Summary: Miss X complained about the support the Council provided for her son, Y’s, special educational needs. There was fault in how the Council consulted schools, arranged alternative education, reviewed Y’s education health and care plan and communicated with Miss X. The Council agreed to apologise, pay a financial remedy, review Y’s plan and review its practices.

The complaint

1. Miss X complains about the support the Council provided for her son, Y’s, special educational needs after she moved to the Council’s area in June 2022. She says the Council failed to:
• arrange suitable school places for Y in line with his existing Education Health and Care (EHC) plan;
• arrange suitable alternative education when it could not arrange a suitable school place;
• review Y’s EHC plans within a reasonable time;
• properly prepare for Y’s move to post-16 education; and
• keep her up-to-date or communicate with her properly.
2. As a result, she says Y missed out on education and the other support in their EHC plans and her whole family was caused significant distress and upset. She wants the Council to apologise and arrange suitable education for Y.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
8. Miss X and the Council had an opportunity to comment on my draft decision. I consider their comments before making a final decision.
9. 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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What I found

Education health and care plans

10. 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.
11. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC plan to the ‘new’ council. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to review the plan or whether it intends to carry out a reassessment. (Special Educational Needs and Disability Regulations 2014)
12. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.

Alternative education provision

13. 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)
14. 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)
15. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Elective home education

16. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
17. Where a parent notifies a school that they intend to educate their child at home, most schools must remove the child from the school’s roll (‘admissions register’) (Education (Pupil Registration) (England) Regulations 2006, regulation 8(1)(d))

What happened

18. Miss X’s son, Y, has special educational needs associated with anxiety, autism spectrum disorder, attention deficit hyperactivity disorder and post-traumatic stress disorder. He has an EHC plan issued in March 2022 by the council for the area where Miss X lived at the time. This said Y would attend a mainstream secondary school near his home and receive support from a learning support assistant while at school.
19. In May 2022, Y’s school held an early review of his EHC plan. The review said Y had been attending one-to-one sessions at the school for a few hours a day but had struggled to cope with more. Miss X says the school said it could no longer meet Y’s needs and he needed a different kind of school.
20. In mid-June 2022, Miss X moved to the Council’s area. Shortly before moving, Miss X told her former council and Y’s school that she was moving and intended to educate her children at home until suitable school places were found in her new area. As a result of this notification, Y’s school removed him from its roll.
21. Miss X’s former council sent Y’s EHC plan to the Council a few days before the move. In its message the former council said:
• Y was currently attending the mainstream school mentioned in his EHC plan;
• Miss X wanted a specialist residential placement for Y; and
• gave a list of schools Miss X wanted the Council to consult about school placements.
22. The Council called Miss X in mid-July 2022 to discuss the referral from her former council. The Council arranged some at-home tuition for Y for the last few weeks of the school year.
23. The Council sent consultations to four schools, including the three schools Miss X had told her former council she wanted to consider, in early August 2022. One of these told the Council it could not admit Y because it did not accept admissions part-way through GSCE courses. The other three schools did not respond to the Council’s consultations.
24. At the starts of the next school year, in early September 2022, Miss X told the Council that no tutors had arrived for Y. The Council’s files show it recorded two requests for someone to call Miss X back, but there is no evidence it did this.
25. Miss X complained to the Council about the lack of contact and information in mid-September 2022. Around this time, she told the Council that a tutor had now attended but ended the session because Y could not concentrate while at home.
26. The Council replied to Miss X’s complaint in mid-October 2022. It accepted it had failed to return Miss X’s calls on two occasions and apologised. It explained it was still searching for a suitable school placement for Y and was trying to arrange suitable tuition for him in the meantime.
27. Later in October 2022, the Council referred Y to its alternative education provider which responded with a plan for sessions with Y at a local library. However, the Council did not respond to this offer until early December 2022, due to staff illness at the Council. The Council continued to consult with possible schools for Y.
28. Mrs X complained further to the Council in December 2022, as she was not satisfied with the Council’s response to her complaint. She said the Council had not made suitable arrangements for Y’s education while it was looking for school places and had not contacted her since its last response to her complaint.
29. In January 2023, Miss X asked the Council about a different alternative education provider, Provider B. The Council sent Miss X the provider’s application form for her to complete and followed up with a reminder about this later in January.
30. Miss X told the Council in March 2023 that she was interested in using Provider B. She asked the Council to send her a copy of the application form by post. Miss X returned the completed application form later that month and the Council forwarded this to Provider B. The Council chased up the application in early May 2023 and sessions started with Y in late May 2023.
31. The Council responded to Miss X’s further complaint in late March 2023. The Council said it did not believe it had failed to arrange suitable education for Y and, in my view, sought to blame Miss X for refusing to engage with the Council. It did, however, accept it had failed to consult mainstream schools which might be able to meet Y’s needs and this had possibly delayed his return to education. The Council offered to pay Miss X £2,400 to recognise the failures it accepted. The Council said it calculated this as £300 a month for each month of education Y missed.
32. Miss X was not satisfied with Council’s response so she complained to the Ombudsman in May 2023.
33. After Miss X complained to the Ombudsman, the Council arranged a review of Y’s EHC plan for mid-July 2023. However, Miss X had to cancel the agreed date as she and Y needed to attend another urgent appointment on that date.
34. As of August 2023, there was no agreed date for a review of Y’s EHC plan and no confirmed school placement from September 2023 onwards.

My findings

School places for Y

35. After it first knew about Y, the evidence shows the Council consulted relatively quickly with Miss X’s preferred schools. However, there is no evidence it chased up some of these consultations when it did not receive a response.
36. The Council then consulted with a further 17 schools between September 2022 and July 2023. Some schools replied to say they could not meet Y’s needs. However, there were several others where the Council got no response and no evidence it chased and outstanding responses.
37. The Council has already accepted it should have done more to consult schools and that Y may have returned to education in school sooner if it had done so.

Alternative education for Y

38. When council first became aware of Miss X’s move to its area, it had good reason to believe that Y was still attending his previous school. It did not know Miss X had told Y’s school that she would be educating him at home shortly before she moved home and the school appeared to be within a reasonable travelling distance. When it became aware Y was not attending school in mid-July 2022, the Council quickly arranged some at home tuition which, at first, was agreed with Miss X. I am satisfied there was no fault in the Council’s original response to Y moving to its area.
39. The Council knew shortly after start of new school year in September 2022 that Y was not receiving any education. While it tried to arrange an alternative the following month, it did not progress that alternative for nearly two months and did not suggest anything else until January 2023. Those delays were fault.
40. After the Council discussed Provider B with Miss X in January 2023, it only received the completed application form from Miss X in March 2023. There is evidence the Council reminded Miss X about the application form in between those dates. The delay between January and March 2023 was not due to fault by the Council.
41. When Miss X returned the application form for Provider B, the Council forwarded this on promptly. There was then a delay in getting a response from Provider B, though the Council did chase this up.
42. From May 2023, the evidence shows Y received two sessions a week with Provider B with a plan to increase this when Y was ready. The amount of education Y received was not, in my view, equivalent to full-time education. However, the evidence shows Y had difficulty taking part in full-time education both before Miss X moved to the Council’s area and since. I am satisfied the evidence shows the education the Council arranged took into account Y’s specific needs and the amount of education he could take part in from May 2023 onwards.
43. The Council has offered Miss X £2,400 to recognise the education Y missed out on. Given the amount of time Y was out of education, the amount of education he would likely have been able to take part in and his age, I am satisfied the financial remedy the Council has offered is suitable.
44. However, in its responses to her complaint, and my enquiries, the Council attempted to place much of the responsibility for Y being out of education on Miss X. Having considered all the evidence the Council has provided, I am not satisfied Miss X refused to cooperate with the Council over Y’s education.
45. Y clearly has very significant needs which present a barrier to him accessing education. I would describe Miss X’s approach to the offers the Council made for alternative education as strongly advocating for Y’s needs, as someone who knew him best. Where miss X told the Council a proposed alternative was likely not suitable, she gave clear reasons why based on Y’s needs.
46. In my view, the Council wrongly characterised Miss X’s objections as being “un-cooperative”, particularly given that it had very limited information of its own about Y’s needs. I am satisfied that was fault which caused Miss X avoidable upset and distress.

Reviewing Y’s EHC plan and preparing for post-16 education

47. Following her move to its area, the Council should have told Miss X when it planned to review Y’s EHC plan by the end of July 2022. It accepted it failed to do this.
48. The Council should also have arranged a review of Y’s EHC plan in preparation for his move to post-16 education. The law says the Council should have done this with enough time to issue an amended plan by the end of March 2023. The Council’s failure to do this was fault.
49. Had the Council arranged to review Y’s EHC plan at the right time, Miss X would have had a formal opportunity to discuss with the Council how her son’s needs had changed, what type of school would be suitable and the right to name her preferred school for Y. She would also have had the right to challenge any changes to the plan or the Council’s choice of any school placement well in advance of the start of the 2023-24 school year.
50. Given his needs, I cannot say whether Y would be in a school placement which Miss X agreed was suitable if the Council had issued an amended plan by the end of March 2023. However, there is a significant remaining uncertainty about what the outcome would have been. That is an injustice to Miss X and Y.

Communication with Miss X

51. The evidence shows the Council’s communication with Miss X since she moved to its area was, at times, very poor. There are several recorded instances of the Council failing to return Miss X’s phone calls and long periods of time during which it did not communicate with her at all. That was fault.
52. Combined with the other fault I found above, I am satisfied this added to the worry, frustration and distress Miss X experienced during what was a difficult time for both her and Y.
53. There was also evidence of poor communication with other professionals involved in Y’s life, including a period of several months where the Council failed to respond to requests for information about Y’s alternative education.

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Agreed action

54. Within one month of my final decision the Council will:
• apologise to Miss X for the distress, uncertainty and frustration caused by the failures I have identified above;
• apologise to Y for failing to arrange suitable education for him after he moved to its area, the delays in reviewing his EHC plan in reparation for his post-16 education and the avoidable distress and uncertainty this caused him; and
• pay Miss X £3,400 made up of:
1. the £2,400 is has already offered, to recongise the education Y has missed out on. This is intended for Y’s future education or developmental benefit;
2. £600 for Miss X to recognise the distress, frustration and uncertainty it caused; and
3. £400 for Y to recongise the distress and remaining uncertainty it caused;
55. Within two months of the final decision the Council will:
• arrange the outstanding review of Y’s existing EHC plan;
• review the arrangements for providing Y with a suitable education while awaiting the outcome of the review; and
• provide Miss X and Y with a communication plan setting out how the Council will keep them updated about its efforts to arrange Y’s education. The Council should ask for Miss X and Y’s input into the plan and consider their views and wishes.
56. Within three months of my final decision the Council will:
• review its arrangements for logging and responding to contact with its SEN service;
• review its procedures for planning and arranging reviews of EHC plans in advance of transfers to post-16 education. The Council should ensure it identifies relevant cases and arranges for reviews to take place in enough time to issue amended plans by the required dates; and
• review how it monitors its caseload of EHC plan cases to ensure cases are appropriately prioritised during period of officer leave or sickness and that parents are kept informed about any delays.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. There was fault in how the Council consulted schools, arranged suitable alternative education for Y, failed to review Ys’ EHC plan and communicated with Miss X. This meant Y missed out on some education and caused distress to both Miss X and Y. The Council agreed to apologise, pay a financial remedy, review Y’s EHC plan and review its procedures.

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Investigator's decision on behalf of the Ombudsman