Summary: There was service failure by the Council in failing to provide a school place, or alternative provision outside the home, when a child with an Education, Health Care (EHC) Plan moved into its area. There was also fault in failing to consult independent specialist placements, failing to review the Plan and failing to consider the full range of support available to families with disabled children. Y missed out on education, social and leisure opportunities for two terms, speech therapy for three terms and Y’s parents had to take on additional caring responsibilities. The Council has agreed to make a symbolic payment to acknowledge the injustice caused, to review the Plan, and make service improvements.

The complaint

1. Mr X complains the Council failed to provide suitable fulltime education and special educational provision in his child, Y’s, Education, Health and Care (EHC) Plan for two terms after they moved into the Council area and were without a school place.
2. Mr X says Y missed provision, their social skills deteriorated and he was concerned about Y’s reintegration into school after a long gap. Mr X says Y’s mother suffered stress and inconvenience as she had to stay at home and could not work.
3. Mr X says Y did not receive speech and language therapy for a year.
4. Mr X wants a financial payment to acknowledge the missed provision and the uncertainty. Mr X says he does not want another apology but instead wanted the Council to proactively consult and collaborate with the parents of children with special educational needs (SEN).

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The Ombudsman’s role and powers

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 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)
6. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
8. 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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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. 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

Relevant law and guidance

12. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
13. 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)  
14. The new council must inform the family within six weeks of the transfer that the Plan has been transferred, whether it proposes to make an EHC needs assessment and when it proposes to review the EHC Plan.
15. If it is not practicable for the child to continue to attend the school named in the EHC Plan at transfer the new council must arrange for the child’s attendance at another school or other institution approved for him or her until it is possible to amend the EHC Plan. (SEND Regulation 15(6))
16. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s special educational needs (SEN), the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment.

17. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  
18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests due to ill health. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. A council has a duty to make sure a 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.
20. Councils have a statutory duty to ensure there are enough school places available in their area for every child of compulsory school age (Education Act 1996, s.14).
21. Section 30 Children and Families Act 2014 requires a Council’s local offer to publish information about the education, health and care provision it expects to be available in its area for children and young people with SEN or a disability. It must keep the local offer, including sufficiency of services, under review.
22. Under s.17 Children Act 1989 councils have a general duty to provide a range and level of services to safeguard and promote the welfare of children within their area who are in need. Disabled children are considered children in need for the purposes of s.17.
23. The Breaks for Carers of Disabled Children Regulations 2011 requires councils to have regard to the needs of carers of disabled children. Councils must provide, so far as is reasonably practicable, a range of services sufficient to assist carers continue to provide care, or to do so more effectively. This includes day-time care in the homes of disabled children or elsewhere and educational or leisure activities for disabled children outside their homes. The range of services should be set out in a ‘short breaks services statement’.

What happened

24. Mr X and his family moved to the Council’s area in late 2024 and the old council transferred Y’s EHC Plan.
25. Mr X’s recollection is the Plan was reviewed in Autumn 2024 by the old council.
26. Y’s EHC Plan, which was last substantially amended in 2023, indicates he has autism with very high support needs and severe speech, language and communication difficulties. Y was able to attend to adult led activities for only short bursts of time so needed adult support to access learning opportunities in 10–20 minute interactions / play activities throughout the day depending on Y’s level of attention and interaction. Y communicated occasionally using some single words, but alternative communication methods were to be explored. The Plan provided for weekly direct intervention to teach complex play and communication skills informed by a speech and language therapist.
27. Mr X contacted the new council a few months before the move explaining Y attended a special educational needs class at their current (mainstream) school and would need a specialist school or unit in the new council area.
28. The Council replied that it could not do anything about school places until the old council had transferred the file and it would then consult special schools locally. It told Mr X all its specialist provision was full, with ‘vast’ waiting lists, and it was highly unlikely Y would have a place ‘in the near future’. It said once the family had moved it could put home tutoring in place until a suitable place was identified.
29. At the end of December, the Council confirmed it had received Y’s files from the old council and that Y required unit provision. The Council said it would consult its own five specialist units, a new unit opening in September, and three mainstream schools. The Council said the units were all currently full and Y would be added to the ‘awaiting a unit’ waiting list. It asked Mr X if he wanted interim home tutoring for January.
30. Mr X declined tutoring in the home. Mr X explained this was not an appropriate option as Y is autistic and maintained a clear barrier of separation of home and school. In Y’s view, learning and socialising with other children was something that happened only in school, while home was where he refused to wear clothes, or see other children, and as a result external tutors visiting the home would not have been appropriate. Mr X says he felt mixing learning with home would cause Y distress. Y had made good progress with integration into school and needed to be in a setting to continue this.
31. Mr X chased the Council six weeks after the transfer of the Plan, as he had not heard anything and Y was receiving no education. The Council replied it was in the process of getting in touch with local schools but could not give a timescale for allocating a school place, which was why it had offered interim tuition. Mr X replied he had explained why tutoring in the home was not suitable, but even if it was, he did not see how this could meet the provision in the EHC Plan. Mr X said he had asked for either a specialist school or unit place and consultations should have been completed by now. Mr X said Y wanted to go to school and was entitled to do so.
32. Mr X then made a formal complaint. The Council responded at stage one of the complaint process that due to staffing shortages in the EHC team consultations were not sent out in a timely manner, but consultations had now been made to six units and four mainstream schools. The Council upheld the complaint and advised the offer of home tuition remained open.
33. Mr X escalated the complaint to stage two. The Council repeated its previous findings explaining there was a shortage of specialist places, all its specialist schools and units were full, and its process was to then consult local (mainstream) schools. It had offered tuition which Mr X had declined. The Council did not explain what the outcome of mainstream consultations for Y was. A few days after the complaint response the Council confirmed a place in unit provision had been allocated for September 2025, but the Council was enquiring if Y could start earlier or have transition sessions in the summer.
34. Mr X told me the home tuition offered was not suitable and he had provided reasons for this to the Council at the relevant time. In response to my draft decision the Council told me it did consider alternative provision settings but, due to Y’s age and level of need, none were suitable.
35. Mr X told us he asked the Council if it could offer other support, for example facilities they could bring Y to for some social interaction and learning but was advised there was nothing available for children with special educational needs and disabilities in the area.
36. Y started their new school in September 2025. Records show this was to be a gradual transition given Y’s long absence from education.
37. Mr X told me there has not been any review of the EHC Plan by the new Council, although this was due by Autumn 2025.
38. Mr X told me Y has not received speech therapy for over a year, although this is specified in his EHC Plan.

Analysis

Fault

39. The process of transferring an existing EHC Plan is set out in SEND Regulation 15.
40. The old council correctly transferred the EHC Plan to the new council in line with Regulation 15(2).
41. The Council had to inform Mr X within six weeks:
• That the Plan had been transferred;
• Whether it proposed to make an EHC needs assessment;
• When it proposed to review the EHC Plan in accordance with s.44 Children and Families Act 2014.
42. The Council did confirm within six weeks the Plan had been transferred but did not advise whether it proposed to make an assessment or when it proposed to review the Plan. This was fault.
43. The Council had to review the Plan within 12 months of the previous review or 3 months of the transfer. It failed to do either. This was fault and a breach of SEND Regulation 15(5). EHC Plans must be reviewed at least annually.
44. The Council did issue an amended EHC Plan naming the new school in Summer 2025 by attaching an extra page to the existing (2023) EHC Plan, but without holding a review. This did give Mr X a right of appeal. The EHC Plan did not state interim provision or that the school place would not start until September. Y was therefore entitled to have started on the date the Plan was issued. However, this did not happen.
45. As it was not practicable for Y to continue to attend his old school after the move, then under SEND Regulation 15(6) the Council had to arrange for Y’s ‘attendance at another school or other institution appropriate for him or her until such time as it is possible to amend the EHC plan’. Where legislation states something ‘must’ happen, as in s.15(6), there is no discretion and the Council had to provide education in a setting. This did not have to be at a school; it could have been at an alternative provision setting. It also did not have to be in one of the Council’s own schools or units, it could have secured a place at an independent specialist school to discharge this duty.
46. It is not clear when the Council did send consultations to schools, but it appears this may only have happened after Mr X made a formal complaint as the stage one response in Spring 2024 refers to a delay due to staff shortages and suggests consultations were recent. This was fault. Consultations should have been sent in December / January. The Council only consulted unit provision, not special schools, although Mr X had indicated they were satisfied with both options. This was fault.
47. The Council failed to provide a place in any school: mainstream, unit or specialist; or in an alternative provision setting. This was fault and service failure. The Council should have looked beyond its own schools, including independent specialist schools, to meet the requirement to provide a school place given it knew from the outset its own schools were full, with ‘vast’ waiting lists.
48. Y was of compulsory school age and was entitled to fulltime suitable education under s.19 Education Act 1996 and to all the special educational provision in the EHC Plan under s.42 Children and Families Act 2024. This included specialist support with communication and play skills. ‘Suitable education’ means ‘efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have’. (Education Act 1996, section 19(6))
49. While I acknowledge the Council offered home tuition, Mr X gave valid reasons why this was not suitable for his child’s special educational needs. I agree with Mr X that it is difficult to see how the provision of a tutor would have been met the need for play-based short bursts of interaction and teaching throughout the day in line with Y’s attention unless the Council’s intention was a tutor would be present at home daily for full school hours.
50. I would have expected the Council to have sought to offer speech therapy sessions outside the home during the period a school place was being sought. Failure to do so was fault.
51. Once Y started school, even on a gradual basis, the Council ‘s duty to secure all the special educational provision in the EHC Plan remained, including to secure speech therapy. The Council failed to do so, this was fault.
52. Under s.17ZD Education Act 1989 Councils must assess whether a parent carer in their area have needs for support, and if so, what those needs are. This applies where a Council receives a request to assess the parent carer’s needs but also where it appears to the Council the parent carer may have needs for support. Mr X both asked for support, and the Council had sufficient information a parent carer may have a need for support. Y’s mother was unable to work for the period Y was out of school and it is obvious that significant additional caring responsibilities fell in the family during the period Y was without a school place. I would have expected to see the Council offer a social care assessment for the child and parent carer and signpost to short breaks. This may have led to alternative support such as leisure / social opportunities for Y and respite for the parent carer.

Injustice

53. Y missed out on two terms of education. Y has very significant special educational needs and it is clear from reading the EHC Plan that Y would not be able to learn without adult direction.
54. Y missed out on three terms of speech therapy. Y’s communication difficulties are severe, and this was a key focus of his EHC Plan. The loss of therapy represents a significant injustice as Y required alternative communication methods to be developed in the absence of spoken language.
55. Y’s parents had to provide high levels of additional care, and this prevented Y’s mother from being able to access paid employment.
56. Mr X considered Y’s skills regressed during the period Y was without education. The family were denied the opportunity to update the EHC Plan to reflect the impact of the loss of education, as no review was held within the required period.
57. Where someone has suffered injustice, we try to put them back in the position they would have been in had the fault not occurred. Our focus is on restoring services that have been denied. Where it is not possible to restore the missed service, we may recommend a financial payment. This is often a modest amount whose value is intended to be largely symbolic to acknowledge the impact of the fault.
58. Where a child missed education due to fault, we will usually recommend a remedy payment of between £900 to £2400 per term based on the impact on the child and taking into account any provision that was made during the period. We may also recommend an additional remedy for injustice caused by other missed provision, such as speech therapy.
59. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B)). I have set out below the actions the Council has agreed to take to remedy the injustice to Mr X and Y, and to those people who may also have suffered an injustice due to service failure or fault by the Council.

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Agreed Action

60. Within one month of my final decision, the Council will:
• Pay Mr X £4800 to reflect the two terms of missed education and the impact this had on the family.
• Pay Mr X £600 to reflect three terms of missed speech therapy.
• Liaise with Mr X, and the school, to ensure an annual review of the EHC Plan is arranged.
• Check with the school, and Mr X, that all special educational provision in the EHC Plan is fully in place and take action to secure any missing provision or therapy.
61. Within two months of my final decision, the Council will:
• Ensure that if it has children currently awaiting a place in specialist provision that consultations have been sent to the full range of provision, including independent provision, when the Council is not able to meet need from within its own settings, with a view to placing pupils as soon as possible.
• Have a process in place to track and regularly review cases of children missing education, to include all children currently being held on the Council’s waiting list for a specialist placement, to ensure appropriate action is taken in a timely way. Ensure management oversight of such cases is in place and that EHC Plan reviews continue to take place in line with statutory duties.
• Ensure all relevant staff are aware of the range of support available to children with SEN and disabilities, and parent carers, and that appropriate referrals and signposting between departments is in place.
• Have a process in place to consider how special educational provision in an EHC Plan can be delivered to pupils unable to attend a setting.
• Ensure reviews of sufficiency of places (in schools and alternative provision), and of the local offer, are on track and confirm to the Ombudsman when the Council last carried out such reviews and when the next review is due.
62. The Council will provide us with evidence it has complied with the above actions.

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Decision

63. I find fault causing injustice. The Council has agreed the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman