Summary: Mrs X complained about the Council’s failure to provide her child (Y) with a suitable education and support for her special educational needs when she moved into the area. We found the Council to be at fault because it failed to secure a school place and there was poor communication with Mrs X. It also consulted with the wrong school initially. This caused distress and loss of provision. To remedy this injustice, the Council agreed to apologise, made a symbolic payment and take action to improve its service.

The complaint

1. Mrs X complains about the Council’s failure to provide her daughter, Y, with an education and support for her special educational needs when she moved into the Council’s area. She also complains about lack of communication.
2. She says the Council’s apology for the delay is an inadequate remedy and fails to recognise the distress caused by the Council’s poor handling of the matter

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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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
5. 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.
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
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(1), as amended)

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs 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 guidance

Education Health and Care Plans

10. A child with special educational needs (SEN) may have an Education Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
11. 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).
12. The SEND ‘Code of Practice’ reinforces that:

• There must be no gap in provision when a child moves area.
• The new council has a duty to secure the provision in Section F from the date of transfer.
• If it cannot arrange the exact Section F provision instantly, it must arrange equivalent/interim provision without delay.

13. Councils have 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)  

What happened

14. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
15. Mrs X’s daughter, Y, has special educational needs and an EHC Plan. In September 2024, Mrs X and her family moved into the Council’s area. Using the Council’s admissions process, Mrs X applied for a school place at School P. In the meantime, Y continued to attend her “old” school, together with another sibling, D. This was a 50 mile roundtrip.
16. The Council sent the application to the wrong, albeit similarly named, school. In October 2024, School P told the Council it was unable to offer at place to Y. The Council consulted with other schools, including School F.
17. In October 2024, D was offered a place at a local school. Mrs X says it was not possible to take both Y and D to their different schools and so she had no choice but to remove Y from her old school. She was also becoming increasingly concerned about lack of communication from the Council that prompted her to complain later that month.
18. In December 2024, School F advised the Council it would accept Y but needed extra resources to satisfy Y’s EHC Plan, specifically a dedicated teaching assistant (TA). A meeting attended by Mrs X, the Council and School F was held to discuss what support Y required. The School’s deputy headteacher explained the school would not want Y to start before a TA was appointed.
19. Shortly afterwards, the Council agreed to provide funding to allow School F to recruit a TA and advised School F that Y should be admitted at the start of the spring term.
20. Although the TA had not yet been appointed, according to the Council, School F said it was able to meet Y’s needs within existing resources in the short term.
21. Mrs X did not agree this was an acceptable solution and wanted to wait until the TA was in post. This would ensure there was minimal disruption and distress to Y.
22. It took approximately two months to recruit a TA. Mrs X says Y was not provided with any interim support except for a folder of work in the final week. She considered this to be both inadequate and inappropriate. Y started School F in late February 2025.
23. Mrs X says both her and Y’s well-being was negatively affected by lack of education, routine and SEN support, and believes the Council did not act swiftly enough to resolve this issue. This formed the basis of her complaint to the Council and then to the Ombudsman. She also complained about poor communication from the Council throughout the process. She asked the Council to reimburse her petrol costs.

The Council’s position

• It accepted an administrative error meant the wrong school was initially consulted It apologised for this error during its complaints handling.
• It would not refund Mrs X petrol costs for the time she was taking Y to her old school because she was taking that journey anyway with her sibling.
• It was Mrs X’s choice to delay Y’s start at School F until the TA was in post. School F told the Council verbally it was able to use its existing resources to satisfy Y’s EHC Plan.
• The initial delay in securing a school place and lack of communication with Mrs X was caused by stretched resources rather than incompetence. Work had been taken and was ongoing to meet the excessive demand on the SEN service.

Analysis

The autumn term

24. When a child with an EHC Plan moves to a new local authority area, the law says the new council becomes responsible for delivering suitable provision as soon as the child becomes resident. The Council must immediately secure all provision in Section F or make an equivalent interim offer. Within six weeks, the new council must write to the parent or young person confirming it has taken responsibility and explaining whether it intends to reassess or review the plan.
25. If a suitable school placement is not immediately available, the council must provide suitable education on an interim basis. In Y’s case, this process did not happen.
26. Mrs X advised the Council’s SEN team that Y had moved into the area on 12 September 2024. By law, either a school place, or alternative provision should have been made available by 3 October 2024. It was not. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframe here amounts to fault.
27. Even though the Council was aware at a relatively early stage that a school place was not immediately available, I have seen no evidence that interim provision was either considered or offered. The Council was aware there was likely to be a delay when it became aware the wrong school has been consulted in early October. This fault would inevitably lead to further delay in the consultation process and the impact of this on Y should have been addressed. Failure to do so was further fault.
28. Mrs X says this was a difficult time for her and the family because she had to continue taking both Y and D to their former school. I accept whilst this was a practical solution in the very short term, it was unsustainable once a school place was found for D, especially as by this time (18 October 2024), the Council had a legal duty to secure provision set out in Y’s EHC Plan.
29. There was also fault with its communications with Mrs X during this time period. Mrs X was not kept informed about what was happening about securing a school place, and this added to her frustration. Although I acknowledge the Council upheld Mrs X’s complaint about this matter and apologised, I do not consider this is an adequate remedy for the distress this caused Mrs X. I have made recommendations below to address this. I note the Council has taken action to improve its service in this area, so I have not made any further service improvement recommendations.

The spring term

30. The Council’s position is that a suitable school place was available for Y from the start of January 2025, and it was Mrs X’s choice not to send her then. In support of this view, the Council has relied on what it was told by School F during the Council’s stage two complaint investigation. This was that School F was, “happy for Y to have started in January 2025”. I note the Council also ensured funding was in place from the start of term and instructed the school to make the necessary arrangements.
31. I acknowledge this was a change of position to what Mrs X and the Council were told by School F at the meeting that took place in December 2024. School F was clear at that time that Y should not be admitted before the TA was appointed. But accept its position may have changed once funding was in place.
32. There is a conflict of evidence here, and because of this I am unable to determine whether School F was able to satisfy Y’s EHC Plan. Section F of Y’s previous EHC Plan did not specify that Y had to have dedicated support by a TA on a 1:1 basis. It is therefore possible that Y’s needs could have been met by existing resources in the short term.
33. Based on this, is not therefore not possible for me to make a finding, even on a balance of probabilities, on whether a suitable school place was available, but refused by Mrs X.

Injustice

34. 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.
35. 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. 
36. I am satisfied Y missed out on one half term of education. Y has SEN and it is clear from reading her EHC Plan that she required specialist support. None was provided during this time. I therefore make a recommendation based on £2400 per term.

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Agreed action

37. Within four weeks from the date of my final decision, the Council agreed to take the following action.
1. Apologise to Mrs Y for the injustice caused by the above faults. 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.
2. Pay Mrs X £200 to recognise the distress and frustrations she experienced as a result of the Council’s poor communication.
3. Pay Mrs X £100 as a symbolic contribution towards her petrol costs incurred between 3 and 18 October 2024, this being the time when the Council was responsible for ensuring interim provision was in place and Mrs X took Y to her old school.
4. Pay Mrs X £1,200 to recognise the loss of education to Y. This has been calculated at half a term of education at £2,400 per term.
5. By training or other means remind officers of the need to comply with statutory timescales when a child with a SEN moves into its area and to arrange interim support if I school place cannot be secured.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I find fault causing injustice. The Council agreed to take action to remedy the injustice to Mrs X and improve its service. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman