y’s school to ensure she received the therapy provision.

Service improvement

55. In a recent complaint we have recommended the Council:

• ensures its staff are clear about its non-delegable duty to ensure EHC Plan provision is in place;

• checks EHC Plan provision is in place when it issues a new or substantially different EHC Plan, and properly investigates complaints or concerns that provision is not in place at any time; and

• ensures arrangements are clear for how support from therapy services will be provided where it maintains an EHC Plan for a child that attends a school in a different council’s area.

56. We recognise it will take some time for the Council to address the failings identified in this investigation. We will be monitoring the effectiveness of the Council’s actions following our recommendations through our casework.

57. We are issuing this report to draw the attention of other authorities to the importance of monitoring the provision of special educational support to ‘out of area’ placements, and to remind them of the impact on the individual child any failure to do this can result in.

Recommendations

58. To remedy the injustice identified in this report we recommend within four weeks of the date of this report the Council should:

• apologise to Mr X and Y for the injustice caused to them by the faults identified. 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 we have recommended;

• pay Mr X £1,200 to recognise Y’s loss of provision from January to the end of July 2024; and

• pay Mr X £500 to recognise the distress caused to him by the Council’s failings identified in this investigation.

59. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

Decision

60. We have completed our investigation into this complaint. There was fault by the Council which caused injustice. The Council should take the action identified in paragraphs 58 and 59 to remedy that injustice.

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