Summary: Mrs X complained that the Council failed to provide appropriate education to her two adopted children. The Council has already investigated the complaints and upheld them. We endorse the Council’s findings of fault which has caused avoidable distress and a loss of education for the children. The Council has accepted our recommendation for an improved personal remedy for the loss of education and avoidable distress. The Council has also agreed to review its alternative education policy. We are therefore closing the complaints.

The complaint

1. This investigation involves the complainant’s, Mrs X’s, two children, Y (reference 24 000 225) and Z (reference 24 000 228).
2. A brief summary of the complaints is:
• that the Council delayed in issuing an Education, Health and Care (EHC) Plan and failed to find Y an appropriate school until September 2024. The Council also failed to provide alternative education when there was no school place available for Y and the Council failed to check the home education being provided. I am looking at events from the end of November 2022, when the complainant says she requested a special educational needs assessment, to September 2024 when Y was placed at a school;
• in respect of Z, the Council failed to find a suitable school place, after it issued Z’s final EHC Plan, and it failed to provide alternative education in the interim. The Council also failed to check the home education being provided. I am looking at events from mid-January 2023, when the previous Ombudsman’s investigation was completed, to September 2024 when Z was placed at a school.
3. The Council upheld the complaints and offered a remedy for the lost education and avoidable distress. The Council has also found schools for both children, starting in September 2024. It offered the complainant a total remedy payment of £13,400 for the loss of education for both children and avoidable distress.
4. Mrs X did not consider the Council’s remedy was sufficient because it does not fully recognise the significant adverse impact of the Council’s faults on the children (particularly as both were adopted from care). Mrs X says that their period out of school has caused long-term harm to Y and Z because of the previous lack of social interaction and development alongside their peers.
5. Mrs X also says that the avoidable distress, time and trouble and frustration has been significant. Mrs X says she had to take time out of her employment to look after the children when they had no school place, and this has caused a short- and long-term financial loss. It is likely now that her employment contract will be terminated.
6. She also says that she has had no help when educating the children at home or oversight by the Council.

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The Ombudsman’s role and powers

7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
8. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
9. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
10. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
11. 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).
12. 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

13. Mrs X had a right of appeal to the SEND Tribunal when the Council issued a final EHC Plan for Y in September 2023, and she used mediation to make some amendments to the final Plan. The Council agreed to the amendments and therefore Mrs X did not have to pursue an appeal to the SEND Tribunal. So, I have decided that this opportunity to appeal does not preclude us from investigating.
14. In February 2024, the Council issued an amended final EHC Plan, making the changes agreed through mediation. Mrs X had a right of appeal at this point. But, because the Council agreed to look for a suitable school placement, I do not consider it was reasonable for Mrs X to resort to this remedy. So, this does not preclude us investigating.
15. An amended final EHC Plan for Z was issued in February 2023. Mrs X had a right of appeal to the SEND Tribunal in February 2023. But I am satisfied that she did not need to use that appeal right because the Council agreed to find a suitable school, and it had a duty to do so. So, that appeal right does not prevent us investigating Mrs X’s complaint.
16. On both complaints, I have exercised discretion to look at these complaints from November 2022 (Y) and the beginning of 2023 (Z) respectively, even though the complainant did not complain to us within twelve months since she realised something had gone wrong, because Mrs X has had considerable pressures on her time.

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How I considered this complaint

17. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance (listed below).
18. Because the Council upheld the substantive aspects of Mrs X’s complaints, I have referred only to key events. But I have considered the extensive history to these complaints when reaching draft findings and decisions.
19. Mrs X questioned why I have not investigated the period of January 2021 to the beginning of January 2023 in respect of Z. There was a previous Ombudsman’s investigation into Z’s situation which looked at events from September 2020 to January 2023. The Council agreed to make a symbolic payment of £800 for the uncertainty about Z’s lost provision, the loss of opportunity and frustration and delay. The Council also agreed a symbolic payment for the loss of education between September 2020 to January 2021 and to issue a final EHC Plan.
20. We closed the complaint at the beginning of January 2023. I remain of the view that the earlier period (September 2020 to January 2023) has been investigated and therefore it is appropriate to consider Z’s complaint from January 2023.
21. Mrs X also raised a concern that I had not recognised that it is only because of the Council’s many faults that she has been unable to return to work. I reconsidered this and issued an amended draft decision so that Mrs X and the Council had a further opportunity to comment before I reached a final view.
22. I have taken into account Mrs X and the Council’s further comments before reaching a final decision.

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What I found

Inability to attend education due to health needs

23. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
24. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
25. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]).
26. The Council says that it does not have a standalone policy on alternative education, but it follows the statutory guidance.

Special educational needs

27. 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. Section I names the placement, or the type of placement required. 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.
28. There should be annual reviews of the EHC plan.
29. EHC Plans should be completed within twenty weeks from the request for a special educational needs assessment, although there are exemptions to this timescale. 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 2014). The courts have said the duty to arrange this provision is owed personally to the child and is non-delegable.
30. In certain circumstances, a council can direct a school to admit a pupil with an EHC Plan.
31. If a school is not appropriate, the council can arrange for any SEN to be delivered somewhere other than at school. This is referred to as Education Otherwise Than At School (EOTAS). This should be specified in section F and section I left blank.
32. The statutory guidance, Special Educational Needs and Disability, Code of Practice (2014) states that one of the guiding principles is collaboration between education, health and social care.

Personal budget

33. A personal budget is the amount of money the council has identified it needs to pay to secure the provision in a child’s or young person’s EHC Plan. One way that councils can deliver a personal budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
34. The final allocation of a personal budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
35. Parents and carers can ask for a personal budget during a SEN assessment or during an annual review.

Home education

36. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.
37. Where a child is receiving elective home education the council is still under an obligation to conduct an annual review of the EHC Plan, and it should provide an opportunity for parents to seek additional support or discuss alternatives to home education.
38. The Department for Education’s ‘elective home education: departmental guidance’ says councils must consider if the home education is suitable. That it should continue to check the suitability of the home education and if it considers this no longer suitable it should ensure the provision specified in the EHC plan is made available.

Post adoption support

39. Adoptive families have a legal right to an assessment of adoption support needs from the local authority responsible for their post adoption support. The assessment covers a range of needs, from mental health and the need for therapeutic services to additional support during a child’s education. If the local authority decides to provide post-adoption support, it can deliver the support by itself or commission outside agencies such as registered adoption support agencies or NHS practitioners to deliver the support.
40. The Adoption Support Fund (ASF) is available to pay for services and training for adoptive parents. To access the fund, a local authority needs to do an assessment of an applicant’s adoption support needs. If the assessment shows these services would be beneficial then the local authority can make an application to the fund.
41. The Council is part of a Regionalised Adoption Agency (RAA) made up of a number of local councils.

Duty to promote the educational achievement of previously looked after children

42. Children who are placed in the care of the council are referred to as looked after children. Councils have a range of duties to these children to ensure they act in their best interests.
43. The Children and Social Work Act 2017 expanded the duties of the council to promote the education of previously looked after children. The Virtual School Head (VSH) must provide suitable advice and information in order to promote their education and can also undertake any activity they consider appropriate which will promote educational achievement. The role of the VSH is limited in comparison to their duties to children who are currently looked after given the council is no longer the corporate parent.
44. The Council says the duties of its VSH is broadly:
• to respond to parental requests for advice and information and requests from professionals;
• to develop good working relationships with designated teachers for previously looked after children;
• to improve awareness of the vulnerability of previously looked after children.
45. The Council says that its VSH has regular contact with the RAA. But, unless parents specifically ask for advice, the VSH would have no direct contact with a child or parent.

Background events regarding Y

46. In January 2021, the parents decided to home educate Y because they felt the primary school was unable to meet needs. Mrs X says Y has considerable emotional needs because of traumatic and abusive early years experiences, requiring removal from the birth family.
47. Mrs X says that she always made it clear that this was a temporary measure until an appropriate school placement could be found. Mrs X was granted a ‘career break’ from her employers with the expectation that she would return before June 2023, the maximum period which her employers stated it would allow. The Post Adoption Support Team paid a weekly allowance for Y and a monthly sum of £673.00 to make up Mrs X’s loss of earnings.

Key events regarding Y

48. In December 2022 the Council received a request from Mrs X for a statutory assessment of Y. The Council agreed to this. The Council says that the process should have been completed by mid-March 2023. But the professionals (Educational Psychologist, children’s services, health and a therapeutic provider) delayed in providing their advice. Professionals normally have six weeks to do this from the date of the request. Mrs X says that the Council delayed in asking for the advice.
49. Mrs X continued to home educate Y. In April 2023, the Council told Mrs X that the Home Education Team would contact her. Mrs X says that it did not.
50. Mrs X says she approached some primary schools directly to try to secure a place for Y but unsuccessfully. The schools stated they would need extra funding to meet Y’s needs and the schools wanted to consult the Council.
51. In May 2023, the Council completed a draft EHC Plan. But it was not sent to the parents until early June. Mrs X responded to the draft EHC Plan the following day. There was some communication between Mrs X and the SEN caseworker, after this, about school preferences. But there was no further communication from the Council.
52. In June 2023, Mrs X had to approach her Member of Parliament (MP) because her employers were unwilling to extend her career break. As a result of the MP’s involvement, Mrs X’s employers agreed to extend this. Mrs X says that her employment ‘continues to hang precariously by a thread’.
53. In July 2023, Mrs X complained to the Council about the delay in completing the EHC Plan and about the delay in resolving the children’s schooling. In September 2023, the Council accepted that it had delayed in completing the EHC planning process and it apologised. The Council started to consult various schools and issued a final EHC Plan in late September 2023. In Section I, the EHC Plan named the type of school required (mainstream).
54. The Council has provided extensive evidence of the schools it consulted unsuccessfully since September 2023. Mrs X says that she asked why Y could not be found a school given Y had an EHC Plan and was previously looked after.
55. Mrs X asked for an amendment to the EHC Plan and, after mediation, this was agreed in December 2023. The Council issued an amended EHC Plan in February 2024, and it continued to consult schools unsuccessfully. Mrs X had no need to appeal the EHC Plan because the Council agreed to look for a suitable school.
56. In March 2024, Mrs X told the SEN caseworker that Y was disengaging from home education because the child anticipated having a school place. The Council agreed to look into commissioning some home tuition while seeking a suitable school placement.
57. In April 2024, Mrs X complained to the Council because of the continuing delay in finding a suitable school for Y and the adverse impact this was having on Y, the relationship with Z and the significant distress to the family.
58. In May 2024, Mrs X says that she found out about the Council’s VSH and approached the VSH for assistance. Mrs X asked the Council to consult a particular school, School B.

The Council’s complaint response regarding Y

59. In May 2024, the Council sent its stage one response. The Council accepted that there had been a delay in issuing the final EHC Plan, that it was not as specific as the Council would expect (although this was resolved through mediation), that there was a delay in consulting schools and that a school could have been named sooner. The Council accepted that the service provided should have been of a higher standard than Mrs X and her family had received.
60. The Council said it intended to name a particular school, School C, in Y’s EHC Plan, and that it would not consult Mrs X’s preferred school, School B. This was because School C had places for both children and consulting School B would further delay naming a school. Mrs X says that she was also told School B was full.
61. Mrs X was not satisfied. She met the new Manager to discuss her complaints. It was agreed that the Council would approach Mrs X’s preferred school placement, School B. In July 2024, the Council issued a final amended EHC Plan naming School B.
62. In August 2024, the Council accepted in its stage two response that Y had been out of school since June 2023 (when Mrs X first asked for the Council to look for a school placement) and it had not provided alternative education or checked the home education.
63. The Council decided that it should have provided alternative education to Y from June 2023 when Mrs X asked the Council to find Y a school and offered £4,200 for three terms of lost education (£1,400 per term), plus £1000 for the avoidable distress.

Background facts regarding Z

64. The previous Ombudsman’s investigation (23 003 715) found fault in the Council’s failure to consider alternative education and, in January 2023, the Council agreed to remind staff of the need to consider its alternative provision policy for pupils out of school for medical reasons.
65. Z is the older child. Mrs X says Z too has significant emotional difficulties due to adverse early experiences.
66. The Council issued an EHC Plan for Z in October 2019. This provided a supported reintegration plan. In February 2020 Z began displaying increasingly unsettled behaviour. An annual review was held over two meetings in late September 2020 and mid-November 2020. The review noted that expert advice indicated Z was not ready to begin reintegration for at least another term.
67. In January 2021 Mr and Mrs X removed Z from the school roll and began home educating. Mrs X says that this was because of the impact of the pandemic in being able to identify a suitable alternative school. Mrs X says the Council was aware that the parents wanted an alternative suitable school. A draft EHC Plan was written in April 2021. Mrs X chased the Council for an update on Z’s EHC Plan in late June, early July and early August as she had not received a final. In mid-July the Council stated it wanted to discuss finding another school. Mrs X says that the Council only agreed to provide information about the process of finding another school, and the information was never sent.
68. There was a review of Z’s EHC Plan in March 2022. Mrs X says that this was a continuation of the 2020 review and only happened because of her efforts to ensure a review took place. The Council issued a draft EHC Plan in April. This recommended Z should be placed in a mainstream primary school. There was a delay in issuing a final EHC Plan and Mrs X complained to the Ombudsman. The Council issued a final amended EHC Plan in February 2023 as recommended by the Ombudsman.

Key events regarding Z’s complaint

69. Z’s final amended EHC Plan noted that Z had benefitted from the break in education because it gave the opportunity to ‘anchor’ with the parents. But Mrs X says that this ‘break’ was not meant to last five years. The proposed placement was a mainstream primary school, but no specific school was identified. It was noted that Z wanted to be at school and was intelligent, but the child’s learning ability was hindered by emotional difficulties.
70. The Council says that the parents started to look at schools but were told that they could not meet the children’s needs without additional funding. Mrs X says the schools also wanted to consult the Council directly. The Council says the parents were reassured that funding would be available.
71. In September and October 2023, the Council consulted some primary schools but received negative responses. In October, Z’s EHC Plan was issued in draft. The Council consulted other schools unsuccessfully. Mrs X raised concerns that the Council could not find a school for Z given its statutory duties under the EHC Plan and duties to previously looked after children to promote their educational achievements.
72. In December 2023, the Council arranged a review of Z’s EHC Plan and in January 2024 consulted several schools. All said that they could not meet need. In February 2024, the Council issued a final EHC Plan naming the type of school, and subsequently the Council named a school which was not the parents’ preferred choice.
73. After Mrs X met the new Manager, the Council agreed to place Z at the parents’ chosen school because this was Z’s preferred school.

Findings regarding Y

74. The Council has accepted that there was a significant delay in completing Y’s EHC Plan, that there were no checks on the home education and the Council delayed in finding an appropriate school place. I endorse those findings.
75. The Council decided that the period of the loss of education for Y started from June 2023 when Mrs X started to look for a school place. Prior to that, the Council says that she had chosen to home educate. However, I consider that, had the Council not delayed in completing Y’s EHC Plan, it would have started to look for school places from about mid-February 2023 when the draft EHC Plan should have been issued. (Mrs X says the draft EHC Plan should have been issued in 2020 but this period was part of the previous investigation).
76. So, I consider that the start date for the loss of education for Y should be mid-March 2023 when the Council should have issued the final EHC Plan.

Findings regarding Z

77. As with Y, the Council has accepted that it failed to check the home education, that it delayed in completing the annual reviews and delayed in finding a suitable school place. I endorse those findings.
78. But Z is in a different situation to Y because Z was the subject of an EHC Plan. As a result, the Council had a statutory duty to ensure Z’s SEN was being met and appropriate provision made. The Council should have considered whether Education Otherwise Than At School (EOTAS) was the appropriate means to ensure the SEN provision, or it could have told Mrs X about the possibility of having a personal budget. I cannot see evidence that these two options were explored by the Council, and I consider that this is fault.
79. I also consider that the loss of education and provision to meet Z’s SEN starts from mid-January 2023 and not June 2023 as identified by the Council.

Findings affecting both Y and Z

80. I accept the Council’s view that the VSH’s responsibility to previously looked after children is different to the duties for children currently in the care of the Council. But the VSH does have a responsibility to offer advice and assistance and to raise awareness of the vulnerability of previously looked after children.
81. In this case, Mrs X says that she was not told of the VSH and only found out about this position by chance. I consider that the Council should be making sure that parents/carers who take on the responsibility for previously looked after children are told at the outset of the name of the VSH and their role.
82. The fact Mrs X was unaware of the role of the VSH is fault. But I cannot say, had she had the opportunity to approach the VSH earlier, the outcome would have been different.

Mrs X’s employment

83. In respect of Mrs X’s lost employment opportunities, I recognise that she did not anticipate that the children would have such problems settling into a school setting, or that the Council would delay so significantly in finding a school place when the children were ready to re-engage.
84. Mrs X says that, had the Council adhered to the statutory guidance governing SEN, EHC plans and reviews and been more proactive in its duty to promote the educational achievements of the children, a career break of five years would have been more than sufficient to settle the children into school - whatever their difficulties. Mrs X says that she has seen this in respect of Y and the progress made since starting school in September 2024, although the child remains on a reduced timetable.
85. Mrs X says that Z is facing significant difficulties to get closer to where the child would have been had the Council reviewed and finalised the EHC Plan within the statutory timescales. Z too is on a reduced timetable.
86. Mrs X says that dealing with this has become a full-time job. She does not consider this is fair when the Council has failed so significantly to adhere to its statutory duties.
87. To Mrs X’s credit, she and her partner have made Y and Z their top priority and the children will benefit long-term from such a strong commitment to their welfare. Moreover, unforeseen circumstances can occur for all parents and carers which means that they have to make difficult choices.
88. Our guidance on remedies states that we do not normally recommend remedies that reimburse loss of earnings. This is because we are unable to make conclusive findings, on the balance of probabilities, on such matters during our investigations. It is unlikely we could find a clear and causal link between the fault and claimed injustice of lost earnings. There are frequently other factors, personal circumstances and personal choices.
89. I recognise that Mrs X considers she has provided conclusive evidence that the interruption to her career is entirely because of the Council’s failure to provide suitable schooling to both Y and Z. But I remain of the view that there are too many variables, especially given Y’s and Z’s adverse early years, and I cannot conclude that the faults by the Council are the sole reason that Mrs X has been unable to return to work full-time, in the way she did previously. Therefore, it is not appropriate to recommend that the Council reimburses her loss of earnings.

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Action

90. We have a wide statutory discretion in determining the nature and level of any remedy (ss. 30(1A) and 31(2B)-(2BA) of the Local Government Act 1974). In exercising that discretion, we apply our guidance on remedies most recently updated in July 2024.
91. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
92. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
93. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
94. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

95. Mrs X and the post adoption team recognised the importance of Y and Z having time to feel secure in their home setting and hence it was agreed that the children would have time out of a school setting.
96. But having been out of a school setting for some time, it was important that, when Mrs X and the post adoption team considered the time was right for the children to re-engage into a school setting, the Council acted promptly and proactively. As highlighted, my view is that the Council did not do this.
97. I recognise that the Council has accepted fault, and this is to its credit, and it tried to resolve the situation promptly in mid-2024. However, both children have suffered from a significant loss of education and my view is that the Council’s remedy for this falls short of our guidance on remedies.
98. Within one month of the final statement, the Council has agreed the following actions:
• in respect of Y, the child was without appropriate schooling for the period of mid-March 2023 to September 2024. That amounts to five school terms when Y was at a critical stage in the child’s school career. The Council will pay Mrs X £2,400 per lost term, a total of £12,000 (minus any amount the Council has paid), which she can use to Y’s benefit;
• in respect of Z, the child was without appropriate education for the period of January 2023 to September 2024. This amounts to six school terms. The Council will pay Mrs X £2,400 per lost term, a total of £14,400 (minus any amount the Council has paid), which she can use for Z’s benefit;
• in respect of Mrs X’s avoidable distress and frustration caused by the delays, lack of schooling and oversight by the Home Education Team, the Council will make a symbolic payment of £1,500 (£750 per child), minus any monies already paid.

Service improvements

99. Within three months of this decision, the Council will consider the following service improvements. How it achieves these improvements is for the Council to determine:
• the Council says it does not have a standalone policy on alternative education when pupils are unable to attend school for medical or other reasons. But it follows statutory guidance. I recommend the Council considers having a policy to help officers make decisions about when alternative education should be provided;
• the Council should ensure that its SEN officers are aware of the power, in certain circumstances, and with certain schools, that it can direct a school to admit a pupil who has an EHC plan;
• the Council should ensure that it meets the special educational needs of pupils with an EHC Plan, who are out of school, and that it monitors their progress;
• ensure that its Home Education Team checks the suitability of the education of children electively educated; and
• the Council needs to ensure that adoptive parents/other carers taking on the responsibility of previously looked after children are aware of the VSH and how they can contact that officer for advice and information on school matters.
100. In addition, the Council should refer these agreed service improvements to the relevant senior management team to ensure that they are implemented.
101. The Council should provide us with evidence it has complied with the above actions.

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Decision

102. The Council has already found fault causing injustice to the children and to Mrs X and her partner. The Council has agreed an improved remedy for the injustice along with service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman