Summary: Mrs X complained the Council failed to provide suitable education for her son for the academic year which commenced in September 2024. She says he lost out on education because of this issue. We found the Council at fault, which caused Mrs X and her son injustice. The Council agreed to apologise and make payment to remedy the injustice caused.

The complaint

1. Mrs X complains about the Council’s failure to provide suitable education for her son (Mr Y) for the academic year which started in September 2024. She says that because of the failure from the Council to complete a review into Mr Y’s Education Health and Care (EHC) plan, he could not secure suitable provision. This is because by the time the review had taken place, the academic year had already started, and courses appropriate for Mr Y were full.
2. Mrs X confirms that this issue has impacted Mr Y by causing him anxiety and significantly affecting his mental health.

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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. 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)
5. 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

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
7. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

8. 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.
9. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 

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. 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 council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. 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 cease to maintain 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)
12. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  
13. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the EHC Plan review process should take account of this. In all cases, where a young person is planning to transfer between one post-16 institution and another within the following 12 months, the council must review and amend, where necessary, the young person’s EHC Plan. This must be at least five months before the transfer takes place.  

What happened

14. Mrs X says that a review into the EHC plan was due to take place in March 2024 but was not finalised until February 2025.
15. Due to the delays in finalising the EHC plan and receiving no support from the Council, Mrs X says that Mr Y attempted to sign up for courses himself. However, when he did in September 2024, most of the courses were full. She says that he tried to sign up for alternative courses, however these were not suitable for him.
16. Mrs X says that Mr Y had inconsistent provision up to February 2025 and then no provision from this point onwards until the end of the academic year.
17. Mrs X made a complaint to the Council which upheld her complaint at first. However, in its final response the Council says that it offered suitable alternative provision which Mr Y could not attend due to health issues.

Analysis

18. Both Mrs Y and the Council confirm there was a delay in the review taking place for Mr Y’s EHC plan. The Council has agreed to remedy the delay under a separate complaint. However, while the review was delayed, Mr Y had an existing EHC plan which was still in place.
19. The plan lists an extensive list of needs that Mr Y has. Within section F it also states the Council should arrange ‘A further education/vocational training course in Mr Y’s chosen area of future career’.
20. The Council has a non-delegable duty to provide the provision set out in the EHC plan. It should have also supported Mr Y during his transition from one post 16 educational setting to another.
21. Mrs X has explained that Mr Y felt unsupported and forgotten about. As the existing EHC plan was still in place the Council therefore had a responsibility to ensure that Mr Y was in appropriate post 16 education.
22. I consider it fault therefore the Council did not support Mr Y in arranging suitable educational provision to start before the start of the academic year in 2024. This fault has impacted Mr Y because he has had to start a course which was unsuitable for him. This again directly impacted his mental health which in turn then meant he could not attend the added provision set out by the Council.
23. I accept the Council tried to secure extra provision for Mr Y. However, this was after it had failed to support or provide the provision from the outset in time for the start of the academic year. This failure directly impacted Mr Y and his ability to attend the provision it later tried to provide. However, this extra provision did not fully meet the provision set out in the EHC plan.
24. Consequently, I find the Council should apologise. It should also make payment to Mr Y to recognise the inconsistent and non-existent provision provided to him from September 2024 through to the end of the academic year in July 2025.
25. I have considered this in line with our guidance on remedies. I have considered that Mr Y was transitioning from post 16 education but was not in a key year of education and that the Council did try to offer alternatives to him. I also accept that this issue was stressful to Mrs X and her family which is considered in the award that I have made.
26. The Council has commented that it has taken action to improve staff training and its processes surrounding EHC plan reviews which in turn would hopefully help to prevent this issue from reoccurring. I am satisfied therefore in the action the Council is taking in this regard.

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Action

27. Within four weeks of my final decision, the Council has agreed to:
1. Provide an apology to both Mrs X and Mr Y for the failure to secure appropriate provision and the distress that this caused them.
2. Pay Mr Y £3,600 for the failure to secure appropriate provision from September 2024 to July 2025.
28. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice. The Council has agreed to apologise and make a payment to Mr Y.

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Investigator's decision on behalf of the Ombudsman