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

The complaint

1. Miss X complains about the support the Council provided for her son, Z’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 Z 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 Z’s EHC plans within a reasonable time; and
• keep her up-to-date or communicate with her properly.
2. As a result, she says Z 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 Z.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred.
5. 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)
6. 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.
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)

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How I considered this complaint

8. 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.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
10. 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

11. 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.
12. 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)
13. After transfer from the ‘old’ council, the ‘new’ council must review an EHC plan before the later of:
• 12 months since the plan was made or last reviewed by the ‘old’ authority; or
• 3 months of the plan being transferred.

Alternative education provision

14. 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)
15. 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)
16. 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

17. 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.
18. 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

19. Miss X’s son, Z, has special educational needs associated with diagnoses of autism spectrum disorder, attention deficit hyperactivity disorder and problems with walking. He has an EHC plan issued in March 2021 by the council for the area where Miss X lived at the time. This plan said Z would attend a mainstream primary school near his home and receive one-to-one support while at school.
20. Z’s school at the time reviewed his EHC plan in January 2022. As part of that review, the school recommended Z should have a specialist school placement because of the intensive support he needed.
21. In mid-June 2022, Miss X moved to the Council’s area. Shortly before moving, Miss X told her former council and Z’s school that she was moving and intended to educate her children at school until suitable school places were found in her new area. As a result of this notification, Z’s school removed him from its roll.
22. Miss X’s former council sent Z’s EHC plan to the Council a few days after she moved. In its message the former council said Z was attending the mainstream school mentioned in his EHC plan.
23. In mid-July 2022, Miss X emailed the Council and told them Z was still on the roll of his previous school but could not manage in mainstream school. She told the Council she would need school transport for both children. There is no evidence the Council replied to this message from Miss X at the time.
24. Miss X chased the Council in early August 2022 and the Council arranged a phone call with Miss X around a week later. During that phone call Miss X explained more about Z’s needs and gave the Council a list of the schools she wanted the Council to consult about for a school place.
25. Around this time, the Council discovered that it could not access the documents Miss X’s former council had sent so it asked the old council to resend them. The Council also sent consultation requests to the schools Miss X had asked for, along with some other schools the Council thought might be suitable. Miss X replied to the Council saying she thought a mainstream placement would not be suitable for Z because he needed intensive one-to-one support.
26. At the end of September 2022, the Council directed the nearest mainstream primary school, School A, to admit Z as a temporary measure while it consulted with other schools. It also sent consultations requests to a range of specialist schools in its area.
27. The Council met with Miss X in mid-October 2022 to discuss the search for a suitable school place for Z. Miss X again told the Council which schools she wanted Z to attend and that she did not believe that School A could meet his needs.
28. After the meeting the Council:
• decided to consult with a wider range of schools, including special schools;
• referred Z for 18 hours a week alternative education provision, supported by School A; and
• agreed to seek more information about Z’s needs to decide if it needed to make any changes to his EHC plan. It sent Miss X consent forms for referring Z for specialist assessments.
29. Around a week later, following a visit to Z at home, one of the Council’s alternative education providers, Provider P, agreed it could offer a place for him. Since Z needed school transport to attend the provision, the Council agreed to arrange transport in early November 2022. The Council told Miss X it could take a few weeks to find a suitable transport provider.
30. In early January 2023, Z attended his first day at Provider P. However, Provider P did not know that Z would be starting that day and so was not expecting or ready for him. This meant that Z did not have a planned introduction to the placement and this made it more difficult for him to form relationships with the other children. As a result, Provider P told the Council it would have to reduce Z’s timetable to 9 hours a week.
31. A few weeks later, the Council referred Z to another education provider, Provider Q, for additional hours. There were some delays with Provider Q responding to the referral, followed by Provider Q needing more information about Z’s needs. Despite Provider Q at first saying it would offer support for Z, it decided in late April 2023 it could not, because he needed close support with his personal hygiene.
32. The Council started to arrange an annual review of Z’s EHC plan in mid-June 2023. Around this time, it also referred Z to other alternative education providers to make up for the shortfall in his alternative education.
33. The annual review meeting took place in late June 2023 and the Council told Miss X it intended to amend Z’s EHC plan in mid-July 2023.
34. Another provider, Provider R, told the Council in late July 2023 that it would be able to offer the rest of Z’s alternative education hours from September 2023.

My findings

School places for Z

35. There was a delay of several weeks after the Council first became aware of Z before it contacted Miss X. However, based on the information Miss X’s former council sent about Z, I am satisfied the Council, at first, had a reasonable belief that Z was attending his former school.
36. Once the Council became aware Miss X wanted a different school place for Z, the evidence shows it began consulting schools quickly, including the schools Miss X said she preferred. However, there is no evidence the Council chased responses from schools that did not originally reply. That failure to chase responses was fault, however I do not think this likely made a difference to the outcome, since Z had very significant needs and it is unlikely those schools would have been able to meet those needs.
37. The Council consulted with a total of 38 schools to try to find a suitable place for Z, including several independent special schools and those schools Miss X said she wanted the Council to consider.
38. The EHC plan transferred from Miss X’s former Council said that Y needed to attend a mainstream secondary school. Therefore, it was not fault for the Council to, at first, arrange a place for Z at a mainstream secondary school near his home. The evidence shows the Council did this with the intention of arranging alternative education for Z while it searched for a suitable placement at a special school.

Alternative education for Z

39. I am satisfied the evidence shows the Council knew, in mid-July 2022 that Z was not attending school. It quickly agreed that Z needed a specialist placement however, Z did not start attending the alternative provision at Provider P until January 2023. I am satisfied this was mainly because of:
• delays in the Council referring Z for that alternative provision, which it did not do until mid-October 2023; and
• delays and poor communication between the Council’s SEN and school transport teams.
40. When Z did start attending Provider P, this was not arranged properly as the provider did not know he would be arriving. This meant that Z’s reintroduction into education did not go smoothly and, on the balance of probabilities, I am satisfied this also contributed to Provider P reducing Z’s hours from 17 to 9 hours a week.
41. There were then further delays in arranging more hours for Z:
• around three months after the Council referred Z to Provider Q;
• around two and a half months before the Council then consulted other providers; and
• capacity delays at provider R until September 2023 (though this covered much of the summer school holidays).
42. I am satisfied some of those delays were due to fault on the Council, particularly a lack of oversight and urgency in arranging education for Z. Some of the delays were out of the Council’s control. However, the Council still had a duty to arrange suitable education for Z, which should have been the equivalent of full-time, based on the Council’s own assessments. The Council’s failure to do this amounted to service failure and was therefore fault.
43. Allowing for a reasonable time for the Council to arrange alternative education, I am satisfied that Z:
• went without any suitable education for one term between August and December 2022; and
• received only a part-time education (around half what he should have received) for the two terms between January and September 2023.
44. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. Taking into account Z’s needs, the support set out in his EHC plan, the education he did receive for some of that time and that the education he received was mostly one-to-one I am satisfied suitable remedies are:
• £1,800 per term Z went without any education; and
• £900 per term Z received a part-time education.

Reviewing Z’s EHC plan

45. Z’s former school carried out a review of his EHC plan in February 2022, before Miss X moved to the Council’s area. However, there is no evidence Miss X’s former council completed the review process before she moved.
46. When it first received Y’s EHC plan, the information the Council received included notes from the review meeting in February 2022. There is no evidence the Council considered that information or clarified whether the review had been completed. Based on the information available at the time, the Council should have realised that a formal review of Z’s EHC plan was overdue.
47. Therefore, the Council should have arranged to review Z’s EHC plan within three months of him moving to its area. It also failed to review Z’s EHC plan within 12 months of the last review in February 2022. Its failure to do this was fault.
48. The Council seems to have accepted the main points of the 2022 review and agreed that Z needed a special school placement. Therefore, I do not believe the failure to carry out the review affected its search for suitable school placements.
49. However, the Council’s failure to complete a review when it should have done caused a delay in the Council issuing a final amended EHC plan and this delayed Miss X’s right of appeal, including about which school the Council would have named in the plan. Since the Council has not yet issued a final plan following its late 2023 review, I cannot say whether the outcome would have been different. The delays did, however, add to Miss X’s frustration and distress about Z’s education.

Communication with Miss X

50. 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.
51. 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 Z.
52. There was also evidence of poor communication with other professionals involved in Z’s life, including several occasions when it failed to properly communicate with alternative education providers and other professional’s supporting Miss X.

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Agreed action

53. 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;
• pay Miss X £4,200 made up of:
1. £3,600 to recognized the education Z missed, intended for his future educational benefit;
2. £400 for Miss X to recognise the distress, worry and frustration it caused;
3. £200 to fund a suitable gift for Z to recognise the missed opportunity for him to take part in the education he was capable of.
• issue the final amended EHC plan for Z following its June 2023 annual review;
• provide Miss X with a communication plan setting out how the Council will keep her updated about its efforts to arrange Z’s education and finalise his EHC plan. The Council should ask for Miss X input into the plan and consider her views and wishes.
54. Within three months of my final decision the Council will:
• review its arrangements for logging and responding to contact with its SEN service; 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.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation. There was fault in how the Council consulted schools, arranged alternative education for Z, delayed reviewing his EHC plan and communicated with Miss X. This meant Y missed out on some education and caused distress to both Miss X and Z. The Council agreed to apologise, pay a financial remedy, issue a final amended EHC plan and review its procedures.

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Investigator's decision on behalf of the Ombudsman