Summary: Mrs X complained the Council did not arrange alternative provision for her son when she removed him from school. There is no fault with how the Council handled Mrs X’s son’s case. We have completed our investigation.

The complaint

1. Mrs X complained the Council did not provide alternative education provision for her son (Y) when he was out of school for 16 months following a safeguarding issue.
2. She said the Council failed to find another school placement and Y did not receive any of the therapies required by his EHC Plan.
3. She said the Council failed to respond to her emails and phone calls which almost resulted in Y missing out on a school offer.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. I have considered Mrs X’s complaint and have spoken to her about it.
7. I have also considered the Council’s response to Mrs X and to my enquiries.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation and guidance

Special Education Need

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Alternative provision

11. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. We refer to this as section 19 or alternative education provision.
12. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
13. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with SEN. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

What happened

14. In October 2020, Mrs X made a safeguarding complaint against her son’s (Y’s) school (School A). The Council provided the school with advice and guidance and the school investigated the matter.
15. Mrs X removed Y from the school and requested the Council carried out an emergency annual review of Y’s EHC Plan to discuss the change of placement.
16. In November, the Council carried out assessments to inform the annual review. In January 2021, an emergency annual review meeting was held.
17. The Council offered alternative provision for Y but Mrs X declined it.
18. In the early part of 2021, the Council consulted schools to find an alternative placement for Y. All the schools that responded stated they were either full or could not meet Y’s needs.
19. In May 2021, School A wrote to the Council to explain why it could no longer meet Y’s needs. No other school had offered Y a place. Later that month, the Council issued Y’s final amended EHC Plan to open up the parents right of appeal. The parents did not appeal as they did not have a preferred school to name at this stage.
20. The Council continued to consult alternative schools for Y.
21. In September, Y received speech and language sessions.
22. In November, the Council requested that School A carried out an annual review due no placement being available or suitable for Y. School A offered a personal timetable for Y and for him to return to school. Mrs X said she did not want Y to return to School A as the member of staff subject to her safeguarding concern was still present.
23. In December, Y’s annual review took place. The Council continued to consult potential schools. In January 2022, the Council began to reconsult schools which had previously been full.
24. In February, the Council contacted School B to ask that Y be added to their waiting list. School B said it might have a place subject to an assessment of Y. The school offered Y a place in February 2022. The Council and Y’s parents agreed the placement. The Council issued the final amended EHC Plan, naming School B in March 2022 and Y began at the school in April 2022.

My findings

Alternative provision

25. When Mrs X first removed Y from School A in November 2020, the Council offered Y temporary alternative provision. Mrs X deemed the offer to be unsuitable on the basis it was too far from home. The Council made additional offers in February and March 2021 which Mrs X declined.
26. In addition, School A offered an individual timetable for Y for him to return after the school had completed its safeguarding investigation. Mrs X rejected this offer on the basis that the member of staff was still present at the school. School A had investigated the matter. While it recognised mistakes were made, the member of staff was not deemed to be a risk. Policies and methods were put in place to avoid similar mistakes happening in the future.
27. Both the Council and School A offered suitable alternative provision for Y, but Mrs X turned it down. There is no fault.

School placement

28. The Council followed the correct procedure for identifying a suitable school placement for Y. It consulted numerous schools and reconsulted those which initially had no capacity. It could have added Y’s name to School B’s waiting list sooner but there is no evidence to suggest a place would have become available sooner. There is no fault.

Failure to respond to communications

29. Mrs X said the Council did not respond to her calls and emails in a timely manner when School B offered a place for Y. The offer letter was received on 14 February 2022 and the Council confirmed it would accept it on 6 March 2022. Although this was a three week time period, it included half term when School B would have been closed. This is not an unacceptable period of time and although it caused Mrs X frustration, it did not delay Y’s start date significantly. There is no fault.

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Final decision

30. I have completed my investigation. There is no fault with how the Council handled Y’s case.

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Investigator's decision on behalf of the Ombudsman