Summary: Mrs Y complained about the way the Council dealt with her child, X’s special educational needs and educational provision following a move to its area. We have found fault causing injustice by the Council in failing to: place X temporarily at another school; secure their special educational needs provision; and make suitable alternative provision following the transfer of their Education, Health and Care Plan. The Council has agreed to remedy this by: apologising to Mrs Y and X; and making payments to reflect the distress caused and the impact of the missed education on X.

The complaint

1. Mrs Y complains about the way the Council dealt with X’s special educational needs and educational provision following her family’s move to the Council’s area in November 2024. She says the Council failed to provide X with:
1. a placement and special educational needs provision as set out in their EHC Plan transferred from their previous council; and
2. suitable alternative provision during the period before they were able to start at their new placement.
2. Because of the Council’s delays and failures, Mrs Y says X has missed out on most of their education for the school year 2024/2025. This has had a huge impact on X, their wellbeing and future educational progress, and also on the family. She was unable to work while X was without a full-time placement.
3. Mrs Y wants the Council to make proper redress for the effect of its failures on X and the family.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

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

Back to top

What I found

What should have happened

EHC Plan 

10. 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.
11. 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).

Transfer of EHC Plan between councils 

12. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council on the day of the move. The new council is then responsible for maintaining the plan and securing the special educational needs (SEN) provision set out in it.
13. The requirement for the child to attend the educational placement specified in the plan continues after the transfer. But where attendance would be impractical the new council must place the child temporarily at an appropriate educational placement other than specified until the EHC Plan is formally amended.
14. 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)  

Alternative education provision

15. 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. We refer to this as section 19 or alternative education provision.
16. The statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
17. 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)). It must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated.

What happened

19. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

20. X had an EHC Plan issued by Council B. Their final plan issued in March 2024 named a mainstream school as their education placement with the specified SEN provision being delivered through the school
21. Mrs Y, X and the family planned a move from Council B into the Council’s area, some considerable distance away.
22. Mrs Y says she contacted the Council before the move about the arrangements for X’s education. It told her it could not take any steps until they had completed their move.

November 2024: X’s move to the Council’s area

23. The family completed their move to the Council’s area on 15 November. Council B emailed X’s file and EHC Plan to the Council on 14 November 2024.
24. Mrs Y heard nothing from the Council following the move. She contacted it on 21 November asking about the arrangements for X’s educational provision.
25. The Council logged the file from Council B on its records on 22 November. It then confirmed to Mrs Y it had received the file from Council B and taken over responsibility for X’s EHC Plan.

December 2024: Mrs Y’s complaint and request for alternative provision

26. On 3 December Mrs Y contacted the Council again. She complained the Council had failed to provide X with an education and their SEN provision since the transfer of their EHC Plan on 15 November.
27. The Council replied on 6 December. It said it would send out consultations for a new placement for X now. Mrs Y complained about its delay in doing this. She told it their parental preference for X’s new placement was school C. The Council sent consultations to school C and another school.
28. Mrs Y also asked the Council to arrange alternative provision for X.
29. From 12 December the Council arranged two hours a day of tuition at home for X which was shared with a sibling.
30. Both school C and the second school replied to the consultation, saying they were unable to meet X’s needs and their admission would be incompatible with the efficient education of other pupils.

January to February 2025: issue with X’s alternative provision

31. On 8 January Mrs Y told the Council the home tuition was not suitable alternative provision for X.
32. Mrs Y cancelled X’s home tuition from 10 February 2025.

Further consultation with school C

33. In January 2025, the Council told Mrs Y it was considering using its statutory power to direct school C to admit X. It then met with school C on 22 January to discuss the school’s concerns about admitting X.
34. The Council also sent out consultations to two other schools.
35. Following input from its legal advisers, the Council advised school C on 25 February it was proposing to direct it to admit X. It also told the school it would increase its funding to pay for the additional staff member required to meet X’s needs.
36. In its final response to Mrs Y’s complaint, the Council said it was working with her on a plan to name her school of parental preference.

March to April 2025: school C offers X a place

37. On 5 March, school C confirmed it would recruit the additional staff member required to support X. It said it would issue an admission letter for X once this had been done.
38. On 16 April school C issued an admission letter confirming X’s start date of 28 April.
39. X started at school C on 28 April 2025.
40. The Council proposed the school should review X’s EHC Plan in line with the current review schedule.

My decision - was there fault by the Council causing injustice?

The transfer of X’s EHC Plan

41. X’s EHC Plan was transferred by council B, as the “old” council to the Council, as the “new” council, on 15 November 2024. This was the day on which the family moved into the Council’s area. Council B had notified the Council about the move and sent X’s file and EHC Plan on 14 November. The Council then became responsible for maintaining and securing the provision in X’s EHC Plan from 15 November.
42. As it was clearly impractical for X to continue to attend the educational placement named in their plan, which was in a different part of the country, the Council had a duty to place X at another appropriate educational placement until their EHC Plan was formally amended. It failed to do this until 28 April 2025, over five months later.
43. The Council should have reviewed X’s EHC Plan by March 2025 (within 12 months of its last review in March 2024). It failed to do this, but said the proposed school C should arrange this once X had started there at the end of April 2025.
44. The Council also failed to secure X’s SEN provision from 15 November 2024, on the transfer of the EHC Plan, until 28 April 2025 when X started at school C.
45. These failures were fault. I have considered the impact of this fault below.

Alternative Provision

46. The Council knew, from 15 November 2024, X was out of school and not receiving a suitable education. It had a duty to arrange alternative provision for X until it was able to find another appropriate school for X to attend.
47. The Council provided X with 10 hours a week of shared tuition from 12 December 2024 until 10 February 2025.
48. There is no evidence the Council properly considered whether this alternative provision was a suitable education for X’s age, ability, aptitude and special educational needs, or that it decided it should not be full-time for reasons of X’s physical or mental health. This failure was fault.
49. Based on the information available, my view is 10 hours a week of shared tuition was not enough to provide X with an efficient education suitable to their age, ability, aptitude and special educational needs.
50. The Council then failed to consider and arrange any other suitable alternative provision for X from 10 February until they started at their new school on 28 April.
51. My view is the Council failed to provide X with suitable full-time alternative provision from 15 November 2024 to 28 April.
52. These failures were fault.

Impact of the failures to place X at another school, secure their SEN provision and make suitable alternative provision

53. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the child’s special educational needs; any educational provision - full or part-time, without some or all of the specified support - made during the period; and whether additional provision now can remedy some or all of the loss.
54. We also consider factors such as whether the period was a key stage for the child, the impact on their education, development and life-chances. And where there is a move in from another council area, whether the lack of a school place meant a missed opportunity to make new friends.
55. In X’s case, I consider they were provided with less than half the education they should have received during the period from 15 November 2024 to 10 February 2025. They then received no educational provision from 10 February to 28 April 2025. X also missed out on the SEN provision in their EHC Plan.
56. I have taken into account the impact of this period without suitable education on X’s wellbeing during this time, and on their future progress, and the delay in starting at a new school on their opportunity to make local friends. My view is the payment should be towards the middle of the range for the period to February 2025 and at the top of the range from February to April 2025.
57. I also consider the failures caused Mrs Y and her family avoidable upset, worry and uncertainty about the arrangements for X’s education and the impact on them going forward. I have recommended the Council make a payment to Mrs Y to symbolise and acknowledge the avoidable distress its failures caused.

Service improvements

58. As I have recommended service improvements for similar issues in a related complaint about the Council, I don’t propose repeating these recommendations in this case.

Back to top

Action

59. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y, and separately to X in a way that is suitable for their age and capacity, for its failure to: place X temporarily at another appropriate educational placement and secure their SEN provision following the transfer of their EHC Plan; and properly consider its duty to, and provide X with a suitable full-time education in the period before they were able to start at their new school. This apology should be in line with our guidance on Making an effective apology:
2. pay Mrs Y, on X’s behalf, £2,600 (based on missed provision over 1.5 terms). This is a remedy for X’s benefit to recognise the injustice the missed education has caused them: and
3. pay Mrs Y £200 to reflect the avoidable upset, worry and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies
60. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

61. I propose finding fault causing injustice. The Council has agreed to take the above action to remedy this injustice.

Back to top

Investigator's decision on behalf of the Ombudsman