Summary: Ms X complained about the Council’s failure to provide her son, Child Y, with suitable education for over a year, including support for his special educational needs. She also complained about delay and how the Council managed the case. We have found the Council to be at fault. To remedy the injustice, the Council has agreed to apologise, make a payment to Ms X and review its practices.

The complaint

1. Ms X complains the Council failed to provide a suitable education and support for his special educational needs for her son, Child Y, since May 2021. In particular, she complains about:
1. failure to secure a school place for Child Y;
2. failure to provide adequate alternative education and Special Educational Needs (SEN) support;
3. delay in the Educational Health and Care Plan (EHCP) process;
4. the Council’s placement panel; and
5. poor communication and case handling by Council officers.
2. Ms X says this has had a detrimental impact on Child Y’s educational development and overall wellbeing. She has also suffered distress due to his being out of school for such a long time and the poor service she has received from the Council throughout.

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What I have and have not investigated

3. I have investigated events from April 2021 to September 2022.
4. Certain decisions related to SEN have a right of appeal to the Special Educational Needs and Disability Tribunal (the Tribunal).
5. Where a parent has appealed to the Tribunal, we cannot investigate Council actions between the date the appeal right arose until the appeal is completed, where it is linked to the matters appealed. So, in these circumstances, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for any injustice during that period.
6. In the context of this complaint, Ms X first had the opportunity to appeal to the Tribunal in May 2021, but did not do so because the Council was still consulting with potential placements. In my view, Ms X had no reason to think this would not be successful, particularly as two schools said they could meet Child Y’s needs and had a place available for him. For this reason, I would not expect Ms X to have used her appeal right at this time.
7. Ms X used her right of appeal regarding the EHCP issued by the Council in September 2022. This places part of Ms X’s complaint outside the Ombudsman’s jurisdiction. For this reason, I am unable to investigate her complaint about the Council’s failure to offer suitable educational provision from September 2022 onwards.

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The Ombudsman’s role and powers

8. 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)
9. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as “the Tribunal” in this decision statement.
11. 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.
12. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended
13. 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

14. I spoke to Ms X and considered the information she provided.
15. I made enquiries of the Council and considered its response and case records.
16. I reviewed the relevant law and guidance.
17. Ms X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

18. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
19. We can consider the other sections of an EHCP. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider.
20. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Annual Reviews

21. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils. The guidance says:

• councils should arrange for EHCPs to be reviewed at least every 12 months;
• if a child attends a school, a council can ask the school to carry out the review;
• within two weeks of the review meeting, the organisation arranging the review must prepare and send out a report setting out any amendments to the EHCP it is recommending;
• within four weeks of the review meeting, a council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision;
• if the plan needs to be amended, a council should start the process of amendment without delay; and
• a council must send the draft EHCP to the child’s parent and give them at least 15 days to give views and make representations on the content.

22. When changes are suggested to the draft EHCP and agreed by the Council, it should amend the draft plan and issue the final EHCP as quickly as possible, and within eight weeks of the date the Council send the proposed amendments to the parents.
23. Where a Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHCP.
24. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Alternative Provision

25. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19).
26. The provision can be at a school or elsewhere, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
27. Full time education is usually between 22 and 25 hours per week. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
28. We have issued a Focus Report on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (“Out of school… out of sight? Ensuring children out of school a get a good education”, published in 2022).
29. Within the Focus Report we made recommendations that councils should:

• consider the individual circumstances of each case and be aware that councils may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases; and
• where councils arrange for schools to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure their duties are properly fulfilled.

What happened

30. The chronology below sets out the relevant key events but is not intended to describe everything that happened.
31. Child Y is a young person with SEN under the age of 16. He attended a mainstream school (School A). In April 2021, Child Y was excluded from School A following a serious incident. At this time, the Council was in the process of finalising Child Y's EHCP.
32. Alternative provision was arranged by School A on behalf of the Council. Child Y was not permanently excluded and remained on the roll of School A.
33. In May 2021, the Council issued a final EHCP. This named School A at Section I. Prior to his exclusion, School A had said it could meet Child’s Y’s needs. Shortly after the incident that led to the exclusion, School A told the Council it was no longer able to meet his needs and felt a special school was more appropriate.
34. When the EHCP was issued, Ms X was advised of her right to appeal to the Tribunal. Ms X says she did not do so because she was told the Council was trying to secure a special school place for Child Y.
35. The Council consulted three special schools. Two schools (including School B) said they could meet his needs. Ms X was keen for Child Y to attend School B. This proposal was presented to the Council’s placement panel (the Panel). The Panel decided there was insufficient evidence that a specialist placement was needed, and School A should work towards reintegration. The Council said it would seek advice from relevant professionals about Child Y’s needs. This evidence would inform the decision about Child Y’s future education as part of the Annual Review process.
36. An Annual Review meeting was held on 11 November 2021. It was decided Child Y could no longer be reintegrated into mainstream school and special schools should be consulted. The Council issued a notice to amend Child Y’s EHCP on 7 January 2022.
37. Three special schools were immediately consulted, including School B. In April 2022. All three schools said they could not meet his needs.
38. Three further schools were consulted in May and June 2022, all said they could not meet Child Y’s needs.
39. Concerned about the length of time Child Y was out of school, the unsuitability of the alternative provision and the impact it was having on them both, Ms X complained to the Council in May 2022. She said the Panel went against the opinion of those involved. She had expected her SEN caseworker to challenge this decision, but he did not do so. Nor was she given the opportunity to appeal.
40. In response, the Council said:

• the Panel decided Child Y’s needs could be met in a mainstream school, and School A needed to consider his reintegration. This was supported by his EHCP;
• Ms X was advised of her right to appeal the decision of the Panel in May 2021; and
• action would be taken to review Child Y’s alternative provision.

41. Ms X complained again because she did not consider this response addressed the issues she had raised, including her concern that the Panel disregarded the fact School A had indicated it could no longer meet Child Y’s needs before the final EHCP was issued in May 2021.
42. In response, the Council said:

• the Panel was aware of the position of School A when it made its decision;
• it had met with School A to discuss alternative provision and was exploring other options; and
• a special school place had been agreed, but the school in question was full.

43. On this basis, the Council did not uphold her complaint.
44. The Council issued a final ECHP in September 2022. This named School A at Section I. Ms X lodged an appeal with the Tribunal. She also brought her complaint to the Ombudsman.

Analysis

45. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within a reasonable time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
46. With this context in mind, I will consider Ms X’s separate areas of complaint below.

The Placement Panel

47. Child Y was excluded from School A in April 2021 and told the Council it was unable to meet his needs the following month. By this time, his final EHCP had been issued and the Council had already started the process of consulting special schools. Despite this, the Council decided in late June 2021 that there was not enough evidence to support a special school placement.
48. I have several concerns about what happened here and afterwards.

• There are no minutes from the Panel meeting, just a brief summary of the outcome. This fails to explain, in meaningful detail, how the Council arrived at its decision. I would expect to see this, particularly as the decision was contrary to the advice of those involved at the time and the consultation with non-mainstream schools.
• In its complaint response, the Council said Ms X, “had the option to appeal the Panel decision in May 2021”. This is incorrect. The Panel did not take place until late June 2021 and the Council confirmed in its response to my enquiries that Ms X did not have the right to appeal the Panel decision. Instead, it had incorrectly referred to her appeal right to the Tribunal that had already expired by the time she was notified of the Panel’s decision in mid-July 2021.
• As the Council had decided at that point reintegration at School A (or another mainstream school) was appropriate, it should have taken purposeful action to achieve this. The statutory guidance makes clear that reintegration plans should be used when the child’s re-attendance is ‘anticipated’. It is clear from the records that Child Y’s reintergration at School A was not attempted at any point. In fact, School A had made its position clear that it did want him to return. In this situation, I would expect to see some evidence of the Council trying to find an alternative mainstream setting as it believed this was appropriate.
• The Council failed to manage Ms X’s expectations when it consulted with three special schools in June 2021. The Council should have been clear that it was just exploring options at that stage. As a result, Ms X had her expectations unnecessarily raised that Child Y would be supported to move to a special school.

49. These concerns lead me to conclude the Council acted with fault that caused Ms X avoidable distress and frustration that requires a remedy.
50. While I find there was poor communication and decision making, the decision by the Panel that Child Y’s needs could be met at a mainstream school was one it was entitled to make. The Ombudsman is not an appeal body and does not have the jurisdiction to question this type of professional judgement. Only the Tribunal can do so.

Failure to secure a suitable school placement

51. As soon as it has been decided a new school place is needed, the Ombudsman expects councils to start that process without delay. In this case, the Council started the consultation process once it had issued its notice to amend Child Y’s EHCP in January 2022. Because this notice was issued late, this in turn delayed the start of the consultation process. This delay was fault.
52. The case records show seven consultations (including the three schools previously consulted) took place between January and September 2022, all of which were unsuccessful. Either because the school was full or could not meet Child Y’s needs.
53. I cannot say the Council should have consulted with more schools during this time. I accept special school places within a reasonable traveling distance are limited, and there is no evidence the Council failed to consult with any suitable schools.
54. Even if the schools had been consulted earlier, I cannot say with any certainty that a suitable place would have been secured for Child Y. Only one school said it could meet Child Y’s need but did not have a place available.
55. For these reasons, I have not found the failure to secure a special school place for Child Y was due to fault by the Council.

Delay in the EHCP process

56. The meeting to review Child Y’s EHCP took place on 11 November 2021. I accept the Council needed to obtain more information about Child Y in order to inform its decision about his future education this will have taken time to do so. For this reason, I have not found fault with the timing of this Annual Review.
57. The Council was required to issue a decision about whether it would amend Child Y’s EHCP by 9 December 2021. It took a month longer than it should have done. Had the Council complied with the law, the final EHCP would have been issued on 4 March 2022. It was not issued until September 2022, six months later than it should have taken.
58. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s significant failure to meet the required timeframes here amounts to fault and caused a period of avoidable uncertainty for both Ms X and Child Y.
59. Because the Council failed to issue Child Y’s final amended EHCP in a timely manner, Ms X lost an earlier opportunity to appeal to the Tribunal regarding the decision to name School A at Section I.
60. In addition to this, the Council’s failure to issue a final EHCP within the statutory timescales left Child Y in a vulnerable position because no legally binding written document of what was agreed at the annual review meeting existed.

Failure to provide suitable alternative provision and SEN support

61. Child Y has been without a school place since April 2021.
62. Mrs X appealed to the Tribunal in September 2022 about the placement named in the EHCP. The courts have established that if someone has lodged an appeal to a Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
63. It is the Council’s position that School A remained responsible for arranging his education via external providers. School A did so by funding two separate alternative learning placements over five days per week. They offered a mixture of activity and academic learning. Ms X has said that although Child Y, after a period of adjustment, enjoyed some of the sessions, he was not provided a proper education or support for his SEN, rather it was just somewhere for him to go and “keep him off the streets”. One provider said it could no longer support Child Y in May 2022, and from that time he received between one and a half and two days support from the predominantly activity-based provider.
64. I have been provided with some reports completed by the alternative providers. Within these, reference is made to progress being monitored against his SEN needs specified in his EHCP. They also show Child Y spent a significant amount of time engaged in outdoor activities, as opposed to academic study.
65. The reports show the focus was often on rebuilding Child Y’s trust and confidence as well as managing his behaviour. I do not consider this was an unreasonable approach in this case. The service providers were specialists in supporting children who were out of school for a variety of reasons, including exclusions.
66. Up to May 2022, Child Y was provided with alternative provision, over five days a week and on a one-to-one basis. There were recorded issues with Child Y’s engagement with academic study.
67. Although the records I have seen show Child Y was being provided with some alternative provision, I agree with Ms X that it was not equivalent to the full-time education that he would have been receiving had he been at school.
68. The amount of support decreased significantly to two days in May 2022.
69. Around this time, the Council acknowledged Child Y was “receiving minimal alternative provision support”. It committed to work with School A as a matter of urgency to look at other alternatives. In its stage two response, the Council explained this work was ongoing “but was not in the control of the service”.
70. A meeting between the Council and School A took place in June 2022 to discuss alternative provision. The Council expected School A to resolve this issue. I have seen no evidence of a discussion at any time of what work was taking place to fulfil the requirements of the EHCP.
71. This appears to show the Council misunderstood its legal duties to arrange suitable education in these circumstances. While it was permissible for School A to make attempts to source alternative provision on the Council’s behalf, the Council cannot delegate its legal duty to arrange a suitable education for Child Y to School A. This was fault.
72. I must also consider whether Child Y received support for his SEN, as set out in his EHCP, since he stopped attending School A. Generally, it would be the responsibility of the school to provide support specified in an ECHP.
73. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHCP. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHCP is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

74. The only evidence I have seen of Child Y’s progress by reference to his specified outcomes was at the Annual Review in November 2021. Of his nine specified outcomes, none were being achieved. I have no evidence of any action being taken either by School A or the Council to address this. This should have happened and failure to do so is fault.
75. This was not a standard set of circumstances. Child Y was on the roll of School A in name only and from the evidence I have seen, had little involvement in Child Y’s day to day education. In law, the Council has responsibility for ensuring Child Y received the support set out in his plan. Our focus report makes it clear that councils should not assume that a school shoulders the entire responsibility for a child’s education. The Council had good reason to believe from May 2021 onwards that Child Y was not receiving all the provision in his plan. This was a breach of the Council’s duty to secure that provision and was fault.
76. Overall, I am satisfied the Council failed to ensure Child Y received a suitable education, including support for his SEN between May 2021 and September 2022. I recognise he was provided with some support, and this is reflected in the remedy I have set out below.

Poor communication and case handling

77. Ms X has made it clear she feels let down by the excessive delay and lack of communication throughout the process. While the records show Ms X has been updated as to progress about consultations with various schools, I have identified several areas of poor practice:

• she was not properly advised about the role of the Panel and the fact her only recourse was via the Tribunal.
• As it was the Council’s stated intention, up to the date of the Annual Review, for Child Y to return to School A, I would expect to have seen a clear, structured plan to action this. There is no evidence of this, nor of any communication with Ms X about how this would be achieved.
• she was not kept properly informed about what action, if any, was being taken to secure alternative provision.

78. Overall, I am satisfied the Council acted with fault in respect of this area of complaint.

Injustice and remedy

79. I have identified several areas of fault that caused a significant injustice to Ms X and Child Y. Child Y went without suitable full-time education and additional support in his EHCP for over a year. The fact he was denied this support meant an already vulnerable young person was further disadvantaged.
80. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. 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.
81. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month (less school holidays) 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.
82. Given Child Y’s age, the stage of his education and the education and support he missed, I consider a payment of £200 a month would be appropriate for the period between May 2021 and May 2022. This should be increased to £400 per month for the summer term of 2022 when he received less formal support.
83. When we recommend a payment for distress or time and trouble, we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1000 may be justified.
84. I am satisfied the distress and uncertainty caused to Ms X justifies a financial remedy at the top end of our scale after taking into account:

• the failure to securing adequate alternative provision for Child Y between May 2021 and September 2022;
• the failure to ensure that Child Y received the support and listed in section F of his EHCP;
• the poor communication and case handling;
• the delay in the ECHP process. This delayed the start of the consultation process and denied Ms X her right to appeal to the Tribunal by several months; and
• the avoidable time and trouble in Ms X having to complain about the Council’s actions.

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Agreed action

85. The Council has agreed to take the following action within four weeks from the date of my final decision:
1. Apologise in writing to Ms X and Child Y.
2. Pay Ms X £1000 to acknowledge her distress caused by the several areas of fault I have identified.
3. Pay Ms X £1800 to recognise its failure to provide Child Y with a suitable education, including support for his SEN between May 2021 and May 2022.
4. Pay Ms X £1200 to recognise its failure to provide Child Y with a suitable education, including support for his SEN between May 2022 and September 2022.
86. Reflect on the issues raised in this decision statement and identify any areas of service improvement, particularly around communication with parents and delay in the EHCP process. It should also review its policies and procedures to ensure the Council retains oversight and responsibility for its duties to children unable to attend school.
87. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems not reoccur. This report should be sent to the Ombudsman.
88. The Council should provide us with evidence it has complied with the above actions.

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Final decision

89. I have found the Council to be at fault and the Council has agreed with my recommendations to remedy the injustice to Ms X. On this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman