Summary: Miss B says the Council failed to identify a suitable school placement for her son, failed to put in place alternative provision and failed to respond to her communications. The Council has not identified a suitable school placement for Miss B’s son, delayed putting into place alternative provision, delayed issuing a final education, health and care plan and failed to respond to all her communications. That caused Miss B distress and means her son missed out on education for 12 months. An apology, payment to Miss B, reminder to officers and agreement to issue a final education, health and care plan is satisfactory remedy.

The complaint

1. The complainant, Miss B, complained the Council:
• failed to identify a suitable school placement for her son;
• delayed putting in place alternative provision;
• delayed issuing a final education, health and care plan (EHC Plan); and
• failed to respond to her communications.
2. Miss B says the Council’s actions have affected her son emotionally and mentally and led to him missing out on schooling.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. 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)
6. 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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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Miss B and the organisation 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

What should have happened

9. A child or young person with special educational needs (SEN) may have an 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 council can do this.
10. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.
11. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
12. We issued a focus report in July 2022: "Out of school, out of sight?" (focus report). This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for local authorities, including they:
• consider the individual circumstances of each case and be aware the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day to day basis) - and even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, and take account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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.
13. The special educational needs code of practice (code of practice) says where a child or young person moves to another local authority, the ‘old’ authority must transfer the EHC Plan to the ‘new’ authority.
14. The code of practice says the requirement for the child or young person to attend the educational institution specified in the EHC Plan continues after the transfer. However, where attendance would be impractical, the new authority must place the child or young person temporarily at an appropriate educational institution other than that specified – for example, where the distance between the child or young person’s new home and the educational institution would be too great – until the EHC Plan is formally amended.
15. The code of practice says the new authority may, on the transfer of the EHC Plan, bring forward the arrangements for the review of the plan, and may conduct a new EHC needs assessment regardless of when the previous EHC needs assessment took place.
16. The code of practice says the process for re-assessment will be the same as the process for a first assessment (once the decision to carry out an assessment has been taken). Re-assessments must follow the same process as for the first EHC needs assessment and drawing up of the EHC Plan, with the same timescales and rights of appeal for the child’s parent or the young person.
17. The code of practice says the overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC Plan, subject to some exemptions. However, the local authority must aim to complete the process as soon as practicable.

What happened

18. Miss B’s son has SEN and an EHC Plan. Until November 2023 Miss B’s son lived in a different council’s area. Miss B told the Council her son was moving into its area in November 2023 and provided the Council with a copy of her son’s EHC Plan.
19. In January 2024 Miss B put in a complaint. Miss B also asked the Council to carry out another EHC needs assessment. The Council agreed to carry out the EHC needs assessment on 13 February.
20. When responding to Miss B’s complaint on 16 February the Council apologised for its poor communication. The Council said it had consulted various schools but none could meet Miss B’s son’s needs. The Council said it would review the EHC Plan and continue to consult schools.
21. Following a further complaint the Council accepted it had delayed completing the EHC needs assessment. The Council apologised and offered Miss B £500 to reflect her son’s missed education to that point.
22. The Council agreed to issue an EHC Plan on 18 June. The Council issued a draft EHC Plan on 7 October and began consulting schools. None of the schools the Council consulted could offer Miss B’s son a place.
23. In November the Council began discussing the possibility of a tutor for Miss B’s son while it continued to try to identify a school place. The Council identified a tutor and put in place eight hours per week education from 25 November.
24. Despite issuing a further draft EHC Plan in November the Council had not issued a final EHC Plan when it responded to my enquiries in December 2024.

Analysis

25. Miss B says the Council failed to identify a suitable school placement for her son when she moved into its area. Miss B also says the Council failed to put in place any alternative provision until a year after the family moved into the Council’s area. Miss B therefore says her son missed out on education for 12 months.
26. The evidence I have seen satisfies me the Council knew Miss B’s son had moved into its area in November 2023. I am also satisfied the Council knew Miss B’s son had SEN and an EHC Plan, which it had a copy of. While I do not have a copy of the evidence I note the Council’s complaint response in February 2024 referred to the various school consultations the Council had undertaken. I am therefore satisfied the Council had begun trying to find a school placement for Miss B’s son once he moved into the Council’s area.
27. I consider it likely though the Council put that search on hold until it issued a final EHC Plan given this is what the Council told Miss B later in 2024. The Council told Miss B it had delayed consulting schools because it would normally seek to issue a draft EHC Plan first. I am concerned about the Council’s approach here.
28. I appreciate the Council agreed to reassess Miss B’s son following her request in January 2024. However, the Council knew Miss B’s son was not receiving education and had an existing EHC Plan. I therefore see no reason why the Council could not have continued to consult schools based on the existing EHC Plan. Failure to do that is fault. I am also concerned the Council failed to follow the code of practice which requires the Council to place the child at an appropriate educational institution temporarily when they are no longer able to attend the school named on their EHC Plan. That is also fault.
29. I am also concerned between November 2023 and November 2024 there is no evidence the Council considered putting in place alternative provision for Miss B’s son. That means Miss B’s son missed out on education between November 2023 and November 2024 when the Council put eight hours provision per week in place. Failure to put in place education for Miss B’s son means he received no education and none of the provision in his EHC Plan for 12 months. That is a serious injustice.
30. I am also concerned the Council delayed issuing an EHC Plan following the decision to carry out a further assessment. The Council should have issued a final EHC Plan within 20 weeks and failed to do so. I note the Council says it deliberately delayed issuing the final EHC Plan until it could name a school in section I. While I understand the point the Council makes, the code of practice is clear councils must adhere to the timescales set out. As the Council notes, it could have issued an EHC Plan with the type of school named in section I and that is what the code of practice requires the Council to do if it cannot name a specific school. Failure to do that means Miss B had her right of appeal delayed and potentially means her son missed out on further SEN provision.
31. As part of the remedy for the complaint I recommended the Council remind officers dealing with EHC Plans of the need to meet the timescales set out in the code of practice. The Council should also prioritise issuing a final EHC Plan to give Miss B her right of appeal, should it not already have done so. The Council has agreed to my recommendations.
32. Miss B also says the Council failed to respond to her communications. In its complaint response in February 2024 the Council accepted there had been poor communication with Miss B. Also, I have a copy of emails from Miss B chasing the Council for information, particularly around any arrangements to home school her son until the Council identified a school placement. I do not have any evidence the Council responded to those emails. I therefore consider it likely, on the balance of probability, there were missed communications and a failure to keep Miss B up-to-date with what was happening. That is fault.
33. The Council has offered a remedy of £6,000 to reflect the missed education and a further £500. I consider £6,000 a suitable amount to reflect the missing education between November 2023 and November 2024. I also consider that amount in line with the Ombudsman’s guidance on a suitable remedy when a child has not received any education, taking into account the fact Miss B’s son also had an EHC Plan and missed out on the provision in that EHC Plan. I therefore do not make any further recommendation for a financial remedy to reflect the missing education.
34. I recommended though the Council remind officers of what the code of practice says about what the Council should do when a child with an EHC Plan moves into its area from another area and cannot attend the school named in the existing EHC Plan. The Council has agreed to my recommendations.
35. I also consider the extra £500 the Council has offered Miss B a satisfactory amount to reflect the distress she experienced because of the faults identified in this statement. That is also in line with what the we would normally recommend.
36. I note the Council says it intended to put in place 10 hours education per week for Miss B’s son. The Council says it reduced that to 8 hours per week at Miss B’s request. I have seen no evidence to suggest Miss B asked the Council to reduce the number of hours provided. In fact, Miss B raised concerns with me as the Council told her MP it was providing 2.5 hours education five days a week when that is not accurate. As the documentary evidence is not clear about the amount of hours Miss B’s son can cope with I recommended the Council discuss with Miss B the number of hours education her son can manage, until the Council can identify a suitable school placement for him. The Council has agreed to my recommendations.

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Action

37. Within one month of my decision the Council should:
• apologise to Miss B for the distress and frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Miss B £6,500;
• discuss with Miss B the amount of hours her son can manage in education pending the Council identifying a suitable school placement and then put those hours in place;
• issue a final EHC Plan if the Council has not already done so;
• remind officers dealing with children with an EHC Plan transferring into its area of the need to follow paragraphs 9.157-9.160 of the code of practice;
• remind officers in education of the need to ensure the Council complies with its section 19 duty by putting in place alternative provision for children that are not attending school;
• remind officers dealing with EHC Plans of the need to ensure the timescales set out in the code of practice are adhered to.
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 has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman