Summary: Ms X complained the Council failed to provide her daughter with suitable education and support, failed to keep her updated and has not been transparent. It has also delayed dealing with her complaint. Ms X says this has caused stress to the whole family. The Council has upheld Ms X’s complaint, apologised and offered a remedy. I consider this is a satisfactory response and is line with the Ombudsman’s guidance on remedies.

The complaint

1. Ms X complained the Council has failed to provide her daughter, D, with suitable full-time education, failed to keep proper records and failed to keep her updated. Ms X also feels the Council has mislead her and not been transparent. She also said the Council has caused delays in responding to her complaint. This has caused stress to the whole family and Ms X has spent time and trouble bringing the complaint.

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The Ombudsman’s role and powers

2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

5. I can only investigate the complaint as set out in Ms X’s original complaint to the Council and as summarised above. The Councils complaint response is dated December 2024 and considers the period from September 2023 to May 2024. I have investigated the same period.
6. The Council has since drafted a further Education Health and Care Plan which Ms X has appealed to the Tribunal. This falls outside the Ombudsman’s jurisdiction. I have therefore not investigated this.
7. If Ms X has concerns after this date, this should raise a new complaint with the Council.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The Education, Health and Care Plan

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
11. 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.
12. 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)
13. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
14. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Appeal rights

15. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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 in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

16. The courts have established that if someone has appealed to the Tribunal, the law says 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)
17. 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.
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

The Council’s policies and procedures

19. The Council’s complaint policy is available online.
20. The Council should acknowledge a complaint within three working days and issue a stage one response within 21 working days.
21. If a complainant is not satisfied with the response, they should tell the Council within 21 working days and explain why they are not satisfied.
22. If attempts to resolve the complaint at stage one are not successful, the Council can agree to consider the matter at stage two. This is not an automatic right.
23. The Council will acknowledge the stage two request within five working days and a Customer Experience Manager or external investigator will carry out an independent investigation. Stage two investigations should normally be completed in 25 working days, but this can be extended to 65 working days in complex cases.
24. If the complainant remains dissatisfied with the response, they can complain to the Ombudsman.

What happened

25. I have summarised below the key events; this is not intended to be a detailed account.
26. D has an EHC Plan and is on the roll at a mainstream secondary school. D struggled to access school from the start of the academic year in 2023.
27. From May 2024, D received support from Nudge Education, an alternative education provider, while remaining on the roll at mainstream school.
28. The Council held an Annual Review in July 2024 and drafted a new EHC Plan. Ms X appealed the Plan to the tribunal. The Council has been working on a further draft while the appeal is continuing. As explained above, this falls outside the area of my investigation.

The complaint

29. In April 2024, Ms X complained to the Council. There were seven parts to her complaint:
• Lack of communication and updates.
• Lack of provision, resulting in D not receiving education in line with her EHC Plan.
• Referral to Nudge education delayed.
• Failure to tell Ms X about the Panel’s decision to refer to Nudge.
• Lack of provision stated in the EHC Plan.
• Lack of forward planning about D’s education for September 2023 onwards.
• Delay in the complaints process.
30. The Council sent a stage one response in July 2024 and a stage two response in December 2024.
31. In their stage two report, the investigating officer upheld every part of Ms X’s complaint. It offered several remedies which included:
• A financial remedy of £6,600 for missed education provision from September 2023 to May 2024.
• Action the referral to bereavement support and offered £250 for the delay in making the referral.
• Offered £500 for time and trouble and distress caused.
• Offered £150 for the delay in the complaint response.
• Review measures to address issues of communication and improve contact families receive.
• Reallocated D’s case to a coordinator.
• Apology.
32. Ms X was not satisfied with the Councils response and complained to the Ombudsman in December 2024. She said the Council has failed to provide D with a suitable full-time education, failed to provide updates, provided wrong information and have delayed responding to her complaint.

Analysis

33. I used the themes in Ms X’s complaint to the Ombudsman in the analysis below

Lack of provision

34. I asked the Council what provision D received between September 2023 and May 2024, for which it offered a financial remedy of £6,600. The Council said D was on the roll at mainstream school but struggled to access it. The investigating officer found D received no education provision during this time.
35. The Ombudsman’s guidance on remedies usually recommends between £900 - £2,400 per term of missed education. September 2023 to May 2024 is roughly two and a half terms. The remedy offered by the Council is at the top end of our suggested guidance on remedies. This is a suitable remedy.
36. Since this time, the Council has issued a new EHC Plan which Ms X has appealed. As set out above, this is outside my investigation and the Ombudsman’s jurisdiction.
37. The Council accepted it delayed referring D for bereavement support and offered an extra remedy of £250. I consider this is a suitable remedy and response from the Council.

Delay in the complaints process

38. The Council accepted there was a delay in the complaint process and offered a financial remedy of £150. I calculate the stage one response was around seven weeks delayed. The stage two response was within the 65 working day deadline. I consider the remedy offered by the Council is in line with the Ombudsman’s guidance on jurisdiction, it is a reasonable remedy.

Lack of transparency

39. In conversation with me, Ms X said she felt misled by the Council and it has not been transparent. She told me the Council said it could not name a specific special school in the EHC Plan and she would need to appeal this to the Tribunal.
40. The EHC Plan named only the type of school and did not name a specific school. I asked the Council about this. The Council said it told Ms X it could not name her preferred education setting as it said it was not suitable or compatible in its response to the consultation. Following a further consultation, the school said it was suitable but incompatible with the effective education of others. It could therefore not name this school in the EHC Plan. The Council told the family if they wanted a specific school they could appeal to Tribunal.
41. While I understand Ms X’s frustration, I cannot find the Council at fault. It consulted with the school and is not responsible for the schools responses. The Council can specify a type of school rather than naming a specific school in the EHC Plan. This then gives the parent opportunity to appeal the Plan to the Tribunal to prevent further delay, as the Council has done here. The Council is not at fault for doing this.

Lack of communication and record keeping

42. In its complaint response, the Council accepted its communication and record keeping was poor and said it would review measures to improve this for everyone that use the service.
43. The Council said it introduced weekly phone calls to the family. It assigned the family a coordinator, and managers are supporting communication. Ms X said mistakes still happen but communication had improved. She thought the improvement was because senior staff were involved.
44. The Council also said it is drafting a communication charter and is providing continuing service training to improve communication.
45. While I appreciate this is a work in progress as the Council is still working to improve communication, from the information I have seen, the situation for Ms X is better than it was. The Council has apologised and put measures in place. I consider this is a suitable response.

Summary of fault causing injustice

46. The Council has accepted it is at fault for failing to provide a suitable education and bereavement support, poor communication and failing to keep the family updated. It also accepts it delayed responding to her complaint. The Council apologised for the faults and offered a financial remedy. The remedy is in line with the Ombudsman’s guidance on remedies and I consider this a satisfactory response.
47. The Council has issued a new EHC Plan which Ms X has appealed to the Tribunal. This is outside the Ombudsman’s jurisdiction.

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Decision

48. I find fault causing injustice which the Council has already accepted and remedied.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman