Summary: Ms Y complained the Council failed to issue an amended Education, Health and Care Plan (EHC Plan) for her son, B, and failed to provide him with suitable education while it found a new placement over a two-year period. The Ombudsman has found fault by the Council causing Ms Y and B injustice. The fault denied Ms Y her appeal rights to the SEND Tribunal and B missed out on a suitable education. To remedy this, the Council has agreed to apologise to Ms Y and B, make them several payments as well as certain service improvements.

The complaint

1. The complainant, who I shall refer to here as Ms Y, complains that the Council:
1. failed to provide her son, B, with suitable educational provision when he stopped attending his school, School G, in May 2019;
2. failed to communicate clearly with Ms Y about the package of outreach support that it could offer B ahead of his planned transition to Special School H, a non-maintained special school, in September 2021;
3. incorrectly said Ms Y refused the package of online learning the Council put in place for B while a place at Special School H became available;
4. failed to issue a final EHC Plan for B within the statutory timeframes so that this was in place in advance of the 2021/22 academic year;
5. failed to provide Ms Y with a school provision list in a timely manner. She says the Council only provided a list of maintained schools, but not possible independent schools; and,
6. failed to provide her with emails that she could access with the electronic devices she owns.
2. Ms Y says B has missed out on full-time education since May 2019. She says B finds it difficult to go out and socialise. Ms Y says his lack of access to a school setting has meant he has had no socialisation opportunities since May 2019.
3. Ms Y says the outreach programme was expected to help address B’s lack of socialisation before attending Special School H and help get him back on track. She says B missed out on this because the Council did not arrange the outreach programme.
4. Ms Y says the delays in the Council finalising B’s EHC Plan have denied her appeal rights to the Special Educational Needs and Disability (SEND) Tribunal.

Back to top

What I have investigated

5. I have investigated Ms Y’s complaint from May 2019 onwards. The final section of this decision explains why I have decided not to investigate earlier events. It also explains why I cannot investigate Ms Y’s complaint about B’s infant school.

Back to top

The Ombudsman’s role and powers

6. 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)
7. If we are satisfied with a council’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)

Back to top

How I considered this complaint

8. I considered the information and documents provided by Ms Y and the Council. I spoke to Ms Y about her complaint.
9. Ms Y and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

What I found

Legal and administrative background

Education, Health and Care Plans: annual review process

11. A child with special educational needs may have an Education, Health and Care Plan (EHC Plan). This sets out the child’s needs and arrangements for meeting them. Councils are responsible for making sure these arrangements are put in place and the child’s needs are met.
12. The SEND Code of Practice (the Code) issued by the Department of Education, provides statutory guidance for councils.
13. The Code says councils must review EHC Plans at least every 12 months and sets out the process they must follow for these annual reviews.
14. Within four weeks of the review meeting, the council must decide whether it will keep the EHC Plan as it is, amend or cease to maintain the plan, and notify the child’s parent. If it needs to amend the plan, the council should start the process of amendment without delay.
15. The council must send the draft amended EHC Plan to the child’s parent or young person and give them at least 15 days to give views and make representations about the content.
16. Following representations from the child’s parent or young person, the council must issue the amended EHC Plan as quickly as possible and within eight weeks of the issue of the draft amended plan. It must also notify the child’s parent of their right to appeal to the Special Educational Needs and Disability Tribunal (the SEND Tribunal) and the time limit for doing so. The SEND Tribunal is responsible for handling appeals against council decisions about special educational needs.

Alternative educational provision

17. Section 19 of the Education Act 1996 says if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, the council must make arrangements to provide suitable education either at school or elsewhere such as home. This is known as alternative provision.
18. The term “suitable education” is defined as efficient education suitable to the child’s age, ability and aptitude and any special educational needs they may have. The education to be arranged by the council should be on a full-time basis unless, in the interests of the child, part-time education is considered more suitable, for reasons of their physical or mental health.
19. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.

Child in Need

20. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
21. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

22. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

Human Rights Act

23. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including: respect for private and family life, and education.
24. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
25. Our remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

What happened

26. Ms Y’s son, B, has an EHC Plan and is a Child in Need. B has special educational needs (SEN) connected with significant and complex emotional needs, oppositional behaviour and mental health difficulties.

May to December 2019

27. At the end of May 2019, Ms Y removed B from his school, School G, because she had safeguarding concerns about the school. At this time, B was in Year 6.
28. On 3 June, School G contacted the Council to ask for an interim annual review. The School said it wanted a change of placement for B due to high levels of violence.
29. A Council officer called Ms Y when arranging the review. The case note shows:

• the Council had told School G to hold an early annual review to decide whether the School was still able to meet B’s needs;
• Ms Y said she did not think School G could meet B’s needs. Ms Y said she would not attend the meeting so the Council asked her to send written contributions and her parental preference on placement; and,
• once the Council had received the review paperwork, it would decide whether a change of placement was needed.

30. Following the call, the Council emailed School G to ask it to confirm in the review paperwork whether it was still able to meet B’s needs. It said it needed evidence B’s needs were not being met before considering a new placement.
31. In mid-June, School G held the review meeting. The record from meetings shows:

• Ms Y did not think the School could keep B safe;
• the School tried to meet with Ms Y to discuss her concerns and take restorative steps towards getting B back to school, but Ms Y asked for email contact only;
• the School had asked the Council’s SEN team for advice; and,
• B was still on the Child & Adolescent Mental Health Services (CAMHS) waitlist.

32. Towards the end of June, Ms Y called the Council to ask for B’s EHC Plan to be sent to a different independent school she wanted B to attend. The Council told her it needed to consider the review paperwork before deciding on this.
33. At the beginning of July, Ms Y chased the Council for an update.
34. Ten days later, a Council officer told Ms Y a change of placement was not possible at this point in the school year.
35. A few days later, Ms Y emailed the Council’s SEN team to confirm the reasons why she thought School G could not meet B’s needs. She explained the safeguarding concerns she had. She asked the Council to consult four other independent schools. She asked the Council for an update on whether it would provide B with therapy given the waiting list for CAMHS was so long.
36. At the beginning of August, Ms Y chased the Council for an update.
37. The Council told Ms Y that it would review B’s case for a change of placement. Ms Y said she was unhappy with the delays and would not send B to School G.
38. At the beginning of September, B was due to begin Year 7.
39. The Council called School G. The School told the Council, regarding the violent incident in May, it did not keep records of individual incidents of unacceptable behaviour from pupils
40. The Council began consulting other placements, including Independent Special School X, a non-maintained school which potentially offered residential places.
41. At the end of September, School G emailed the Council with an update. The Assistant Headteacher said:

• the school arranged an interim review of B’s EHC Plan after Ms Y withdrew B from the School. The School had sent all paperwork to the Council and Ms Y;
• the Council had not updated the School following the School’s two safeguarding visits to B and Ms Y; and
• she asked the Council for further advice or support as it considered B may be a child missing from education, which would require it to take action.

42. A few days later, School G called the Council again to report concerns about B. The School asked for advice about what action to take as B was now a child missing from education. The School was considering contacting the Police.
43. On 1 October, the Council’s Social, Emotional and Mental Health (SEMH) Panel met to discuss B’s placement. The Panel decided:

• one of Ms Y’s parental preferences was able to meet B’s needs, but naming this placement would be incompatible with the efficient education of others;
• it had consulted Independent Special School X, as requested by Ms Y, but its response was not available at the time of the meeting;
• it decided two other schools requested by Ms Y should be consulted; and,
• Ms Y said School G cannot meet B’s needs as the School regularly called her to collect B because of his behaviour. The Council had not been able confirm the frequency of this as the School did not record calls.

44. In November, the Council told School G that B was on the waiting list for a different placement. The Council said it had received the School’s safeguarding referrals, but did not consider B to be a child missing from education as his location was known. The School said it wanted to remove B from its roll.
45. In mid-November, Ms Y chased the Council for an update.
46. A few days later, the Council called Ms Y. Ms Y told the Council her concerns about the school that B was on the waiting list for. The Council asked Ms Y whether she would like home tutoring or online learning for B. Ms Y said she would accept anything so long as it was put in place as soon as possible.
47. On 5 December, the Council called Ms Y to say the SEMH Panel had agreed to home tuition and online learning for B. Ms Y agreed to this as a way forward.

January to December 2020

48. In mid-April, Ms Y chased the Council for an update on home tuition.
49. On 7 May, the Council called Ms Y to say the SEMH Panel had considered B’s case and suggested a different school placement. Ms Y said she was not happy with the suggested school as B posed a flight risk there. Ms Y asked for another school, Independent Special School U.
50. On 19 May, the Council made a referral to an online education provider, Online Academy A. This was for a four-week trial.
51. On 3 July, Ms Y chased the Council. The Council apologised for the delay. It said B’s case was a priority for September. It said it was offering B online learning for the last week of the summer term with Online Academy A.
52. On 8 July, the Council’s SEN team sent out consultations to eight different placements. This included Special School H (an independent school that provides education for children with SEMH difficulties).
53. The Council contacted Online Academy A about one week’s online tuition for B and possibly from September until a placement was secured.
54. In mid-July 2020, the Council arranged one week’s learning with Online Academy A. This provided support in maths, English and science.
55. Special School H offered to assess whether it could meet B’s needs.
56. Ms Y told the Council that B was struggling with the online learning package. She asked the Council to provide her with SEND Tribunal appeal rights.
57. In mid-September, the Council told Special School H to place its assessment on hold until the SEMH Panel had met.
58. On 24 September, the SEMH Panel decided no placements at maintained special schools were available so non-maintained ones should be considered instead.
59. On 1 October, the Council emailed Special School H to carry out the assessment.
60. On 11 November, Special School H told the Council that B was on its waiting list. The Council asked the School to provide a package of support in the meantime.
61. In mid-December, the Council chased Special School H for a start date for B.
62. Special School H replied to say B was still on the waiting list. Special School H said it would offer a package of outreach support.

January to August 2021

63. At the beginning of January, the Council updated Ms Y on Special School H.
64. Ms Y told the Council she was considering legal action.
65. On 19 January, the Council updated B’s Child in Need Plan to say:

• Ms Y was struggling with B’s behaviour. She struggled with her own mental health difficulties, but, while B was not in school, she could not start key psychotherapy sessions;
• its SEN team would send a draft EHC Plan to Ms Y; and,
• B had an appointment with CAMHS in October 2020, but was still on the waiting list. The Plan said a social worker would chase CAMHS.

66. On 10 February, Special School H told Ms Y that COVID-19 was affecting its ability to put the outreach package in place.
67. In March, Ms Y complained to the Council.
68. The Council held a Child in Need meeting for B.
69. At the end of March, the Council replied to Ms Y’s complaint. It said:

• Special School H had confirmed it could meet B’s needs and would like to offer B a place as soon as one became available;
• it did not uphold Ms Y’s complaint about failing to communicate with her about the outreach support. It said Special School H contacted Ms Y about this, but Ms Y had raised concerns about whether B would engage with it;
• it upheld Ms Y’s complaint the Council had failed to send her B’s EHC Plan and list of potential school placements; and,
• it had not contacted Ms Y’s preferred school, Independent Special School X, because of concerns about the school’s Ofsted rating: “requires improvement”.

70. In April, Ms Y asked the Council to escalate her complaint. She said she was most concerned about B needing to urgently return to education.
71. The next day, the Council consulted Independent Special School X.
72. In May, Independent Special School X said it could not meet B’s needs.
73. On 11 May, the Council sent Ms Y its stage three complaint response. It said:

• it partially upheld Ms Y’s complaint. It accepted delays in communication between School G and the Council’s SEN Team over the year contributed to B’s extended period of absence from education;
• between May 2019 and July 2020, the Council consulted alternative placements for B. However, none of the schools were able to offer B a place;
• its SEN team were concerned B was not receiving a formal education;
• it provided a list of the 12 schools (both independent and maintained schools) the Council had consulted. It said the schools had provided responses of either: no spaces available, B would not fall within the correct age group, school had concerns or no response; and,
• it apologised for the delays in consulting Independent Special School X.

74. At the end of May, Ms Y complained to the Ombudsman.
75. The same day, the Council received a call from CAMHS who said B was at risk of harm and a safety plan was put in place.
76. Two days later, the Council chased Special School H for an update on spaces. It contacted a local charity that provided services aimed at building trusting relationships between young people and members of the community.
77. Ms Y chased the Council for an update and the support it could provide.
78. On 10 June, the Council wrote to Ms Y to confirm Special School H had offered B a place from September. It had asked Special School H to hold an annual review.
79. Ms Y asked what provision the Council would secure to help B transition to school. She asked the Council to consider providing this over the summer break.
80. The Council told Ms Y it had agreed the local charity would provide three mornings per week to help with B’s transition. It said transport would be provided.
81. On 18 June, B started sessions with the local charity.
82. In August, Ms Y moved homes and began the EHC Plan process for B with a new Council.

Analysis – was there fault by the Council causing injustice?

Educational provision arranged by the Council

83. Ms Y complains the Council:

• failed to provide B with suitable educational provision when he stopped attending School G;
• failed to communicate about the package of outreach support offered; and,
• said she refused Special School H’s outreach package.

(parts a to c of the complaint).

84. In response to my questions, the Council has accepted it was at fault for not providing suitable alternative education for B when it became aware he was not attending school and unable to access fulltime education. In my view, the Council has appropriately identified it was at fault here. This is based on the following:

• When the Council first became aware in May 2019 that Ms Y had withdrawn B from School G and the School confirmed in June the placement had broken-down, I would have expected to see clear records of the Council considering whether the School was making reasonable efforts to get B back to school and whether the Council’s duties under the Education Act 1996 had been triggered. The first record of the Council considering this occurred September 2019, when it told School G it would call Ms Y to explain B must go back to school or engage with the home learning. This delay is fault.
• Under the Act, councils must identify children not receiving an education. If the council has reason to suspect a child is not receiving education, it should consider whether it needs to take certain action based on the powers contained in the Act. This includes allowing councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education and issuing a School Attendance Order (SAO) where parents fail to satisfy them. Alternatively, Section 19 states the Council should have considered whether it instead had to provide suitable educational provision for B if it considered his absence was because of illness, exclusion or otherwise. The Council’s failure to consider its duties under the Act caused B to miss out on suitable education;
• the Council accepted it should have arranged suitable education - either at school or elsewhere such as home - as soon as it was aware B was not attending School G. The Council should have arranged this when it became clear B’s absence would last more than 15 days. In my view, when the Council received B’s annual review paperwork in mid-June 2019, the Council became aware that B had likely been absent for 15 days and this would continue. By September, the Council was aware School G was sending work home, but Ms Y was not returning it, meaning it was likely B was not receiving any suitable education.
• It took until December 2019 for the Council to confirm to Ms Y that its SEMH Panel had agreed to home tuition and online learning. This led to B receiving one week’s online tuition in June 2020 with Online Academy A, but nothing further because B was struggling to engage with the tuition. This was arranged a year after B started being absent from school. This delay is fault. Based on the evidence I have seen, from June 2019 to the end of the summer term 2021, the Council failed to arrange suitable education for B and clearly demonstrate how it had satisfied itself the week’s worth of education B received was suitable to his age, ability and aptitude and his SEN.
• Given the length of time the Council failed to arrange alternative provision, I find the Council failed to have due regard to B’s right to an education (Article 2, the First Protocol, Human Rights Act 1998).
• the EHC Plan in place for B from February 2019 provides details of the special educational provision (SEP) the Council should have arranged for B. The SEP was largely aimed at supporting and managing B’s SEMH needs. This included: adult support with school tasks to support his independence and manage stress; adapting tasks to provide a visual structure; emotional support at the beginning and end of the day; an educational setting with staff skilled and experienced in teaching emotionally vulnerable children; a safe space B could retreat to; consistent structure and routine; and, carefully structured and supervised peer activities for building secure friendships.
• Based on the evidence I have seen, the first time the Council considered arranging SEP for B was when it asked Special School H to arrange an outreach package in November 2020. This package of support fell through. There is some dispute over whether Ms Y declined this package. Ms Y told the school she was concerned about B engaging in the package and the School had said a place was not yet available meaning it was unclear to Ms Y how beneficial the package would be. This does not amount to a refusal. Rather, Ms Y was considering whether it was in B’s interests to pursue it if the placement fell through again;
• In any case, it was the Council’s responsibility, not Ms Y’s or Special School H’s, to make sure B received suitable SEP and, when this fell through, to promptly arrange alternative provision. It was not until May 2021, after CAMHS contacted the Council with safety concerns about B, that the Council looked into other provision with a local charity. It is my understanding that B received five weeks of support with the local charity between June and July 2021. By this point, B had been without any SEP for two years. This delay and lack of provision caused B significant distress and uncertainty.
• Throughout this period, B became socially isolated from his peers and the support from staff the Council should have arranged to support his SEMH. I find this meant the Council failed to have due regard to its duties under Article 8 of the Human Right Act 1998 to respect B’s right to respect for his private and family life. In my view, if the Council had promptly arranged B’s SEP while looking into alternate placements, then it would have been able to decide how it could promote good family and other relationships for B while he was at home, and support his right to participate in social activities.

85. Based on the above, I propose to uphold parts a to c of Ms Y’s complaint.
86. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child. In this case, I have taken into consideration the fact B was at a key stage of his education and about to move to secondary school when Ms Y withdrew him from school.
87. I consider the payment for the period from mid-June to end of July 2019, September 2019 to March 2020 and September 2020 to end of June 2021 should be at the higher end of the scale. This is because the Council did not make any educational provision at all for B during this time and it was aware Ms Y was not returning work to School G.
88. For the period of one month from the end of June to end of July 2021, I consider the payment should be slightly lower because the Council did make some SEP at a local charity.
89. The Council told me that COVID-19 affected its ability to arrange alternative provision for B between November 2019 and March 2021. The Coronavirus Act 2020 temporarily removed the Council’s absolute duty to make the SEP in an EHC Plan, to a duty to use ‘reasonable endeavours’. The Ombudsman considers 1 May 2020 as the relevant date this measure applied from. However, in the period before this (23 March to 1 May), our general view is we would be unlikely to criticise a council for not arranging the full SEP in an EHC Plan due to the exceptional circumstances at the time and the requirement for people to stay home wherever possible. From 31 July 2020, the Council’s absolute duty to arrange SEP was reinstated. I, therefore, do not find the Council at fault for not providing a full package of suitable alternative provision, including SEP, during this period. However, based on the evidence I have seen, the Council failed to carry out a clear assessment of whether it could make the SEP in B’s Plan and, if not, consider whether there were alternative means of achieving the same aims. I find this caused B uncertainty about whether he would receive any SEP, however limited, during this time.

The Council’s review of B’s Education, Health and Care Plan

90. In response to my questions, the Council accepted it failed to complete B’s annual review following the review meeting in June 2019.
91. The Council did not decide within four weeks of the annual review whether it would keep, amend or cease to maintain B’s plan. In mid-July, the Council called Ms Y to say that, at this point in the school year, a change of placement was not possible. This meant the Council expected B to return to School G from September. The officer said there were no places available at the independent school she preferred and, in any case, the Council considered School G could meet B’s needs so would not consider a change of placement. The Council did not put this decision in writing to Ms Y and notify her of her SEND Tribunal rights. This is fault. Ms Y lost the opportunity to appeal to the SEND Tribunal.
92. The Council started the process of looking for a new placement for B in September 2019, three months after the annual review. This delay caused avoidable uncertainty for Ms Y about whether the Council would agree to her requested changes to the plan.
93. We do not consider the time taken – from September 2019 to June 2021 - to find a place at a special school for B was the Council’s fault. By November 2019, B was on a waitlist for a place at an independent school. When Ms Y told the Council her concerns about the school, the Council began consulting other schools. The evidence I have seen shows the Council contacted a number of special schools, including Ms Y’s preferred choices but was told they either could not meet B’s needs or did not have a place available. The Council made efforts to consult schools concurrently, when possible, and chase up outstanding responses. Between November 2020 to June 2021, B was on the waitlist for a place at Special School H. In our view, the Council was not in a position to make a school accept B if it did not have the capacity to do so.
94. But, in my view, if the Council could not name a particular school, the Council should have completed the early review process and issued a final amended Plan naming the type of school. When it eventually secured a place at Special School H, the Council should have completed a further review and issued a final amended Plan to Ms Y. This would have given Ms Y her appeal rights.
95. By failing to issue an amended Plan while it made efforts to secure a school place for B, the Council left Ms Y and B in limbo. The injustice caused by the delay in finalising the plan was the loss of appeal rights for Ms Y. She was caused avoidable time and trouble chasing the Council about its completion.
96. The Council also the missed the opportunity to make alternative educational provision for B until it was able to name a particular school. It failed to complete the annual review process for the 2020/21 academic year meaning B missed out on updated input and advice from professionals, including social care. On balance, this likely contributed to the Council failing to chase CAMHS for support for B and contributed to delays in his waiting time for this. When B moved to a different authority area, the new Council did not have an up to date understanding of B’s needs and how to meet them.
97. Ms Y complains during this time, the Council failed to provide her with a school provision list in a timely manner (part e of the complaint). I propose to uphold Ms Y’s complaint. In the Council’s stage two response it accepted it had failed to send her B’s EHC Plan and a list of potential school placements. The Council apologised and said it would send these by 26 March 2021.
98. In its stage three response in May 2021, the Council provided a list of the 12 schools (both independent and maintained schools) the Council had consulted. I find the delay in sending Ms Y a clear breakdown of the independent and maintained schools, and reasons the placements could not go ahead, amounts to fault. This caused Ms Y further uncertainty.

Provision of accessible emails

99. In October 2020, March and February 2021, Ms Y asked the Council to send correspondence in a format she could open on her phone as she did not have access to a PC or laptop (part f of the compliant).
100. The Council told me certain encrypted emails were not accessible on Ms Y’s phone. It encrypts some emails to comply with its data protection policy. This is a decision the Council was entitled to make. I do not find it at fault here.
101. It would have been good practice for the Council to have considered whether there were other ways Ms Y could access encrypted correspondence, such as sending letters by post when there was a technological barrier for Ms Y. However, I do not find this amounts to fault causing injustice in this case. The Council’s records show Ms Y was able to respond to all key emails sent by its SEN team.

Back to top

Agreed action

102. In May 2021, the Council wrote to Ms Y to say: it had offered her a time and trouble payment of £150 for pursuing her complaint about B’s EHC Plan. However, I do not find this sufficiently remedies the fault causing injustice.
103. Within four weeks of my final decision, the Council has agreed to:

• apologise in writing to B and Ms Y for the fault and injustice identified above in relation to parts a to e of Ms Y’s complaint; and
• make Ms Y a payment of £1000 to acknowledge the significant distress, uncertainty and time and trouble she was put chasing the Council for her SEND appeal rights, which were not provided, and suitable educational provision for B over two years. This is instead of the £150 offered.

104. Within four weeks of my final decision, the Council has agreed to make the following payments to Ms Y, which are to be used for the benefit of B’s education;

• make a payment to Ms Y of £600 for each school month the Council did not make any educational provision for B. This covers the periods from mid-June to end of July 2019 (one and a half school months); September 2019 to March 2020 (six school months) and September 2020 to end of June 2021 (nine school months), making a total of £9,900;
• £500 for the period covering the end of June to end of July 2021 as the Council provided some SEP, but no formal education for B; and,
• £400 for the end of March to end of July 2020 due to the distress and uncertainty caused to B about whether he would receive any SEP.

105. These recommendations are in line with the Ombudsman’s published guidance on remedies.
106. We have recently issued a report and several decisions recommending the Council makes key service improvements in this area, including reminding relevant staff of when its section 19 duty might be triggered. I have considered these and do not propose duplicating recommendations around service improvements the Council has already agreed to. These need time to take effect. I have limited my service improvement recommendations to the following:
107. Within three months of my final decision, the Council has agreed to:

• circulate a reminder to relevant staff about the need to promptly decide whether it has a duty to secure alternative provision (the section 19 duty) or consider taking enforcement action (pursuant to its section 426A duty) under the Education Act 1996. This covers situations when it comes to the Council’s attention that a child may not be receiving suitable education; and
• share the Ombudsman’s decision with relevant staff.

108. The Ombudsman will need to see evidence that these actions have been completed.

Back to top

Final decision

109. I have completed my investigation.
110. I have upheld parts a to e of the complaint. This is because there was fault by the Council causing Ms Y and B injustice. The Council has agreed to the above recommendations, which are suitable ways for the Council to remedy this.
111. I have not upheld part f of Ms Y’s complaint. This is because there was no fault by the Council causing injustice.

Back to top

Parts of the complaint that I did not investigate

112. Ms Y complained to the Ombudsman about the Council’s handling of a section 47 enquiry under the Children Act 1989, which took place following reports of B’s infant school allegedly using restraint techniques in 2016.
113. I cannot investigate any aspect of Ms Y’s complaint that concerns what happened in B’s infant school and the school’s action. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
114. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) Ms Y has explained why she did not complain sooner about the Council’s actions in 2016. I have considered her reasons.
115. In Ms Y’s case, I think that she could have complained sooner if she had wished to pursue matters from 2016. I have, therefore, decided an investigation that starts from May 2019 is fair and can be justified.

Back to top

Investigator's decision on behalf of the Ombudsman