Summary: The complainant (Ms X) said the Council had failed to provide her son Y with suitable education since 2018. We found fault with the Council’s failure to consider Ms X’s complaint under the children’s statutory complaint procedure and in the way the Council dealt with Ms X’s corporate complaint. The Council’s fault caused Ms X injustice. We could only investigate whether the Council provided suitable education to Y between January and mid-March 2023. We did not find fault in the Council’s actions at this time. The Council has agreed to apologise, carry out the children’s statutory complaint procedure for Ms X’s complaint and offer her suitable remedies for the complaint upheld at stage two of the corporate complaint process. The Council has also agreed to make a symbolic payment.

The complaint

1. Ms X complains about the Council’s failure to provide her son (Y) with suitable education for the last six years. She says the Council’s failings had extremely detrimental effect on Y as he lost an opportunity to get education leading to some qualifications and was more prone to be exploited. She spent a lot of time contacting the Council and got increasingly frustrated with the Council’s failure to find a school for Y.

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The Ombudsman’s role and powers

2. 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)
3. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The courts have established that if someone has appealed to the Tribunal 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)
5. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
6. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
7. 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)
8. 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.

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How I considered this complaint

9. I spoke with Ms X and considered the information she provided.
10. I made enquiries with the Council and considered the information it provided.
11. Ms 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

Legal and administrative background

Children and Families Act 2014

12. A child with special educational needs may have an Education, Health and Care (EHC) Plan. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place.
13. There is a right of appeal to the Tribunal against the 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.
14. Where a young person moves to another local authority, the previous local authority transfers the EHC Plan to the “new” one.

Education Act 1996

15. 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). We refer to this as section 19 or alternative education provision.

Children Act 1989

16. A child is looked after by a local authority if it is in their care or provided with accommodation in the exercise of any social services functions. (Section 22(1))
17. The duty of a local authority to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child’s educational achievement. (Section 22(3A))

Children’s Statutory Complaint procedure

18. The guidance ‘Getting the best from complaints’ Social Care Complaints and Representations for Children, Young People and Others (Guidance) is based on the Children Act 1989 Representations Procedure (England) Regulations 2006. Only in exceptional circumstances councils can justify a variation from this document.
19. All functions of the local authority under Part 3 of the Children Act 1989 should be considered through the children’s statutory complaint procedure.
20. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
• The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
• If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
• If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.

Council’s corporate complaint procedure

21. On receipt of the complaint the Council will acknowledge it within five working days and respond within 20 working days.
22. If the complaint is not resolved at stage one it can be progressed to stage two. The complaint should be resolved within 20 working days but the investigation can be extended by further 20 working days. In such cases the Council will explain to the complainant its reasons for the extension.

What happened

23. Y is 17. He attended special primary school for children with Social, Emotional and Mental Health difficulties. He has Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. The Council has been maintaining an Education Health and Social Care (EHC) Plan for Y. In Y’s EHC Plan from February 2018 the Council named a specific mainstream secondary school (School 1) as Y’s next placement.

Children services

24. In December 2018 Y’s placement in School 1 broke down. Y received a place in an interim educational centre for a few weeks.
25. In April 2019 the Council placed Y under Section 20 agreement in a children’s services residential setting.
26. From April 2019 Y moved several times between various children’s services residential placements, fostering services and his home. From the end of January 2023 he was placed in a semi-independent living accommodation in a different council’s area.

EHC Plan

27. Following an Annual Review in November 2020 the Council amended Y’s EHC Plan at the beginning of May 2021. It did not identify any school placement for Y. The Council decided Y needed a special school.
28. Ms X appealed Sections B, F and I of this EHC Plan. She asked for a place in an independent special school offering boarding (School 2). During the appeal the Council consulted with many schools, including School 2. No school offered a place.
29. After receiving the SEND Tribunal’s decision, the Council issued Y’s post-Tribunal EHC Plan at the end of December 2022. As no suitable school was found during the appeal, Section I remained unchanged.

Education from January 2023 to mid-March 2023

30. In January 2023 the Council consulted a day special school (School 3), situated on two sites. School 3 offered a place to Y. After visiting School 3 Y did not want to take up a place there.
31. The Council also consulted with a college (School 4) but it did not offer a place.
32. During the Tribunal hearing in December 2022 Ms X said Y had been refusing to engage with his tutors including online tuition.

Complaint

33. At the beginning of March 2023 Ms X complained about Y’s lack of education following the SEND Tribunal’s decision. She said Y did not accept School 3 and wanted to attend a different school. Meanwhile he was not receiving any education.
34. A few days later the Council explained it found School 3 for Y but the offer was refused. The Council asked about Y’s preference for a school placement.
35. After Ms X brought her complaint to us the Council told her it had registered her communication as a formal complaint.
36. The Council provided Ms X with its stage one response in mid-August 2023. It partially upheld her complaint and apologised that from February 2019 the Council could not find a suitable educational placement for Y despite its best efforts. The Council pointed to the evidence showing its officers had been trying to minimise the negative impact on Y by arranging tuition for Y and working closely with social care. It suggested Ms X or Y declined some of its offers of school placements.
37. Ms X was not happy with the Council’s response and asked the Council to consider her complaint at stage two. She did not understand why the Council only partially upheld her complaint as even in its response it admitted between 2019 and early 2023 it failed to offer any school placements to Y. The only school consultations, Ms X said, had taken place during her SEND appeal. Online tutoring for Y was not consistent and when it happened it was only for four hours a day.
38. The Council sent Ms X its stage two response over three months later. It upheld her complaint about the Council’s failings in securing suitable education for Y. The Council recognised even if it had not been able to find a suitable school for Y, it should have arranged for him to access suitable alternative provision.

Analysis

39. The Council has been maintaining an EHC Plan for Y and from April 2019 has been providing accommodation to him under Children Act 1989 Section 20 agreement with Ms X. Therefore the Council owed educational duties to Y as a provider of the SEND services under the Children and Families Act 2014 as well as a provider of children services under the Children Act 1989.

Children and Families Act 2014

40. The timescales for our investigation of the Council’s duties owed to Y as a young person with an EHC Plan limit our investigation to a very narrow period between January 2023 and mid-March 2024. This is for the following reasons:
• I would not investigate anything that happened before May 2021. As explained in paragraph three of this decision we normally investigate events which happened within 12 months from when the complainant came to us. Ms X came to us in March 2023. I cannot see any good reason why she could not complain sooner if she was unhappy about Y’s education.
• Where a child is out of school because the provision or school named in their EHC Plan does not meet their needs, we cannot seek a remedy for any missed education after a final plan was issued and could be or was appealed. The education which Ms X said Y had missed, was closely linked to the appealed issues namely the content of the plan, including the Council’s failure to name a specific school. Ms X appealed Y’s EHC Plan issued in May 2021, asking for School 2 to be named. The appeal was concluded in December 2022. I cannot, therefore, investigate the delivery of alternative provision for Y between May 2021 and December 2022.
• In mid-March 2023 the Council transferred Y’s EHC Plan to a different council, where Y was placed in a semi-independent living accommodation. From this date the new council took over the duties to maintain and deliver Y’s EHC Plan.
41. I did not find fault in the way the Council approached its duties for Y as a young person with EHC Plan between the dates of issuing the final post-Tribunal EHC Plan and transferring this plan to a different council. In the period of two and a half months of spring term 2023, the Council offered Y a place in School 3 and consulted with School 4. Y also had an option of accessing online tutoring. I have seen no evidence that what the Council offered was not suitable for Y.

Children Act 1989

42. As explained in paragraph 17 of this decision promoting a looked after child’s educational achievement is the Council’s duty under part three of the Children Act 1989. The Council should have considered Ms X’s complaint about its failing to deliver suitable education to Y as a looked after child under the children’s statutory complaint procedure.
43. Failure to consider Ms X’s complaint through the children’s statutory complaint procedure is fault. This fault caused injustice to Ms X as she did not have her concerns reviewed in a way and within the timescales provided by the legislation.

Complaint handling

44. When responding to Ms X’s complaint the Council:
• significantly exceeded the timescales set up in its corporate complaint policy;
• when upholding Ms X’s complaint failed to offer suitable remedies other than an apology.
45. The Council’s failings in the way it handled Ms X’s complaint are fault. This fault caused injustice to Ms X as she was increasingly frustrated by the lack of resolution of the issues she raised and by the delays. Although the Council eventually upheld her complaint it failed to offer meaningful remedies apart from an apology.

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Agreed action

46. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks from 28 October 2024 complete the following:
• Send a written apology to Ms X. We publish “Guidance on Remedies” which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• Respond at stage one of the children’s statutory complaints procedure to Ms X’s complaint about the Council’s failings to promote Y’s educational achievement as a looked after child. If there are any other Ms X’s complaints considered under the children’s statutory complaint procedure at stage one or stage two, the Council can include the issues of this complaint in its investigation, provided it will not cause a significant delay.
• Offer Ms X suitable remedies for the Council’s failings recognised during the corporate complaint process. When offering remedies the Council will refer to our “Guidance on Remedies”.
• Pay Ms X £150 to recognise the injustice caused by the Council’s failure to consider her complaint under the statutory children’s complaint procedure and the Council’s failings within the corporate complaint process.

The Council should provide us with evidence it has complied with the above actions.

47. We also recommend the Council within three months from 28 October 2024 review its corporate complaint handling to ensure:
• It responds at both stages within the timescales set out in the Council’s complaint policy;
• When upholding complaints it offers suitable remedies.

The Council should provide us with evidence it has done that.

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Final decision

48. I uphold part of this complaint. I found fault with the Council’s failing to consider Ms X’s complaint under the children’s statutory complaint process and in the way the Council dealt with Ms X’s corporate complaint. This fault caused Ms X injustice. I did not find fault in the remaining part of Ms X’s complaint. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman