Summary: Mrs B complained the Council failed to provide a school place for her son and its communication was poor. We found there was fault by the Council in its communication with Mrs B. It has offered a suitable remedy.

The complaint

1. The complainant whom I refer to as Mrs B, complains her son X is out of school and he has had no primary school place from September 2019. She also complains about the Council’s communication with her and its complaint handling.

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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. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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. Caselaw has established that where someone may appeal or has appealed to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of alternative education after the date of the final EHC Plan. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407).
7. Therefore, I cannot investigate the matters relating to the school placement or provision named in the statement because they were, or could have been subject to appeal. I cannot investigate the lack of alternative education.
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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How I considered this complaint

9. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have 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 their comments before making a final decision.

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What I found

10. Mrs B’s son X attended pre school and was due to start primary school in September 2019. Mrs B had accepted a reception place at a mainstream school. However, during 2019 the pre school found it difficult to cope with X’s behaviour because he had no sense of danger. In April Mrs B says she took X out of pre school by mutual agreement. And in June the mainstream school withdrew the place offered because it could not meet X’s needs.
11. The Council had started assessing X for an Education and Health Care Plan in late March. The Council issued a draft EHCP in June 2019. The plan named a type of school placement in a special school for children with social emotional and mental health needs (SEMH), but not a specific school. Mrs B disagreed with Council’s draft plan as she wanted X to go to a mainstream primary. The Council maintained an SEMH school was appropriate and issued a final EHCP in July.
12. In late May X was diagnosed with Autistic spectrum disorder (ASD). The Council received a copy of his diagnosis in late July. The Council’s decision making panel reviewed the type of placement and decided that a special school for pupils with ASD was appropriate for X. The Council issued a revised final EHCP in August 2019. This named a type of placement in a High COIN (communication and interaction needs) special school. The EHCP also stated that if X was placed in a mainstream school, 32.5 hours of one-to-one support would be provided.
13. The Council contacted a number of special schools with specific provision for communication and interaction needs from June 2019. It also approached mainstream schools with units for children with SEN. However, all the schools approached were full or unsuitable. In September 2019 Mrs B’s case worker left and a new one took over.
14. At the end of September Mrs B complained to the Council. She said the Council had not contacted the schools it said it had, because the schools told her the Council had not approached them. She said the caseworker failed to update her and the new case worker had not contacted her at all.
15. In October 2019 a mainstream school (school C) agreed to offer X a place. It invited Mrs B to an induction meeting. However, Mrs B would not accept the place as the school had rejected the Council’s approaches twice and it explained to her it would find it difficult to keep him safe.
16. Mrs B complained to the Ombudsman about the way the Council was dealing with her son’s education and special needs. We passed the complaint back to the Council, as it had not been through the Council’s procedure.
17. The Council replied to Mrs B’s complaint on 13 November 2019. This was a late response 10 working days longer than the timescales set out in its procedure. The Council apologised for its delay. It said it had consulted a wide range of special schools, but they did not have any places available or they were not suitable. It said that it then approached mainstream schools and had identified one which was suitable, school C. The school had offered X a place, but Mrs B did not accept because she did not feel it was the right setting. The Council noted Mrs B’s reasoning but suggested that she took up the offer of a transition meeting.
18. Mrs B emailed the Council in November regarding its reply. She said the Council gave the wrong name for X in its response and the wrong name for her in its acknowledgement letter. She said the one school which offered a place was forced to do so by the Council, and it was not suitable. She asked why the Council didn’t insist on a more suitable special school offering a place. She maintained the Council had not contacted the schools it said it had, as when she spoke to the schools they had not heard of X. She said the Council had not given her details of the schools it had approached and did not communicate with her.
19. The Council apologised for its errors in the names it gave and proposed a meeting. Mrs B attended the meeting, however, following this she contacted the Council in December to say it had not kept her updated as promised. She also referred to a school which she had identified could be suitable for X and may have a place. It is not clear whether the Council responded to this.
20. In January 2020 Mrs B complained again regarding the delay in getting a school place for her son. The Council registered this as a further stage one complaint.
21. In mid January, Mrs B asked the Council to reassess X’s EHCP. The Council said it would put this to its Panel.
22. The Council responded to Mrs B’s complaint on 22 January within its complaint procedure timescales. It accepted that its communication with Mrs B was not the expected standard and apologised for this. It noted she had requested that the Council reassessed X’s EHCP and confirmed that the Education, Health and Care Governance panel would consider this shortly. The Council stated its records showed it had consulted with a considerable number of schools but had not been successful in obtaining an offer of a place aside from school C. the Council asked Mrs B’s views about approaching schools for a reception place for X starting in September 2020. The Council also offered Mrs B £150 in view of her time and trouble in pursuing her complaints.
23. On 29 January Mrs B complained further. She said the Council had apologised for its poor communication, but it had still not updated her. She explained that X was now depressed because he did not have a school place and his health was being affected. She said she had identified a suitable school in December, and the school said it was willing to consider a place for X. But it said that it had not heard from the council. She also said that she wanted X to go to school in September 2020 but he should have a school place before that. She said X would be a year behind and with children who were younger than him. She said that the Council’s offer of £150 was insulting.
24. The Council responded to an enquiry from Mrs B’s MP in January. It said it did not have a responsibility to X until September 2020 according to the Department of Education guidance regarding compulsory school age.
25. The Council’s panel considered Mrs B’s request for a reassessment in early February. It rejected the request because it said it could carry out a review in a shorter timeframe than a reassessment.
26. Later in February the Council responded to Mrs B’s complaint of 29 January. It noted it had given the wrong information about compulsory school age in its earlier letter. This was because legislation states that Council must make educational provision for children with SEN. It apologised for this error. However, the Council noted that matters regarding provision for X were moving forward because the Panel would decide whether his plan should be reassessed.
27. In March 2020 Mrs B appealed to a tribunal regarding the Council’s decision not to reassess X’s EHCP, the type of provision, and later the school the Council named when considered it found a suitable place.
28. In July 2020 the tribunal decided to dismiss Mrs B’s appeal.

Analysis

29. I have considered whether there was delay in issuing a final EHCP in July 2019. As the process started in late March and the final EHCP was issued in July, I do not consider there was any delay as it was completed within 20 weeks which is within the set timescales. The EHCP was revised in August 2019 after the Council received X’s autism diagnosis late in July. There was no delay here.
30. Mrs B says that the Council did not approach some schools. She states that when she contacted some schools, they said the Council had not contacted them. I can see that the Council contacted a significant number of schools in the evidence the Council provided. It appears the Council took appropriate action to find a school starting in June 2019. I have not found fault here. It is not clear why some schools said the Council had not contacted because there is evidence of numerous approaches to schools, including the ones that Mrs B says were not contacted. However, it appears that at certain points the Council did not update Mrs B or let her know which schools had been contacted or their responses.
31. The Council agrees it did not communicate well with Mrs B. In addition to failing to provide updates regarding schools approached, it did not respond within the required timescale to her initial complaint. I consider there was also fault by the Council in its handling of Mrs B’s complaint because it should in my view, have responded to her email of 14 November 2019 as a complaint. I do not consider it should have treated her complaint in early January as another stage one complaint because it related to the same issues she has raised in her stage one complaint in September 2019. This extended the complaints process and put Mrs B to further time and trouble. I note the Council also gave the wrong information about statutory school age for X. But it quickly recognised this and apologised.
32. In its response to my enquiries the Council offered an increased remedy for its poor communication. It offered £300 for Mrs B’s time and trouble and the time spent meeting officers. It offered a further £300 for the distress caused by its poor communication. I consider that this is an appropriate remedy.
33. As I explained in paragraphs 6 and 7, I cannot consider the type of placement and provision set out in the final EHCP of August 2019, the school named by the Council as a placement, or the provision of alternative education for X.

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Final decision

34. There is fault by the Council. The Council should pay the agreed remedy within 6 weeks. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman