Summary: Mr X complained the Council delayed in securing a school place for his son, Z, when he moved into the area. We find the Council at fault for a delay in securing special educational provision for Z. This caused Mr X distress and frustration and meant Z missed two terms of education. The Council has agreed to apologise, re-offer its initial remedy and make an additional financial payment to remedy the injustice caused.

The complaint

1. Mr X complained the Council delayed in securing a school place for his son when he moved into the area. Mr X told us that, as a result, his son has missed over a year of education, losing both learning and social development. Mr X also told the Council’s actions have damaged the family’s wellbeing and stability. Mr X would like the Council to apologise, provide a symbolic payment, take immediate steps to secure education and provide him with a single point of contact to make communication consistent. Mr X would also like the Council to review its policies and staff training to ensure families are properly guided and supported.

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The Ombudsman’s role and powers

2. 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)
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. 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)
5. 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

6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
9. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
10. The Council issued an amended final Education, Health and Care Plan for Z in January 2025. Mr X had a right to appeal the placement named in this Plan however, within three weeks of issue, the Council agreed to consider consulting with specialist placements. I therefore consider it reasonable that Mr X did not appeal this Plan.
11. The Council issued a further amended Education, Health and Care Plan in February, having decided not to name a specialist placement as Mr X requested. Mr X had a right to appeal this Plan. Given that Mr X disagreed with the placement named, it was reasonable for him to use his right of appeal.
12. I have investigated the Council’s actions in processing the area move and providing special educational provision between March 2024 and February 2025.

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How I considered this complaint

13. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
14. Mr 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

Legal and administrative background

15. 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 the council can do this. 
16. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

17. 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). 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)  
18. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

19. 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)  
20. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s 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;

What happened

21. Z had an EHC Plan issued by the old Council in December 2022. The Plan named a mainstream primary school. Z stopped attending the school in May 2023.
22. Mr X told us Z moved to the new Council area in March 2024. Mr X has provided evidence the Council’s social services team were informed of Z’s move at the end of May 2024.
23. In accordance with the Special Educational Needs and Disability regulations 2014, the Council should have ensured Z was receiving the special educational provision set out in his Plan by the third week in June 2024.
24. The Council processed the move-in paperwork in the second week of October 2024. As part of the move-in process the Council completed consultations with schools in its area.
25. Mr X contacted the Council in January 2025 to raise concerns that Z remained without a school place. In response the Council issued an amended final Plan which named a mainstream school.
26. Mr X had a phone call with the Council to discuss the Plan at the end of January 2025. During this call the Council agreed to consult with specialist settings and consider whether tuition was required for Z.
27. The Council completed its consideration of Mr X’s request in the first week of February 2025. The Council’s decision was to refuse the tuition and name a mainstream school in section I of Z’s EHC Plan.
28. The Council issued an amended final EHC Plan in the second week of February 2025. Mr X had a right to appeal this Plan.
29. Mr X submitted a complaint to the Council in January 2025 about the failure to secure education for Z. In response to this complaint, the Council accepted there had been a delay in securing suitable provision. The Council apologised and offered a symbolic payment of £1800. This was calculated at £300 per month for the delay between September 2024 and February 2025.

My findings

30. The Council’s children’s social care team was aware of Z’s move to the area from the end of May 2024. There was a delay in the Council processing the move-in paperwork and taking action to consider its section 42 duty to ensure Z received the special educational provision set out in his EHC Plan. This is fault which caused Z to miss out on approximately two terms of special educational provision between June 2024 and February 2025.
31. Where we find a fault has caused a loss of educational provision, our Guidance on Remedies recommends a symbolic payment of between £900 – £2,400 per term of missed education to acknowledge the harm caused by that loss. The Council’s offer of £1800 falls at the lowest end of this scale. Based on the individual circumstances of this case, I have recommended the Council make an additional symbolic remedy payment to acknowledge the harm to Z and Mr X caused by the loss of education for two school terms.

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Action

32. Within one month of the final decision the Council will:
• Apologise to Mr X for the injustice caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• If Mr X has not already received the Council’s offer of a symbolic remedy payment of £1800 this should be reoffered.
• To bring the symbolic payment in line with our Guidance on Remedies, the Council should offer an additional symbolic payment of £1,100. This is calculated at an additional £550 per term of missed education.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman