Summary: Miss X complained that the Council failed to ensure her children received a suitable education. The Council recognised fault and offered a remedy in line with the Ombudsman’s Guidance on Remedies. We have ended our investigation as we would be unlikely to reach a different outcome.

The complaint

1. Miss X complained the Council has not secured a suitable education for her two children who have been out of school since they moved to the area in autumn 2023. Both children have Special Education Needs (SEN) and Education, Health and Care (EHC) Plans. Miss X said they are missing out on education and socialising.

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The Ombudsman’s role and powers

2. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I have considered Miss X’s complaint and have spoken to her about it.
5. I have also considered the Council’s response to Miss X and to my enquiries.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

Education, Health and Care (EHC) Plans

7. A child or young person with special educational needs (SEN) 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.

Reviewing EHC Plans

8. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
9. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
10. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
11. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
12. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Transfer of EHC Plans between councils

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)

General Section 19 duty

14. 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.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

Background

16. Miss X’s two children (P and R) have SEN and EHC Plans. In 2023, the family relocated from Council A area to Council B (‘the Council’) area.

EHC Plan transfer

17. In August 2023, Council A sent Child P’s file and notification of the move to Council B. This included a letter stating that Miss X wanted P to stay at their current specialist school.
18. In October, Council A resent P’s information after Miss X informed it that Council B had not received it.
19. A week later, Council A issued R’s final EHC Plan. It sent the information to Council B.

The family relocated

20. In July 2023, the family relocated to Council B’s area.
21. P remained at the specialist school as requested by Miss X.
22. Unbeknownst to Miss X, R was removed from the roll of the mainstream school in October. This was not communicated to Miss X.

Miss X complained

23. In early January 2024, Miss X contacted the Council. She said that R had been removed from the roll of the mainstream school in Council A area in October without another school to move to.
24. The Council upheld Miss X’s complaint about the delay in securing a school placement for R and for poor communication. The Council offered Miss X a financial remedy for time and trouble and distress.
25. Miss X said that she transported P to the specialist school when she could, but P was struggling with attendance. Miss X asked for a specialist school closer to home.
26. The Council issued a final response to Miss X’s complaint. It agreed to remedy P for two missed terms of education (£4800) and 1.5 terms for R (£3600) plus time and trouble and distress payments. A total of £9400.

EHC Plan phase transfer – Child P

27. Later in January, the Council issued a phase transfer draft EHC Plan for P and sent it to Miss X. The Council consulted several specialist schools in the area, but none were able to offer P a place.
28. The Council issued a phase transfer final EHC Plan for P in February and referred P to an independent education provider for alternative provision.
29. Miss X told the Council she would consider mainstream placements for P.
30. The Council carried out an annual review of P’s EHC Plan. It issued a draft amended EHC Plan in March and consulted local mainstream schools.
31. The Council also chased the alternative provision referral. It arranged a home visit and tutoring for P started after the Easter break. P received 6 hours per week. The Council recognised this was below the 25 hours per week entitlement. It apologised to Miss X and offered a further financial remedy in line with the Ombudsman’s Guidance on Remedies.
32. Following several negative responses from consulted schools, in April, the Council received an offer for P from a specialist school in the area. Miss X raised concerns about the school.
33. In May 2024, Miss X visited the school.
34. In July 2024, the Council informed Miss X that it was going to name the school in P’s EHC plan. It issued the final amended EHC Plan the next day.

EHC Plan phase transfer – Child R

35. In May 2024, the Council issued an amended draft EHC Plan for R. The Council consulted several mainstream schools in the area. Over the months that followed, the Council received negative responses from all the schools.
36. In June, the Council referred R to an independent education provider for alternative provision. It chased this in August.
37. The Council recognised it was at fault for not ensuring R had access to a full-time education. As R remained without a school placement and tutors had yet to be organised, the Council offered a further remedy in line with the Ombudsman’s Guidance on Remedies.

Summary

38. Both of Miss X’s children have been without a suitable education for a substantial period. The Council has recognised its fault and the injustice caused to the children. It has offered a substantial remedy in line with the Ombudsman’s Guidance on Remedies. This totalled £13,624 for the missed education and the distress caused as well as the time and trouble it has taken Miss X to complain.
39. Further investigation would be unlikely to result in a different outcome. I have therefore ended my investigation.

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Final decision

40. I have ended my investigation. Further investigation would be unlikely to result in a better outcome for Miss X and her children.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman