Summary: Ms F complained the Council failed to provide her son (X) with an education in school or through an alternative provision placement since September 2023. She also said it communicated poorly and caused delays in its complaints handling. The Council agreed it was at fault. We found its proposed remedy was not enough. It will apologise to Ms F and make payment to her and X to properly acknowledge the injustice its faults caused them. We have also made service improvement recommendations to address the delays and faults.

The complaint

1. The complainant, Ms F, complained about how the Council handled her son’s (X), who has an Education, Health and care (EHC) plan, education since September 2023. She said it failed:

• to find a suitable school placement without delay when it became aware his school was closing down in Summer 2023;
• to provide any alternative provision and the special educational needs provision set out in his EHC plan since September 2023;
• to ensure a caseworker and management oversight was allocated to X’s case and to communicate appropriately with her; and
• to respond to her complaint in line with its policy and within timescales it promised her.

2. Ms F said, as a result, X experienced distress and had a loss of education. She said she also experienced distress and uncertainty, and had time and trouble to get the Council to respond and action her concerns.

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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. 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(i), as amended)

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How I considered this complaint

5. I considered evidence provided by Ms F and the Council as well as relevant law, policy and guidance.
6. Ms F 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

Relevant law, guidance, and policy

Education, Health and Care (EHC) plans

7. 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. 
8. 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)
9. 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.

Alternative provision

10. 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.
11. 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)
12. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
13. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

14. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Complaints handling

15. The Council says it will acknowledge complaints within three working days of receiving a complaint. It will then respond to:
• stage one complaints within 10 working days, which may be extended to 20 working days. A manager from the responsible service will provide its response; and
• stage two complaints within 20 working days. An officer independent of the service complained about will normally provide its response, unless specific expertise or judgement is needed.

What happened

16. Ms F’s son (X) has been diagnosed with several health conditions which impacts his ability to receive an education. He has an EHC plan which sets out his special educational needs and the support he should receive.
17. In 2023 X was attending a special school which was listed in his EHC plan. In summer 2023 Ms F told the Council X’s special school was closing down and he therefore had no school placement from September 2023.
18. From September 2023 Ms F continued to inform the Council X did not have a school placement. He also received no alternative provision and special educational needs provision as set out in his EHC plan. She also said it had not allocated another caseworker to X’s case since its previous caseworker left the Council.
19. In December 2023 she complained to the Council. The Council apologised for the length of time it had taken to find X a new school placement and it had not advised her the allocated caseworker was leaving. It said it had undertaken placement searches and was liaising with alternative provision providers.
20. Ms F was not satisfied with the Council’s response as X was still without any education. She also said it was not that she was not informed about the caseworker leaving, but the fact no one was allocated to X’s case and she had no one to contact regarding her concerns.
21. The Council acknowledged Ms F’s stage two request in late 2023.
22. In early 2024 the Council agreed X needed further assessments to ensure any provision and his EHC plan could meet his needs. It made referrals for assessments by an educational psychologist and speech and language therapist. Other professional reports were also considered.
23. Over the following months the Council considered some alternative provision options for X including residential settings. Ms F also visited a provider and had a home visit. But this did not lead to any offers of alternative provision or any support for X’s special educational needs.
24. Ms F chased the Council for a response to her complaint in February 2024. The Council said it had a backlog of complaints and staffing absences. Its team would receive more resources to tackle the backlog, and it would respond in a week.
25. In April 2024 she asked the Ombudsman to consider her complaint as she still had not received a response from the Council. The Council told the Ombudsman it would provide its complaint response to Ms F.
26. In May 2024 the Council issued its final amended EHC plan for X. This did not list a school placement, but the type of placement X needed in Section I. It set out the support X should receive in a school or other placement which included speech and language therapy.
27. In August 2024 Ms F again asked the Ombudsman to consider her complaint as the Council was yet to provide its response. The Council confirmed it had not responded, and it still had a small backlog. It aimed to respond to Ms F within two weeks. However, no response was received by early November 2024 and the Ombudsman chased the Council again.
28. The Council provided its final complaint response to Ms F in November 2024. It upheld her complaint and agreed:
• It had failed to provide X with a school placement, alternative provision or any EHC plan provision since Summer 2023. However, it said it had been proactive in trying to arrange this from 2024 and had arranged for X to be reassessed by professionals. It further explained some attempts to put provision in place had not been successful as X was unable to cope with them and some providers said they cannot meet his needs. It agreed this had caused X irreparable damage for X and uncertainty for Ms F;
• no caseworker had been allocated to X’s case for a period in late 2023 and it had misinterpreted what she meant in her complaint. She therefore had no contact with the Council which caused her uncertainty; and
• it had failed to respond to her complaint in line with its complaints policy. It explained it had experienced an increase in demand and a backlog as a result. It had recently allocated more resources to address the delays.
29. The Council apologised to Ms F and suggested a remedy of £100 for the distress and uncertainty it had caused her. It said it would continue to look for a school placement for X and alternative provision until then.
30. Ms F asked the Ombudsman to consider her complaint. She confirmed she has appealed the Council’s May 2024 EHC plan for X to the SEND Tribunal, but only in relation to a refusal by her preferred school to be listed in X’s EHC plan.

Analysis and findings

31. I have considered Ms F’s complaint from September 2023 until January 2025. This is because:
• her complaint was in time as she brought her concerns to our attention within 12 months of the events complained about.
• Ms F’s appeal of the Council’s amended final EHC plan for X issued in May 2024 only relates to the refusal of her preferred placement to be listed. This did therefore not impact the Council’s duty to provide alternative provision or the special educational needs provision set out in his EHC plan.
32. The Council upheld Ms F’s complaint and agreed it has failed to provide X with a school placement and any education since September 2023.
33. I acknowledge X’s complex needs made it challenging for the Council to find a school or alternative provision placement he could access, and it took steps to source placements or providers. However, it is the Council’s duty to ensure it has placements and provision available to all children in its area regardless of their needs. I therefore agree the Council was, and continues to be, at fault. This was for:
• (School placement) its initial delay to take action to find X a suitable school placement between Summer 2023 and late 2024 as it was aware his previous school was closing down from September 2023. I found it has made efforts to find a school placement from 2024 onwards and this was partly delayed due to reassessing X;
• (Alternative Provision) its delay and inability to find X suitable alternative provision he could access, including the special educational needs support and therapies listed in his EHC plan in 2023 and final amended EHC plan since May 2024. X has therefore received no education or other provision he was entitled to for almost 18 months;
• (Communication) its failure to have a caseworker allocated to X’s case for a period in 2023 which meant Ms F did not have anyone to contact or receive updates from. It also communicated poorly at times with her and some of its communication wrongly suggested it was due to her or X that the options the Council considered did not succeed; and
• (Complaints handling) it failed to respond to Ms F’s stage two complaint in line with the 20 working days set out in its policy. It took over 10 months for it to do so. During this time, it also gave her and the Ombudsman assurances it would respond without further delay.
34. I have considered the remedy the Council proposed to Ms F and the steps it says it has taken to resolve the issues she has experienced.
35. I am found the Council’s proposal was not enough to remedy the injustice it caused, and I am not satisfied it has addressed the underlying issues which has caused the failures.
36. In reaching my view, I am conscious:
• Ms F experienced significant distress and uncertainty as a result of the Council’s failure to have a caseworker allocated, poor communication, and having to support and look after X when he was not receiving his education. She also had significant time and trouble to pursue her concerns with the Council as a result of its complaint handling delays.
• X experienced a loss of any education and special educational needs provision as set out in his EHC plans during an 18-month period. This also caused him distress and uncertainty.
37. I have also made service improvement recommendations for the Council to address the failures identified, or share with the Ombudsman the steps it has taken to reduce delays, backlogs, and its potential lack of alternative provision placements for children with similar special educational needs to X.

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Action

38. To remedy the injustice the Council caused to Ms F and X, the Council should, within one month of the final decision:
1. apologise in writing to Ms F to acknowledge the injustice its faults caused her and X;

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 Ms F a symbolic payment of £300 to acknowledge the distress and uncertainty she experienced;
3. pay Ms F £300 to acknowledge the time and trouble she had to pursue her complaint as a result of the Council’s significantly delayed complaints handling;
4. pay Ms F a further £7,800, to use as she sees fit for the benefit of X, to acknowledge the significant loss of education and special educational needs provision he experienced between September 2023 to the end of January 2025.

In total the Council should pay Ms F £8,400.

39. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4.  
5. review, or share the outcome of any recent review, of alternative provision placements available within the Council’s area for children with complex special educational needs. This is to ensure it can adhere to its duties under Section 19 of the Education Act 1996 without delay. If the Council find it lack alternative provision placements it should set out an action plan with how it intends to address this; and
6. share with the Ombudsman the steps the Council had taken and intends to take to address backlogs in its complaints handling, including an update on its current backlogs.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice. The Council will apologise and make payment to Ms F. I have made service improvement recommendations to address the failures identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman