Summary: Mrs X complained about the Councils poor communication and failure to meet key timescales for Y to transfer onto the next school. We find the Council at fault for failing to keep Mrs X updated about Y’s education and placement. This caused Mrs X distress and uncertainty. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained about the Council’s poor communication and failure to meet key timescales for Y’s transition onto the next school.
2. She says this has caused her frustration and Y anxiety.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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)
6. 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)
7. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. Mrs X has appealed to the SEND Tribunal about the placement named in section I of Y’s EHC Plan. Therefore, I have not investigated the Council’s decision to request that school A was named or its decision to not fund school B.
9. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started. I have investigated Mrs X’s complaint about the poor communication and delays with the EHC process up until March 2024 when her appeal right started.

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How I considered this complaint

10. I considered evidence provided by Mrs X and Council as well as relevant law, policy and guidance.
11. Mrs 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

Relevant law and legislation

Foster care

12. Where a child has been placed in foster care, the council becomes the corporate parent. The council has a collective responsibility for all its services and partners to provide the best possible care and safeguarding for the children it looks after. The council is responsible for making decisions in the child’s best interest, and this is usually done mainly by the child’s social worker.

Education of looked after child

13. The statutory guidance ‘Promoting the Education of Looked After Children and Previously Looked After Children’, states councils have a duty to safeguard and promote the welfare of a child it looks after with a particular duty to promote the child’s educational achievement.

EHC Plans

14. In education law, the term ‘parent’ includes:
• those with parental responsibility of a child; also
• people who have care of a child, for example, a foster carer.
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. 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.

What happened

17. Y lives with their foster carer, Mrs X, outside the Council’s area, in a city (“Council Z”). Y has special educational needs (SEN) that require special educational provision. As Y is a looked after child, the Council is financially responsible for this provision, while Council Z is responsible for maintaining their EHC Plan.
18. Y was in their final year of middle school and needed a new school placement for September 2024. To support this process Y’s annual review was brought forward, and a new educational psychology assessment was arranged.
19. Over the following months, Mrs X visited several schools, and Council Z sent consultations to different schools to determine their suitability for Y.
20. In August, school A responded that it had no available place for the upcoming academic year.
21. In October, Mrs X and Y’s social worker visited school B. The social worker shared positive feedback with the Council and requested a visit to school C. The following week, Y visited school B, which later offered a provisional place, subject to the Council agreeing to fund the placement. The Council was informed of the offer and associated costs.
22. In November, Mrs X visited school C and found it unsuitable for Y.
23. In December, Council Z consulted with school D to determine suitability.
24. In January 2024, school D confirmed that it could not meet Y’s needs. Council Z then informed the Council that consultations had also been sent to schools A, B, E, and F. Of these, only school B was both suitable and had availability. However, since the Council was responsible for funding, it needed to approve the placement.
25. In February, Council Z followed up with the Council regarding a funding decision. The Council, in turn, requested an update from its SEN team. The Council’s panel ultimately declined to fund school B due to the cost of the placement. It said it would thoroughly review the case before determining the next steps.
26. In March, Y’s final amended EHC Plan was issued. Since a school placement had not been agreed upon, section I only specified the type of provision, allowing Mrs X to exercise her right of appeal.
27. Later in March, the Council asked for school A to be named in Y’s EHC Plan. It explained that while school A initially reported having no available space, it had not demonstrated that admitting Y would negatively impact the education of other students. The Council also noted that under Section 9 of the Education Act 1996, a child should be educated in line with parental wishes unless doing so would result in unreasonable public expenditure. The Council deemed School B’s cost incompatible with its duty to avoid such expenditure.
28. In April, concerns were raised that school A would no longer be suitable due to upcoming changes in its offer. That same month, Mrs X appealed to the SEND Tribunal, challenging the Council’s decision not to fund school B as Y’s placement.
29. In July, Mrs X complained to the Council about delays and poor communication.
30. Later that month, the Council responded, apologising for the delays and poor communication. However, it said the matter had since been resolved, as funding had now been approved for Y to attend school B from September.
31. Mrs X escalated her complaint, pointing out that the Council’s SEN team had not received confirmation of the funding, Y’s EHC Plan had not been updated to name school A, and no transition meetings had been arranged.
32. In September, the Council issued its final response. It acknowledged that in July, confirmation of the funding had not been clarified. However, it said that funding was now secured and that it was Council Z’s responsibility to update the EHC Plan.

My findings

Communication

33. The Council has acknowledged its poor communication in its stage one complaint response and apologised. As Y’s foster carer, Mrs X should have been included in all correspondence about Y’s education and school placement. The law defines her as a parent for these purposes.
34. Records show that between October 2023 and March 2024, the Council failed to provide Mrs X with sufficient updates. Additionally, there is no evidence that the Council informed her of its decision not to fund school B. The Council’s poor communication is fault and caused Mrs X avoidable distress and uncertainty.
35. The Council’s stage one complaint response also contained unconfirmed information. This caused Mrs X further distress and uncertainty.

School placement

36. The Council was aware of School B’s offer and associated costs in October 2023. However, Council Z also wanted to explore school C and school D.
37. By November, it was clear that school C was unsuitable, and by January school D confirmed that it could not meet Y’s needs. The Council then considered funding school B’s placement in February but declined due to cost concerns.
38. After reviewing the evidence and correspondence between both councils, I do not find that the Council caused a delay in decision making. It was waiting for Council Z to confirm which schools should be considered, which was only finalised in January 2024.

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Action

39. To remedy the injustice caused by the above fault, within four weeks of the date of my final decision, the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an effective apology; and
• pay Mrs X £200 to recognise the distress and uncertainty caused by the Council’s poor communication.
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 has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman