Summary: Mrs X experienced delayed appeal rights, distress and uncertainty when the Council delayed consulting schools following an annual review, delayed considering putting in place alternative provision and failed to respond to part of a complaint. Mrs X’s son missed out on some education as a result. The Council will apologise, make a payment to Mrs X and provide guidance to officers.

The complaint

1. The complainant, Mrs X, complained the Council:
• failed to put in place education and special educational needs (SEN) provision when her son did not have a school place from September 2024; and
• wrongly refused to consider her complaint as she had appealed to tribunal.
2. Mrs X says the Council’s actions meant her son missed out on education and special educational needs provision.

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The Ombudsman’s role and powers

3. 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)
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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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(i), as amended)
8. 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 have and have not investigated

9. I have exercised the Ombudsman’s discretion to investigate what has happened since February 2024. That is because that is when the need for a new school placement was identified. To consider Mrs X’s concerns about the failure to put in place education from September 2024 I therefore need to consider what action the Council took to identify a new placement between February and September 2024. I see no reason why Mrs X would have identified a need to complain to the Ombudsman before July 2024, which is 12 months before her complaint to us.
10. The period of my investigation for the failure to put in place education only concerns September to 7 November 2024. That is because the Council issued a final EHC Plan on 7 November 2024 which named a new school. As Mrs X had a right of appeal about that school placement the Ombudsman does not have jurisdiction to consider any failure to put in place education after 7 November 2024.

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How I considered this complaint

11. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
12. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education

13. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.

Special educational needs

14. A child or young person with special educational needs may have an EHC Plan. This sets out the child's needs and arrangements for meeting them.
15. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)

The special educational and disability needs code of practice (code of practice)

16. EHC Plans must be reviewed by the local authority as a minimum every 12 months.
17. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person. If the plan needs to be amended, the local authority should start the process of amendment without delay.
18. If the local authority decides to continue to make amendments, it must issue the amended EHC Plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.

What happened

19. Mrs X’s son has SEN and an EHC Plan. Mrs X’s son was attending a school at the point at which an annual review of the EHC Plan took place on 9 February 2024. At that annual review the school Mrs X’s son was attending made clear it could not offer Mrs X’s son a place from September 2024 when he was due to transition to secondary school.
20. The Council’s panel considered the case on 11 June and agreed to the change of placement. The Council began consulting schools.
21. The Council told Mrs X about the offer of a place from a school on 17 July. Mrs X told the Council she would not accept that school. The Council continued to consult schools.
22. Over the summer holidays the Council told Mrs X about two possible places at schools for her son. The Council said it could not progress those further until the new school year began.
23. At the beginning of the new school year Mrs X told the Council her son had visited the two schools and was happy to accept one of them. However, that school later said it did not consider itself a suitable placement for Mrs X’s son. When Mrs X told the Council that on 19 September the officer she spoke to discussed the option of tuition. The note of that telephone conversation records Mrs X said because of her son’s previous experience she did not believe he would engage with tutors.
24. The Council made a referral for alternative provision for Mrs X’s son on 3 October. A provider offered a package of 15 hours tuition on 4 October.
25. The Council spoke to Mrs X about the option of a tutor on 14 October. Mrs X told the Council although tuition had not been successful in the past she would give it another try.
26. When Mrs X spoke to the Council again about the option of a tutor on 28 October she referred to difficulties with previous tuition. Mrs X said though she would try anything for her son and suggested a further telephone discussion.
27. On 8 November the Council issued a final EHC Plan naming a new school. Mrs X appealed as she did not consider the school suitable and suggested an alternative. I understand during the wait for an appeal hearing the Council agreed to name Mrs X’s preferred school in her son’s EHC Plan. The Council issued a new EHC Plan naming Mrs X’s preferred school in September 2025.

Analysis

28. Mrs X says the Council failed to put in place education or SEN provision for her son between September 2024 and September 2025. As I said in paragraph 10, I am only considering the failure to put in place education between September and 7 November 2024.
29. I have some concerns with how the Council managed this case. The Council accepts it should have confirmed within four weeks of the annual review in February 2024 what it intended to do about Mrs X’s son’s EHC Plan. However, the Council failed to do that until June 2024. Failure to meet the timescale set out in the code of practice is fault.
30. The conclusion of the annual review meeting was that Mrs X’s son needed a new placement for September 2024. I consider it likely, on the balance of probability, if the Council had dealt with the annual review process within the timescales set out in the code of practice it would have confirmed in March 2024 that it would seek a new education placement for Mrs X’s son to start in September 2024. Delay reaching that conclusion until June 2024 is therefore also fault. I am satisfied that delayed the Council consulting schools until the end of the school year. I am satisfied that made it difficult for the Council to identify a suitable new placement for Mrs X son to begin in September 2024.
31. I appreciate though the Council had an offer from one school in June 2024. The evidence I have seen satisfies me Mrs X told the Council she did not consider that school suitable. There is no evidence in the documentary records about what view the Council took on the suitability of the school. Had the Council considered the school suitable I would have expected it to have told Mrs X that. I have seen no evidence the Council did that. Nor is the school that offered a place in June 2024 the same school as the one named on the EHC Plan in November 2024.
32. I consider if the Council had acted promptly following the annual review as it should have done there is a possibility it could have identified a suitable school placement for Mrs X’s son to begin at the start of the new school year in September 2024. I therefore consider Mrs X is left with some uncertainty about whether the situation would have been different had the Council not delayed. I also recognise though the Council may still have named a school Mrs X did not consider suitable. That would have meant she would have had to appeal anyway. Nevertheless, the Council’s delays meant Mrs X’s appeal was delayed.
33. Mrs X says the Council should have put in place alternative provision for her son from September 2024 and failed to do so. By July 2024 the Council knew Mrs X’s son would likely not have a suitable school placement to begin in September 2024. I therefore would have expected the Council to discuss the options for alternative provision until it could identify a suitable school placement. I have no evidence the Council did that until it sought a tutor at the beginning of October 2024. That delay is fault.
34. The documentary records show though the Council discussed with Mrs X the option of alternative tuition for her son until it could identify a school placement in September and October 2024. The Council’s documentation shows the officer Mrs X spoke to in September 2024 recorded Mrs X said it was unlikely her son would engage with that due to his previous experience with tutors. I appreciate this may not be Mrs X’s recollection of discussions with the officer in question. However, I have to rely on the documentary evidence. The documentary evidence records Mrs X said her son would not engage with tuition.
35. The Council says Mrs X refused tuition when it offered it on 14 October 2024. That is not supported by the documentary records. The documentary records show Mrs X said although tuition had not been successful in the past she was willing to give it another try. Given the Council had an offer of 15 hours education from a tuition provider at that point I am surprised it did not discuss that with Mrs X. Failure to do that is fault.
36. Mrs X says the Council wrongly refused to consider her complaint as she had appealed to tribunal. I am satisfied the Council responded to the complaint at stage one. However, the documentary evidence I have seen satisfies me the Council declined to respond in detail at stage two because Mrs X had put in an appeal.
37. That is no fault in relation to Mrs X’s concerns about the school placement named in section I of the EHC Plan. However, Mrs X had also raised concerns about the failure to put in place alternative provision before the Council issued the EHC Plan. That did not relate to the issues Mrs X had raised in the appeal. Failure to respond to those points is therefore fault.
38. As a result of the faults I have identified in this statement I consider Mrs X experienced delayed appeal rights, distress and uncertainty. Mrs X’s son also missed out on education between September 2024 and 7 November 2024. Taking into account that this was a transition year and Mrs X’s son also did not receive any of the provision in his EHC Plan I consider a suitable financial remedy for the period I am investigating would be for the Council to pay Mrs X £1,200 to reflect the missed education/SEN provision, the distress this caused and Mrs X’s delayed appeal rights. The Council has agreed to my recommendation.
39. I further recommended the Council provide guidance to officers in the SEN department around the need to comply with the timescales in the code of practice following annual reviews. The Council should also provide guidance to complaint officers about the need to separate appeal issues raised in a complaint from those which are not subject to an appeal. That is so officers know they need to respond to a complaint which raises issues which are separable from an appeal. The Council has agreed to my recommendations.

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Action

40. Within one month of my decision the Council should:
• apologise to Mrs X for the distress, uncertainty and delayed appeal rights she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs X £1,200;
• provide guidance to officers in the SEN department around the need to comply with the timescales in the code of practice following annual reviews;
• provide guidance to complaint officers about the need to separate appeal issues raised in a complaint from those which are not subject to an appeal. That is so officers know they need to respond to a complaint which raises issues which are separable from an appeal.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find fault causing injustice. The Council will take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman