Summary: Mrs B complained that the Council failed to provide education for her son, C, since 2016. We find the Council made reasonable efforts to provide education since 2018 and made a backdated payment to recognise the impact on C. The Council delayed in responding to Mrs B’s complaint which caused frustration and time and trouble. The Council has agreed to pay Mrs B £150.

The complaint

1. Mrs B complained that Derbyshire County Council (the Council) failed to provide an appropriate school place for her son, C since 2016. Mrs B had to give up her job to educate him and the situation had a significant adverse impact on the family finances.

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What I have investigated

2. I have investigated the events from January 2018, which is 12 months before Mrs B first complained to us. I consider it was reasonable for Mrs B to have complained to us sooner about the older events and some of them took place during an appeal to the Tribunal.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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

8. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received 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

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and the arrangements which should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Alternative education

12. The Education Act 1996 (Section 19) states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.

What happened

13. Mrs B’s son C has been diagnosed with a number of conditions affecting his mental health. Following C’s exclusion from a secondary school in September 2017 Mrs B appealed to SEND. In January 2018 a part of the appeal process, the Council agreed to her choice of school (an out of area residential school) and C started there. The Council issued C’s final amended EHCP on 5 March 2018 naming the residential school. C experienced problems at the school and all parties agreed at an annual review in May 2018, that C would not return to the school.
14. In May 2018 it started the EHCP amendment process and started to consult with other schools. It sent C’s details to three schools in May 2018. One said it could not meet C’s needs. One offered an assessment, but the visit was cancelled by Mrs B due to illness. She did not rearrange the visit because after providing more information to the school it said it could not meet C’s needs. The third offered a place from January 2019 but Mrs B did not wish to pursue this due to distance and time.
15. A national tutor service visited C at home at the end of June 2018 to discuss a tutor package. C did not feel able to join the room during the visit and the tutor proposed short visits in the first instance to build up a relationship with C. This started in September 2018: up to six hours a week over two visits. The Council says that C struggled to engage with tutoring for some time. Mrs B says this was due to the extent of C’s trauma from his previous educational experiences. She said he only managed two hours a week during 2018/19.
16. In November 2018 the Council started to pay an annual personal budget of £1122 to provide access to physical activities in the local community and work experience at a local farm, which Mrs B had sourced and arranged. It also consulted with three more schools. One did not respond, a second Mrs B did not wish to pursue as it was too far away and the third was unable to meet C’s needs.
17. In December 2018 the Council paid Mrs B a lump sum to cover the period from May to November 2018 during which C had been without education. It also consulted with two more schools, but neither had places available.
18. The Council said during this period it also offered support from the Council’s Integrated Pathways Team and through a tailer-made programme, but Mrs B did not consider they were appropriate.
19. Mrs B complained to us in January 2019. We sent the complaint back to the Council as premature. The Council responded to Mrs B’s complaint on 15 February 2019, but Mrs B did not receive the reply.
20. The Council detailed the efforts it had made to provide education for C, noted it had arranged for tutor provision and funded other education arrangements via a personal budget. It said the consultation process was ongoing and the Council would chase up outstanding responses. It did not uphold this part of the complaint. It did agree that its communication had been slow and that staffing issues had affected the service provided.
21. The Council consulted with a different school (sourced by Mrs B) in April 2019, which said it could meet C’s needs and, after discussion with the Council over costs and provision, it offered a place to C. Mrs B says she has visited/contacted 31 schools since 2017.
22. Mrs B complained again via her MP on 23 April 2019 and chased up a response to her complaint on 15 May 2019. The Council sent a copy of its previous response. The same month Mrs B also queried the content of the EHCP as not being detailed and specific enough. The Council responded to the MP in June 2019 saying that a place had been identified for C and he would be starting in September 2019. In the meantime, Mrs B had requested to escalate her complaint.
23. Mrs B met with a Council complaints manager on 1 July 2019 and agreed mediation to discuss any outstanding points and reach an appropriate resolution. In August 2019 the Council sent a further response to her complaint. It said it was awaiting Mrs B’s comments on the sixth version of the EHCP which it had sent to her on 19 August 2019. It closed her complaint. Mrs B said the response did not cover any of the points she had discussed with the complaints manager.
24. C attended the new school for one month but since 4 October 2019 he has not left the house and is under the care of the GP.
25. In October and November 2019 Mrs B requested a response to her stage two complaint. She said the Council had not offered any additional support or education.
26. The tutor service started sessions with C at home in January 2020 for ten hours a week. Mrs B complained to us again in January 2020. She said the funding was in place but the tutors were not. The Council said it had closed Mrs B’s complaint in error. It had already contacted Mrs B to ascertain her disagreement with the previous responses and would now make a final response to Mrs B.
27. On 12 February 2020 the Council wrote to Mrs B. It repeated the chronology of events and said it had given C a lump sum to cover the education missed from May to November 2018. It repeated the information in the EHCP detailing the provision arranged for C at the new school, including a daily mentor, a 1:1 full-time specialist teacher and training a therapy dog. The Council acknowledged Mrs B’s frustration but considered it had made significant efforts to find C a school place. Mrs B said none of the additional provision detailed in the EHCP had been put in place at the school which contributed to the failure of the school place.
28. In March 2020 the Council undertook an annual review of his EHCP. The plan was for him to reintegrate into the school but unfortunately this has not been possible.
29. In September 2020 the school said it could no longer meet C’s needs and Mrs B agreed that C could no longer attend due to his anxiety. C was still receiving tutoring and had been successfully working towards GCSE physics. The tutor was trying to introduce a new GCSE subject and C wants to take five more GCSEs in June 2021.
30. In October 2020 Mrs B requested that C receive an additional 10 hours of tutoring on top of the existing 10 hours. She also wanted Education Other Than At School (EOTAS) named on his EHCP and a continuation of the personal budget payments.
31. The Council said it was happy to increase the tutoring support up to 20 hours a week but it was not a solution: C needs a progressive plan with the opportunity to build skills, confidence and resilience. At C’s annual review in mid-October 2020 the Council agreed to extend the support offered to C via the tutoring service and an education package to be delivered by EOTAS.

Analysis

32. Once it was clear C could not return to school in May 2018 the Council acted promptly to carry out a review of C’s EHCP and consulted with three schools. It also engaged the tutoring service which met with Mrs B and C in June 2018, but C struggled to engage with this for some time. Tutoring sessions did not start until September 2018. So, although C was without education from May to July 2018, I do not consider this was due to fault by the Council.
33. C was out of education for the whole of the academic year in 2018/2019. The Council had arranged a tutoring package which was in place from September 2018 but only for six hours a week. Mrs B says C only received two hours at this time. The Council agreed this was insufficient for a child of C’s age but there was evidence C could not manage greater provision. The Council also continued to look for placements (some of which Mrs B rejected even though they could offer a place to C) and explored other options. I cannot identify fault with its approach.
34. In November 2018 the Council started to pay a personal budget to provide educational activities for C. It backdated the payment to May 2018 to recognise that C had been without education since May 2018. I consider this was a reasonable attempt to provide some extra support for C.
35. In June 2019 the Council, with Mrs B, found a new placement which started in September 2019. Unfortunately, C only managed to go for one month. The Council increased the tutoring provision in January 2020 and has agreed in principle to increase this further to help C with his GCSE courses. I cannot find fault during this period.
36. There was initially some delay in Mrs B receiving a copy of the stage one complaint, but I cannot conclude this was due to fault by the Council. It responded promptly when it received a complaint from Mrs B’s MP in April 2019.
37. However, it accepts it closed in error Mrs B’s request for stage two complaint in October 2019, prompting her to complain to us in January 2020 and resulting in a further response in February 2020. This delay caused frustration, in addition to time and trouble, for Mrs B.

Agreed action

38. In recognition of the injustice caused to Mrs B by the delay in the complaints process, I asked the Council (within one month of my final decision) to pay her £150.
39. The Council has agreed to my recommendation.

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Final decision

40. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman