Summary: Miss X complained the Council named an unregistered school on Y’s Education, Health and Care Plan, failed to take steps to enforce against the school and failed to address her safeguarding concerns, causing distress and meaning Y missed out on education. We do not find the Council at fault.

The complaint

1. Miss X complains the Council named an unregistered school on her child, Y’s Education, Health and Care (EHC) Plan. Miss X also complains the Council took inadequate steps to enforce against the unregistered school and address safeguarding concerns she raised about it. Miss X has also said the Council moved Y to a school that was not named in his EHC Plan. Miss X has said, as a result of this, Y missed out on a year of education and has been caused emotional distress.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. 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). 
7. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
8. 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)
9. 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)
10. 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

11. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
12. If someone has, or could have appealed to the Tribunal, the law says we cannot investigate any matter which was part of, connected to, or could have been part of the appeal.
13. Miss X appealed the content of Y’s December 2023 EHC Plan, including the named setting, Provision A, to the Tribunal. For this reason, I have not investigated the content of Y’s EHC Plans or the Council’s decision to name Provision A.
14. We cannot usually investigate complaints about events that took place more than 12 months before they were brought to the Ombudsman. We can only exercise discretion to look back further if there are good reasons to do so.
15. Miss X first brought her complaint to the Ombudsman in June 2025, meaning anything that took place before June 2024 has been raised late. However, I have exercised discretion to look back to December 2023 to consider whether the Council was at fault for failing to enforce against an unregistered school and how it considered Miss X’s reports of safeguarding concerns.
16. Any mention below to events that took place before December 2023 are for reference only.

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How I considered this complaint

17. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
18. Miss 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 policy

EHC Plans

19. A child or young person with special educational needs (SEN) may have an 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 the council can do this. 
20. When preparing an EHC Plan the Council must set out the name of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution or, where the name of a school or other institution is not specified in the EHC Plan, the type of school or other institution to be attended by the child or young person. (Special Educational Needs and Disability Regulations 2014, section 12)

Unregistered schools

21. A person must not conduct an independent educational institution unless it is registered. Any person who does so is guilty of an offence. (Education and Skills Act 2008, section 96)
22. Ofsted is empowered to enter and inspect premises if they have reasonable cause to believe an unregistered independent educational institution is operating there. (Education and Skills Act 2008, section 97)
23. The proprietor of an independent educational institution may apply to the Secretary of State for the institution to be entered on the register. (Education and Skills Act 2008, section 98)

Safeguarding

24. Where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child’s welfare. Such enquiries should be initiated where there are concerns about abuse or neglect. (Children Act 1989, section 47)
25. The Local Authority Designated Officer (LADO) is a person responsible for managing and overseeing investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children.

What happened

26. I have summarised below some key events leading to Miss X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
27. Provision A was not a registered school. Instead, it operated as a respite and childcare service for children and young people with SEN. An Ofsted inspection of Provision A in early 2023 included observations of interactions between staff and children and judged it as good in all areas.
28. Y has SEN and his education is supported by an EHC Plan.
29. The Council issued an ECH Plan for Y in November 2023 which did not name a specific school or other institution but set out the specialist provision he required. The Council then began consulting with schools but could not find one who could offer Y a place.
30. In December 2023 the Council issued an amended EHC Plan for Y, naming Provision A. The Council continued consulting with schools while Y was attending Provision A and Miss X appealed the plan to the Tribunal.
31. In January 2024 Miss X contacted the Council to explain she had concerns about Provision A. Miss X said she felt Y had regressed since attending there and she had concerns about whether it was a suitable environment for him.
32. The Council discussed Miss X’s concerns with her and concluded these would be better dealt with through Provision A’s internal complaints procedure and signposted Miss X to it.
33. In September 2024 Miss X emailed Provision A, copying in the Council. Miss X said Y had come home with unexplained bruises and this was not the first time this had happened. Miss X said she had concerns with the way Provision A was handling Y.
34. The Council consulted with the LADO about the allegations made in Miss X’s email. The LADO considered the information it had on the possible safeguarding issue and determined that the alleged incident occurred in a different borough. They then referred the matter to the LADO of that borough.
35. The Tribunal heard Miss X’s appeal in November 2024 and ordered the Council to name School B on Y’s EHC Plan.
36. After Y had stopped attending Provision A, it was registered as an independent specialist school.
37. In response to our enquiries, the Council said it did not name Provision A on Y’s EHC Plan as a school, but as an “other institution” as permitted by the SEND Regulations 2014. The Council said it never viewed Provision A as a school, but as a respite service where it would place children with similar educational needs to Y whilst it sought a longer-term placement.

Analysis

38. It is the role of Ofsted to investigate whether an offence has been committed by the operation of an unregistered school. However it would be reasonable to expect the Council to report concerns to Ofsted if they become aware of a potential offence taking place. Failure to do so would amount to fault.
39. The Council has explained it was aware Provision A was not a registered school at the time it was named on Y’s EHC Plan. However, the Council has said it was never its intention to name Provision A as a school, but as a temporary “other institution” used as an independent respite and childcare service for Y while it consulted with registered school settings. Provision A had been recently inspected by Ofsted whilst operating for that purpose and reviewed as good.
40. As the Council did not have concerns about Provision A operating as an unlicenced school rather than for the purpose it was intended, it did not have reason to report it to Ofsted. This being the case, I do not find the Council at fault for not making a report to Ofsted about any potential offence taking place.
41. It is not the role of the Ombudsman to decide whether the Council should have taken any specific safeguarding action. Rather, we consider whether the Council followed the right process to reach its decisions. If we consider the Council followed processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
42. Miss X first contacted the Council about concerns with Provision A in January 2024. The Council discussed these concerns with Miss X and concluded the issues she was complaining about at that point should be dealt with under Provision A’s own complaints process and referred Miss X to that. As the Council appears to have correctly engaged with Miss X’s concerns to decide how they would best be addressed, I cannot find fault with the decision it reached.
43. In September 2024 Miss X contacted Provision A to raise safeguarding concerns, copying in the Council. At this point the Council was under a duty to consider whether it needed to take action to safeguard Y’s welfare. The Council referred the situation to the LADO who determined the provision complained about was situated in a different borough. As a result, they sent information and recommendations to the LADO of that borough to follow up. I understand Miss X’s frustration here, but the Council appears to have followed the correct process when deciding to refer the matter to the LADO of the borough where the alleged incidents took place, and I do not find it at fault here.

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Decision

44. I do not find the Council at fault for failing to report Provision A to Ofsted as an unregistered school or for the process it followed when considering Miss X’s reports of safeguarding concerns.

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Investigator's decision on behalf of the Ombudsman