Summary: Mrs X complained the Council failed to provide alternative educational provision for her child when they were unable to attend school. She complained the Council delayed its decision not to do an education, health and care needs assessment, and complained about delays handling her complaint. Mrs X said there was a huge impact on her child of the missed education, and said it caused unnecessary and avoidable distress and frustration. We find the Council at fault, and this caused injustice. The Council has agreed to apologise and make a payment to Mrs X to remedy the injustice caused.

The complaint

1. The complainant, who I refer to here as Mrs X, complained the Council failed to provide alternative educational provision for her child when they were unable to attend school. She complained the Council delayed its decision not to do an education, health and care needs assessment. She also complained about delays handling her complaint.
2. Mrs X said there was a huge impact on her child of the missed education, and an impact on their mental health. Also, the delay deciding not to do a needs assessment meant a delay meeting her child’s needs. Mrs X said it had an impact on her and the family when they had to provide education because the Council did not. She said it caused unnecessary and avoidable distress and frustration, made both parents ill with worry and stress, and cost them time and trouble.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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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What I have and have not investigated

9. Mrs X complained to us in November 2023 about events going back to January 2022. As I have said above, we cannot investigate late complaints unless we decide there are good reasons.
10. In this case, Mrs X complained to the Council in October 2022 and the Council delayed responding to her complaint formally. I therefore find there are good reasons for us to exercise our discretion and consider events since January 2022.

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How I considered this complaint

11. 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 received before I reached a final decision.
12. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies, and our “Principles of Good Administrative Practice” (published in 2018).

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What I found

What should have happened

Alternative educational 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative educational provision.
14. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Education, health and care needs assessments

15. Education, health and care (EHC) plans set out the special educational provision required to meet a child or young person’s special educational needs. To see if a child or young person needs an EHC plan, a council can decide to complete an EHC needs assessment.
16. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
17. The guidance says when a council receives a request for an EHC needs assessment, it must decide whether to agree to the assessment and must send its decision to the child’s parent within six weeks.

The Council’s complaints procedure

18. The Council’s complaints procedure says if the Council is unable to resolve a complainant’s dissatisfaction at the first point of contact, there is a two stage complaints procedure it will follow.
19. The procedure says that at stage one, the Council will send a response within 20 working days.
20. If the complainant is unhappy with the stage one response, they can ask for stage two. The Council will send a stage two response within 20 working days, or it will tell the complainant if it will take longer and let them know when they can expect a full reply.

The Ombudsman’s ‘Principles of Good Administrative Practice’

21. The Ombudsman’s ‘Principles of Good Administrative Practice’ sets out guidance and core principles for councils. This is the benchmark for the standards we expect of councils.
22. This says we expect councils to:
• follow their policies and guidance (section 1);
• provide clear and timely information on how and when to appeal or complain (section 5); and,
• operate an effective complaints procedure (section 5).

What happened

23. In January 2022, Mrs X’s child, B, did not go back to school after the holidays for health reasons.
24. In October, Mrs X complained to the Council. She explained that B was too unwell to attend school.
25. In November, Mrs X asked for an education, health and care (EHC) needs assessment. She also asked the Council to consider her complaint.
26. Also in November, the Council agreed to reimburse Mrs X for what she had spent on alternative educational provision up to that date. It also agreed to fund B’s alternative educational provision going forward.
27. Shortly after this, the Council said it would consider Mrs X’s complaint formally. It said her complaint was the first time the Council had been made aware that B was not attending school. It said it would always try to resolve a complaint informally first, and would escalate to formal stage one if the informal attempts to resolve the complaint had not worked.
28. On the same day, Mrs X asked the Council to escalate her complaint to the formal stage immediately.
29. A week later, the Council said Mrs X would have an opportunity to escalate her complaint once it had sent its informal complaint response. It said, “Escalating at this time would not result in a different or quicker response.”
30. A week after this, the Council sent its informal complaint response.
31. In February 2023, after much communication, Mrs X told the Council it had still not resolved her complaint to her satisfaction.
32. In March, Mrs X again asked to escalate her complaint.
33. In May, the Council sent Mrs X its stage one complaint response. Mrs X asked the Council to consider her complaint at stage two.
34. In July, the Council sent its stage two complaint response. It accepted that the school did not follow the Council’s policy, which would have made the Council aware that B was not attending school.
35. The Council recognised the adverse impact on B of not attending school up to that point, and apologised. The Council offered Mrs X £500 to recognise the considerable time, effort and stress this was likely to have caused.
36. In November, Mrs X complained to the Ombudsman.

Analysis

Alternative educational provision

37. Mrs X complained the Council failed to provide alternative educational provision for her child, B, when they were unable to attend school.
38. The Council’s policy at the time B stopped attending school was that the school should refer a child not attending school to the Council’s medical pupil referral unit. The Council said the school failed to do this. This is the reason the Council did not know B was out of school until October, when Mrs X complained.
39. As I have said above, we cannot investigate the school’s actions. We can only investigate the Council’s actions. After the Council found out in October that B had not been attending school since January, I find there was no delay in the Council agreeing to reimburse Mrs X for the alternative provision she had arranged and paid for. The Council also agreed to pay for B’s alternative provision going forward. This is positive.
40. However, the Council should have known that B was not attending school. This is fault. The Council is ultimately responsible for arranging suitable education when a child is out of school. It should have had oversight and control to ensure it properly fulfilled it duties.
41. Mrs X arranged suitable alternative educational provision within a short time of B being out of school. This provision has continued to date, and Mrs X confirms she has been reimbursed for the provision she paid for. I find this means there is limited injustice to B because there was very little time when they were without suitable education.
42. However, I find this fault caused Mrs X injustice in that it caused her unnecessary and avoidable distress and frustration. The Council has apologised for the injustice caused and offered Mrs X a payment of £500 to recognise the considerable time, effort and stress this was likely to have caused. The Council confirmed that Mrs X has not yet accepted this offer.
43. I have considered the Ombudsman’s published guidance on remedies. This sets out a usual maximum of £500 to remedy distress. I find that the Council’s remedies here are appropriate and proportionate given the level of injustice caused.
44. Since these events, the Council has reviewed its policy which should mean the same thing does not happen to another child. This is positive. For this reason, I have not proposed any service improvements.

Education, health and care needs assessment

45. Mrs X complained the Council delayed its decision not to do an education, health and care (EHC) needs assessment.
46. The Council had six weeks from the date it received Mrs X’s request for an EHC needs assessment to decide whether to agree to the assessment, and send its decision to Mrs X.
47. Mrs X asked the Council for an EHC needs assessment in early November 2022. The Council sent its decision in early December 2022, within six weeks. I therefore find no fault.
48. The Council said Mrs X told the Council she had not received its decision. The Council re-sent its decision. Mrs X acknowledged she had received it the decision in mid-December 2022. This was at the very end of the six weeks. So, I do not find the Council at fault.

Complaint handling

49. Mrs X complained about delays handling her complaint.
50. Mrs X complained in early October 2022. In November, the Council said it would consider her complaint formally. On the same day, Mrs X asked the Council to escalate her complaint to the formal stage immediately.
51. The Council did not do this. Instead, the Council sent Mrs X a number of informal complaint responses. It also told her that she would have an opportunity to escalate her complaint once the Council had sent its informal response. It said escalating her complaint would not result in a different or quicker response. This is not good practice, and is not in line with the Council’s complaints procedure.
52. When the Council sent its informal complaint response in November, it did not tell Mrs X how she could escalate to stage one of the formal complaints procedure. This is not good practice.
53. In February 2023, Mrs X told the Council it had still not resolved her complaint to her satisfaction. The Council’s reply did not mention anything about a formal complaint response.
54. In March, Mrs X again asked the Council to escalate her complaint.
55. The Council sent its stage one complaint response in May. The Council recognises that this took longer than anticipated.
56. The Council’s complaints procedure says if the Council is unable to resolve a complainant’s dissatisfaction at the first point of contact, there is a two stage complaints procedure it will follow. At stage one, the procedure says the Council will send a response within 20 working days.
57. I find it was clear from at least November that the Council was not able to resolve Mrs X’s dissatisfaction at the first point of contact. The Council said in November it would consider her complaint formally. If the Council had done this, it should have issued its stage one response in mid-December 2022. It did not do this until May, six months after she complained. This is fault.
58. Regarding stage two, Mrs X asked for this in May 2023. The Council should have issued its stage two response a month later. It did not send its response until July, one month late. This is fault.
59. I find the complaint handling faults caused Mrs X injustice in that they caused unnecessary and avoidable distress and frustration. It should not have taken nine months for the Council to fully consider Mrs X’s complaint.
60. Above, I have set out three parts of the Ombudsman’s ‘Principles of Good Administrative Practice’ (see paragraph 22). These set out that we expect councils to follow their policies, provide clear and timely information on how and when to complain, and operate an effective complaints procedure. I do not find the Council met these expectations when dealing with Mrs X’s complaint.

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Agreed action

61. Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for causing unnecessary distress and frustration by its poor complaint handling.
62. 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 when making this apology.
63. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £850. This is made up as follows:
• £350 to remedy the unnecessary distress and frustration by its poor complaint handling. In arriving at this figure, I have considered our guidance on remedies. This sets out a maximum of £500 for injustice of this kind. I have taken into account the length of time involved and the amount of effort Mrs X went to in trying to get the Council to formally respond to her complaint. I consider £350 an appropriate and proportionate amount taking these factors into account; and,
• £500 which the Council offered Mrs X in July 2023 but she has not accepted to date. This was to remedy the considerable time, effort and stress that was likely to have been caused to Mrs X regarding alternative educational provision. I find this an appropriate and proportionate remedy for the level of injustice caused.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. I find the Council at fault, and this caused injustice. The Council has agreed to take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman