Summary: the Council recognises that it should have done more to ensure Ms M’s son, B, received a suitable education between November 2018 and April 2019. The Council has offered to fund additional tuition. This is a suitable remedy.

The complaint

1. Ms M complains her son, B, has missed a considerable amount of education since 2017. She complains the Council delayed amending his Education, Health and Care (EHC) Plan following the 2018 annual review. Ms M is dissatisfied with the Council’s response to her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. I have considered:
• information provided by Ms M; and
• information provided by the Council.
8. I invited Ms M and the Council to comment on my draft decision.

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What I found

9. Ms M’s son, B, has autism. He attended a Community Primary School until November 2016. He then attended Liverpool's Primary Pupil Education Centre where the Council carried out an EHC needs assessment and issued an EHC Plan. The Plan said B would attend a Community Special School and a place was available for him from November 2017. However, I understand Ms M did not consider the school suitable and B did not attend.
10. The Council held an annual review of B’s EHC Plan in November 2018 and decided B needed a different school. The Council consulted other special schools in November and December 2018. No local schools could accept B, so the Council began to look at schools in neighbouring areas. The Council offered tuition from a specialist home tuition and engagement service from April 2019. In September 2019, B started at a Community Special School. The Council says he has settled in well and is making good progress.
11. Unhappy with her dealings with the Council, Ms M complained. She also instructed a solicitor. The Council responded to her complaint on 15 July 2019.
12. In August 2019, Ms M complained to the Ombudsman. She said she wanted compensation for the education B had missed.

Consideration

The 2017 – 2018 school year

13. In 2017, the Council enrolled B at a Community Special School. I understand B attended very little, if at all. Ms M did not consider the school was suitable for B’s needs.
14. I do not intend to investigate B’s absence from school or the education he missed in the 2017 – 2018 school year for two reasons. First, it was more than 12 months before Ms M complained to the Ombudsman, so the complaint is out of time. Second, the reason for B’s absence appears to be Ms M’s disagreement with the Council about the suitability of the school. Ms M had a right of appeal to the Special Educational Needs and Disability Tribunal if she disagreed with the school chosen by the Council. Only the Tribunal can decide whether a school is suitable when parents and council disagree. The Ombudsman has neither the authority nor the expertise to make these decisions.

The 2018 – 2019 school year

15. The annual review of B’s EHC Plan which took place in November 2018 recognised that B needed a different school. The Council began a search for a suitable school. When no school could be found in Liverpool, the Council began to look in neighbouring areas. The Council eventually found a place in a Community Special School where B started in September 2019.
16. B remained on roll at the first Community Special School until April 2019. The Council says the headteacher offered to send work home, but Ms M declined. When the Council removed B from the school roll in April 2019, it arranged for a specialist home tuition and reengagement service to provide tuition for him.
17. In response to my enquiries, the Council recognised that it could have done more to ensure B received suitable education between the November 2018 annual review of his EHC Plan, when it became clear he was not attending school and needed a new school, and April 2019 when it commissioned home tuition for B.

Agreed action

18. We have 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 makes a symbolic payment to acknowledge the impact of the fault.
19. The Council has offered to pay for additional tuition or support for B, organised by his school, up to the value of £750 to acknowledge the delay in arranging alternative education. The Council believes this is the most suitable way to ensure that B receives the support he needs to meet his educational targets. The Council has confirmed the school is willing to identify suitable provision.
20. I agree the Council should have done more to ensure B received suitable education between November 2018 and April 2019. However, I note B still had a school place available, and even though he did not attend, the school offered to send work home for him. Taking all of the circumstances into account, I consider the Council’s offer to fund extra tuition to the value of £750 is an appropriate remedy for the injustice caused by the lack of tuition.

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Final decision

21. I have ended my investigation. The Council has acknowledged its mistakes and proposed a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman