Summary: Mrs X complained that the Council failed to provide alternative educational provision for her son, and communicated poorly with her. Mrs X said this impacted on her son’s education and caused unnecessary distress. We find the Council at fault which caused injustice. The Council has agreed to apologise and make a payment to remedy the injustice.

The complaint

1. The complainant, who I refer to here as Mrs X, complained that the Council failed to provide alternative educational provision for her son when he was no longer able to attend his mainstream school due to his special educational needs. She also complained that the Council communicated poorly with her.
2. Mrs X said this impacted on her son’s education and wellbeing. She said it caused the family unnecessary distress, and she spent time and trouble chasing the Council to meet with her and provide alternative provision.

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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. 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)
5. 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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How I considered this complaint

6. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
7. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

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What I found

What should have happened

8. The Education Act 1996 (Section 19) says councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
9. The guidance says councils must arrange suitable full-time education, or as much as the child’s health condition allows, for children who would otherwise not receive a suitable education because of their illness. ‘Suitable education’ means suitable to the child’s age, aptitude, ability, and special educational needs. The Courts have said it is for the council to determine what is ‘suitable education’.

What happened

10. Mrs X’s son, B, has special educational needs and had been attending a mainstream school. In December 2022, B was no longer able to attend school because of his special needs. Mrs X told the Council about this.
11. In January 2023, Mrs X complained. At around the same time, the Council had a meeting with Mrs X to talk about B’s educational provision. The Council agreed that B needed alternative educational provision, and said it would consult with alternative providers.
12. In March, the Council accepted there had been a lack of communication from its special educational needs team. It apologised for this and for the distress caused. It recognised that B had been out of education since December.
13. The Council made a payment to Mrs X of £1200 to recognise the impact of the lost education since December. It also made a payment of £200 to recognise the time and trouble Mrs X went to in chasing officers and making her complaint.
14. In arriving at these figures, the Council said it had considered the Ombudsman’s published guidance on remedies.
15. In April, the Council had a meeting with Mrs X. It had become clear that B could not attend any educational setting because of his needs. The Council agreed to arrange a package of education to be delivered outside of a school environment.

Analysis

Alternative educational provision

16. Mrs X complained that the Council failed to provide alternative educational provision for her son when he was no longer able to attend his mainstream school due to his special educational needs.
17. In March 2023, the Council recognised that B had been out of education since December. It made a payment to Mrs X of £400 per month for each month B had been out of education. I find this amount was in line with the Ombudsman’s guidance on remedies which was in place at that time. I am satisfied this amount remedies the injustice caused to B of the loss of education between December 2022 and March 2023.
18. For this reason, I am only considering what provision was in place after March 2023.
19. In July 2023, the Council told the Ombudsman that there would be eight weeks of provision from a provider called Innovate. It was not clear when this would start.
20. In response to a draft of this decision, the Council told the Ombudsman in late September 2023 that it had recently agreed a package of education to be provided outside school. It said the providers were due to contact Mrs X to arrange a start date and induction for B.
21. I find the Council at fault for failing to provide B with alternative educational provision for the summer term 2023 and some of the autumn term 2023. This fault caused B injustice because of the impact of lost education. I also find this fault caused Mrs X injustice because it caused her unnecessary distress.

Communication

22. Mrs X complained that the Council communicated poorly with her. She said that in June she chased the Council for an update because the educational package still had not been put in place.
23. In March 2023, the Council recognised it had communicated poorly with Mrs X. It apologised and made a payment to her of £200 to reflect the injustice caused.
24. I find there is still poor communication, which is fault. Mrs X should not have to contact the Council for updates about the package of education for B. The Council should be in regular contact with Mrs X with updates. B has been out of education since December 2022 and it is understandably causing Mrs X distress, as I have outlined above.
25. I find this fault caused Mrs X injustice because it caused uncertainty.

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Agreed action

26. Within four weeks of this decision, the Council has agreed to apologise to Mrs X for the unnecessary distress and uncertainty caused by the faults.
27. Within four weeks of this decision, the Council will make a payment to Mrs X of £1600. This is made up as follows:
• £1200 to remedy the injustice for the lack of educational provision in the summer term 2023; and,
• £400 to remedy the injustice for the lack of educational provision for the first month of the autumn term 2023.
28. The Ombudsman’s published guidance on remedies (updated) outlines a payment of between £900 and £2400 per term for lost educational provision. The Council explained that its remedy for the lost educational provision from December 2022 to March 2023 was £400 per month. I consider this was an appropriate and proportionate amount.
29. I have taken into account B’s special educational needs and the Council’s efforts in trying to arrange a suitable package of alternative education. I consider that a remedy of £1200 per term is appropriate and proportionate. This is roughly £400 per month, which is in line with the Council’s previous remedy.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation. I find the Council at fault, and this caused injustice. The Council will apologise and make a payment to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman