Summary: there was delay by the Council amending B’s Education, Health and Care (EHC) Plan. This delayed Ms M’s right of appeal against the Council’s decision B should attend School 2. However, there was a place available at School 2, and the Council provided home tuition when B did not take up the place.

The complaint

1. Ms M complains about her son, B’s education. She is unhappy with her dealings with the Council which led to B attending School 1, a special school in a neighbouring council area, in 2016.
2. B stopped attending School 1 in October 2017 and has not returned to school. Mrs M complains about the school B has missed and the delay in arranging a new school place for him.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question a council’s decisions simply because the complainant disagrees with them. We must consider whether there was fault in the way the decisions were reached. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate a complaint once someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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)
8. If we are satisfied with a council’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

9. I have considered:
• information provided by Ms M;
• information provided by the Council;
• the Education Act 1996;
• the Children and Families Act 2014;
• the Special Educational Needs and Disability Regulations 2014;
• Out of school… out of mind? How councils can do more to give children out of school a good education, published by the Ombudsman in September 2011;
• Guidance on good practice: remedies, issued by the Local Government Ombudsman in 2018;
10. I invited Miss M and the Council to comment on my draft decision.

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What I found

11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
12. The procedure for assessing a child’s special educational needs and issuing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
13. A Plan should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child’s Plan.
14. The law says that Councils must name a parent’s preferred school in their child’s Plan, so long as the school is suitable and the child’s attendance would not be an inefficient use of resources. (Children and Families Act 2014, section 39)
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.

Education for children who do not attend school

16. Councils have a duty to “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each child and be able to demonstrate how it made its decision.
18. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
19. The law does not define full-time education. A child of B’s age would normally be at school for 25 hours per week. However, Government guidance recognises that if children receive one-to-one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
20. The Ombudsman has issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, first published by the Ombudsman in September 2011)

What happened

21. Ms M’s son, B, joined School 1, a special school for children with social, emotional and mental health difficulties, in November 2016.
22. The Council issued an Education, Health and Care (EHC) Plan in January 2017 which said B would attend School 1.
23. The Council says it made changes to B’s EHC Plan on 20 July and again on 3 August 2017. It commissioned an independent sensory occupational therapy report on 31 August 2017. The assessment took place on 6 November 2017. The Council asked for further advice from an Educational Psychologist. An Educational Psychologist visited B at home on 6 November 2017. The Council says its intention was to use this information at the annual review of B’s EHC Plan to inform future placement decisions.
24. Ms M says School 1 could not meet B’s needs. She says he became more violent and it became increasingly difficult to get him to school. Ms M says B last attended School 1 on 6 October 2017.
25. School 1 held an early annual review meeting on 23 October 2017.
26. The Council says it learned there were problems with B’s attendance at School 1 on 25 October 2017 when the school transport reported B had refused to travel since 6 October 2017. The Council told the transport to continue to call for B.
27. The Council says it received the paperwork from the annual review meeting on 10 November 2017. The paperwork said B needed a new school. The Council agreed. The Council consulted School 2, another special school for children with social, emotional and mental health difficulties. On 14 November 2017, School 2 offered B a place. The Council told Ms M there was a place for B at School 2 on 30 November 2017. Ms M does not consider School 2 is suitable and asked the Council to consult four other schools instead. The Council agreed. The Council arranged home tuition for B, starting on 5 December 2017, for three hours a day, twice a week. In January 2018, the home tuition increased to three hours a day, four days a week. School 2 withdrew the offer of a place on 22 January 2018.
28. The Council consulted a number of different schools between November 2017 and June 2018 to see if they could meet B’s needs.
29. The Council issued a proposed amended Plan on 10 July 2018. The Council issued a final amended Plan on 25 July 2018. The final Plan said B would attend School 2. Ms M does not want B to go to School 2 and has appealed to the Tribunal. A hearing took place in February 2019.
30. B did not go to School 2. Home tuition continued until December 2018 when the tutors gave notice. The Council says there has been a place available for B at School 2 since September 2018.
31. Ms M complained to the Council. Dissatisfied with the Council’s response, Ms M complained to the Ombudsman. She explained in detail why she is dissatisfied with her dealings with the Council and the Council’s response to her complaint. I have carefully considered everything she said, but I have not addressed every complaint she made. I have focussed my investigation on B’s absence from school.

Complaint 1: events leading to B starting at School 1

32. Ms M complains about events leading to B starting at School 1 in 2016 and his first EHC Plan in January 2017. Ms M complains the Council did not consult her preferred school, an independent special school. Ms M says B started at School 1 before the Council issued his Plan and complains this prevented her from appealing to the Tribunal for a different school. She found her dealings with the Council frustrating.
33. In response to her complaint, the Council explained that its practice at the time was to consult local special schools first, then special schools in neighbouring authorities and only if these were not suitable would the Council consult independent schools. The Council says Ms M accepted the place at School 1, so it was not necessary to consult her preferred independent school. The Council recognises this is wrong and says that it now consults a parent’s preferred school at the same time as other schools, regardless of their status.
34. The Council was wrong not to consult Ms M’s preferred school and should have consulted all schools at the same time. When the Council issued B’s EHC Plan in January 2017, Ms M could, however, have appealed to the Tribunal if she was unhappy with School 1. Ms M did not appeal, so I cannot say the fault by the Council has caused an injustice and there are no grounds for me to investigate the matter further. Nevertheless, I acknowledge the frustration that Ms M’s dealings with the Council at this difficult time no doubt caused.

Complaint 2: events following the breakdown of B’s placement at School 1

35. Mrs M complains about the school B has missed and the delay in arranging a new school place for him since he stopped attending School 1 in October 2017.
36. In its response to Ms M’s complaint, the Council acknowledged that it had taken a long time to find a new school for B. The Council said, “[s]ome of this delay has been due to many schools being consulted, in what appears to be a piecemeal way, slow responses from schools and subsequently schools not being in a position to offer a place due to the complexity of [B’s] needs.”

Consideration

37. When B stopped attending School 1, the Council agreed that he needed a new school and agreed to amend his EHC Plan.
38. Regulations say that when a Council decides to amend an EHC Plan following a review, it must issue a final Plan as soon as practicable and in any event within 8 weeks of giving the parent notice of the Council’s intentions to amend the Plan. The Council decided to amend B’s Plan on or about the 10 November 2017 when it received the head teacher’s report following the early annual review. It should have issued a new EHC Plan, and identified a suitable placement, at the beginning of January 2018. The Council issued B’s new Plan on 25 July 2018. This was almost two terms late. This delay was fault.
39. The delay has had an impact on B. He should have been back in school in January 2018. However, Ms M and the Council disagree about which school that should have been. The Council thinks School 2 is suitable. Ms M does not. The Ombudsman cannot say who is right. Ms M has appealed the Council’s decision and the Tribunal will decide. If the Council had issued B’s new Plan without delay, Ms M would have been able to appeal to the Tribunal sooner.
40. The Ombudsman can only consider Ms M’s complaint until she lodged her appeal. This means I can only consider B’s education until the end of the summer term in 2018.
41. Although B has been out of school, he has not been without education or the offer of a school place. The Council offered B a place at School 2 on 30 November 2017 and again for the beginning of term in September 2018. Ms M declined both offers. The Council has provided home tuition instead. The Council has not provided evidence that the amount of tuition was tailored to B’s needs. The Ombudsman expects councils to consider each individual child’s needs and tailor the provision to the child’s needs. Failure to do so would be fault. However, from January 2018 until Ms M lodged her appeal, B has received 12 hours of one-to-one tuition per week. While this is not the same as being at school, it is a significant amount of education.
42. In conclusion, fault by the Council – the delay in amending B’s EHC Plan – has caused B injustice. He received education at home for two terms when he should have been back in school. Although Ms M and the Council disagree about which school B should attend, the Council should have made a decision by the beginning of January 2018. The Council did not make the decision until 25 July 2018. Ms M has appealed the Council’s decision and decided not to send B to school until the Tribunal has made a decision about which school B must attend. This is her choice. The Ombudsman cannot consider what happens during the appeal. However, without the Council’s delay, it is likely she would have had the Tribunal’s decision two terms earlier.

Agreed action

43. The Ombudsman has published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of B, we may recommend the Council apologises. We may also recommend the Council takes action to improve services for others.
44. In its response to my enquiries, the Council recognised it was at fault for the delay in amending B’s EHC Plan. The Council explained the changes it has already made to its processes to avoid this happening again and said it would like to apologise again to Ms M. I welcome the Council’s openness and its willingness to put matters right.
45. I recommend the Council apologise to Ms M and B for the two-term delay in amending B’s EHC Plan. The Council accepted my recommendation.

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Final decision

46. The Council accepts my findings and recommendations, so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman