Summary: The complainant alleged that, since November 2018, the Council failed to find her son a suitable special school and failed to provide suitable alternative education during this period. The Council had accepted some fault. However, the complainant considered the Council had not fully recognised all the faults and the adverse impact on her son and on her by its errors. The Ombudsman accepts that this is the case. The Council has agreed the recommended actions to remedy the injustice.

The complaint

1. The complainant, who I refer to as Ms X, complained that,
1. since November 2018, the Council failed to name a suitable special school in her son’s (Child B’s) Education, Health and Care (EHC) Plan, even though it promised to do so. Child B started at a special school in 2021, a school which Ms X had requested initially, after Ms X had appealed to the Special Educational Needs and Disability (SEND) Tribunal.
2. since November 2018, Child B has received very little education.
2. Ms X says that, as a result, she has been caused avoidable distress and frustration and unnecessary cost because she was forced to educate Child B at home. Ms X says that Child B has missed out on an education for the past four years.

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What I have investigated

3. I am investigating matters from November 2018 to March 2020 when the Council says that Ms X received a final amended EHC Plan, although it did not name a placement at this stage.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
5. 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)
6. 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)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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)
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 report with Ofsted.

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How I considered this complaint

10. I made enquiries of the Council and considered Ms X’s additional comments. I have spoken to Ms X on the telephone.
11. The Council has considered Ms X’s complaint under its two stage complaints procedure. In July 2020 it accepted that there had been avoidable delay in placing Child B in a special school (complaint (a)) and that he had had limited education (complaint (b)) since November 2018.
12. The Ombudsman will not normally reinvestigate matters if he considers that the Council’s investigation has been fair and identified the main faults. This is the case in this complaint.
13. I have exercised the Ombudsman’s discretion to investigate complaints from November 2018, even though Ms X had not complained to us within twelve months of when she realised something had gone wrong. This is because the Council had made promises to her that it would find Child B a special school and she had no reason to doubt those promises.
14. Ms X also had a right of appeal to a SEND Tribunal in November 2018 when Child B’s final EHC Plan was issued. Ms X did not appeal. However, I exercised the Ombudsman’s discretion to investigate because Ms X thought there was no need to appeal given the Council’s promises to find a special school for her son.
15. I issued a draft decision statement to Ms X and the Council, and I have taken into account their additional comments when reaching my final decision.

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What I found

Special educational needs

16. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25.
17. Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care Plan (EHC Plan). The council has a duty to ensure it is in place and is maintained.
18. Once a draft EHC Plan has been issued, parents/carers are entitled to request a particular educational placement.
19. Councils should name the placement requested unless they believe that the placement would not meet the needs of the child, would be incompatible with the efficient education of others and incompatible with the efficient use of resources.
20. Section 41 of the Act states that the Secretary of State may approve an institution for the purposes of it enabling the institution to be the subject of the request to be named in an EHC Plan. In certain cases, councils can direct a school to take a pupil where it is considered its reasons for refusing admission are not reasonable.
21. Section 9.83 of the Special Educational Needs and Disability Code of Practice 2015 (the Code) states that, once a school placement is named in the final EHC Plan, the pupil must be admitted to that school.

Annual reviews

22. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
23. EHC Plans must be reviewed, as a minimum, every 12 months. The council must inform parents within four weeks of the review, whether it will amend the EHC Plan, keep it as it is or cease to maintain it. Councils should notify the parents, young person and school of its decision.
24. Where the council is considering amending an EHC Plan, following a review, it must do this without delay. It must send the child’s parent or the young person a copy of the EHC Plan together with a notice specifying the proposed amendments, together with copies of any evidence which supports those amendments.
25. Once a draft EHC Plan is issued, councils have eight weeks to issue the final EHC Plan.

Appeals

26. Parents can appeal to the SEND Tribunal when a council refuses to carry out an EHC needs assessment, refuses to issue an EHC Plan or a parent is dissatisfied with the final EHC Plan, and the school named. Appeals must be made within two months of the disputed decision.

Children out of school because of medical needs

27. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
28. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education.
29. The guidance states that: “We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.”
30. If medical evidence is not quickly available, the statutory guidance states councils “should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
31. Further, the guidance says that “councils should be ready to take responsibility for any child whose illness prevents them attending school for 15 days or more”.
32. 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))
33. 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)

Case law regarding section 19 alternative educational provision

34. In G v Westminster City Council [2004] (followed more recently in DS v Wolverhampton City Council [2017], the Court of Appeal stated:

“It seems to us that ‘otherwise’, where used for the second time in [section 19, Education Act 1996], is intended to cover any situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling”.

35. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
36. In R v Croydon Council [2015], the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The Court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to arrange alternative education would be triggered, and alternative provision should be made pending finding a suitable school.

What happened

Complaint (a): Failure to place in a special school

37. Child B started at a mainstream school, School Y, in June 2018 (aged nine years old). Ms X says that Child B was placed almost immediately on a reduced timetable. School Y requested an assessment of his possible special educational needs (SEN).
38. In November 2018, it was agreed that Child B could not manage at School Y. Ms X says that he only attended one hour per day, two or three times per week. And most of this time, Child B spent his time in the sensory tent. The Council has accepted that this was the case.
39. Child B’s final EHC Plan of 30 November 2018 stated that he required a special school. But it did not name one. Ms X says that the Council promised her it would find one soon.
40. The EHC Plan stated that Child B has an autistic spectrum disorder (ASD), changeable mood and restrictive and repetitive practices. Child B’s difficulty in managing a classroom setting was noted.
41. Ms X expressed a preference for a special school, School C. However, it was not until December 2020, after Ms X appealed the July 2020 amended final EHC Plan, that the Council finally agreed to name School C as Child B’s placement.
42. School C is a non-maintained special school. It caters for pupils with ASD from the ages of three to sixteen and has a therapy pool and sensory room. Child B particularly likes swimming. School C provides a tailored made educational programme for its pupils. Ms X considered this school would meet Child B’s needs.
43. The Council consulted School C in November 2018 and in January 2020. On both occasions, School C declined to admit Child B.
44. The Council has provided evidence of its consultations and email correspondence with various other special schools during the period of November 2018 to August 2020. It appears that all the schools stated that they were unable to provide for Child B’s SEN or Ms X considered they were not suitable. However, she was willing to explore options.
45. The Council says that it offered to place Child B at a school in November 2018 and it could have directed that it took Child B, but it did not. Ms X says that the Council did not offer a place.
46. The Council initially said that it could not direct School C or another special school, in which Ms X expressed an interest, because they did not appear on the section 41 list approved by the Secretary of State. However, the Council has now confirmed that it could have directed School C to admit Child B.
47. There was an annual review of Child B’s EHC Plan in November 2019. The minutes record that School C had been consulted but it had not provided reasons why it would not admit Child B.
48. The Council issued a draft EHC Plan in December 2019 after the annual review. The Council says that a final amended EHC Plan was issued in March 2020 and Ms X was told of her right of appeal at this point.
49. The Council has accepted that there was ‘an exceptional delay’ in sourcing appropriate educational provision. The Council has apologised. It says that it has now provided additional resources to the SEN team.
50. Ms X says that the Council kept making promises to her that it would place Child B at a special school. In particular, in June and September 2019, she was told this by officers. Ms X also considers that the Council failed to tell her why the schools were refusing to admit Child B, particularly in relation to School C.
51. In the Council’s July 2020 stage two complaint response, it explained to Ms X the reasons why School C had been unwilling to admit Child B. These were broadly his lack of ability to engage in learning, difficulties managing standard classroom activities, his significant emotional reaction to learning whereby he can shout and scream and that he seemed to have a phobia of paper.
52. The Council says that it had challenged School C’s decision not to admit but without success. The Council told Ms X that, as part of its sufficiency planning, it had now increased its provision of local specialist providers.
53. In July 2020, the Council told Ms X that it had identified a placement for Child B, a specialist resource within a school. It told her that this would be the named placement. On 21 July 2020, the Council named this placement in Child B’s final amended EHC Plan. Ms X appealed this EHC Plan.
54. Ms X also says that the Council failed to tell her of its powers to direct a school to admit Child B. She only found out of this power when she sought legal advice and obtained legal aid to pursue a SEND Tribunal hearing.

Alternative education

55. The Council accepted in its stage two complaint response that Child B had received limited education when at School Y, as described by Ms X.
56. In September 2019, the Council arranged for Child B to receive education from its interim education provider, Provider Z. Ms X says that Provider Z did not provide any formal learning to Child B and he spent most of his time going for walks in the community. Ms X says that the staff kept changing and this was distressing for Child B. He also found being in the community difficult because of the loud noises and busy environments.
57. The Council has said that Provider Z can be very successful in reintegrating pupils back into schools in certain cases. This is its main function. But the Council recognised in its July 2020 stage two complaint response that Child B required a ’set regime, clear structure and expectation’. And by implication Provider Z could not provide this.

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Findings

Complaint (a)

58. Ms X considers that, given School C has now accepted Child B, it might have been possible for the Council to have placed him there sooner.
59. There is a clear delay in placing Child B at a special school, be it at Ms X’s preferred school or not. The Council did have the power to direct a special school, and School C, to admit Child B if it considered that school would be suitable. I recognise councils may be reluctant to do this. But this is an option which I consider the Council should have considered, but there is no evidence that it did. That is fault.
60. I also consider that the Council should have enquired about the reasons School C refused to admit Child B. Had it done so, the Council would have had an opportunity to challenge the refusal of a place at this point, although I could not say what the outcome would have been.
61. The Council did make promises to Ms X that it would find a special school, promises which it could not keep. That was misleading and amounts to fault. Had such promises not be made, it is likely Ms X would have appealed the November 2018 EHC Plan because the Council had failed to name a special school.
62. There was also a slight delay in issuing an amended final EHC Plan after the annual review of November 2019. The Council issued a draft EHC Plan in December 2019. It then had eight weeks to issue the final EHC Plan. So, this should have been issued approximately by the end of February 2020 rather than in March 2020.

Complaint (b)

63. Ms X has said that Provider Z did not provide any formal education to Child B. On the basis of what I have read, the Council has accepted that. I recognise that Provider Z provided Child B with some activities. But Child B required a structured educational programme, now provided at School C.

Injustice

64. Child B has been without full time suitable education to his needs between November 2018 to March 2020. That equates to one month of schooling in December 2018, nine months of schooling in 2019 and three months of schooling for 2020. I am working on the basis that most schools provide 38 weeks per year of education.
65. So, approximately Child B has missed thirteen months of suitable full-time education.
66. This has also meant that Ms X has suffered from avoidable distress and frustration and additional costs and responsibilities in caring for Child B at home when he should have been at school.

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Agreed actions

67. The Ombudsman’s Guidance on Remedies makes the following points:

• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

68. Where there has been a loss of educational provision, the Ombudsman normally recommends between £200 to £600 per month.
69. Within two months of the date of the final statement, the Council will:
1. apologise to Ms X and make a payment of £1,500 to recognize her avoidable distress, time and trouble and additional caring responsibilities and educational costs while Child B was at home;
2. to recognize Child B’s thirteen months’ lost education, the Council will pay £500 per month (because there was some limited provision) which equates to £6,500. This payment should be used for Child B’s educational benefit in a way which Ms X and School C consider appropriate. The monies should be paid to Ms X and she will discuss how best to spend this for Child B’s benefit with School C and her SEN case worker.

Procedural improvements

70. The Council will ensure its SEN staff do not make promises to parents/carers of finding a special school which cannot be met and will ensure its SEN staff are aware that it has the power to direct certain suitable school to admit pupils to prevent them being out of school for longer than necessary. If this school is then named in a pupil’s final EHC Plan, parents/carers would have the right of appeal to the SEND Tribunal. SEND Tribunals are best placed to decide what is a suitable school where parents and councils disagree.
71. The Council plans to impart the above powers to its SEN staff during the autumn term 2021. The Council has also said that it has increased its supply of specialist local resources to cater for the demand for specialist placements.
72. In respect of alternative education provision, the Council will, within four months of the date of the final statement, review its policy on the provision of alternative education for pupils unable to attend school to ensure that:

• the policy clearly states that interim education should be full-time, as long as this is in the pupil’s interest, and that the education must meet a pupils’ special educational needs as set out in their EHC Plan, if they have one; and
• the policy will provide for regular reviews of the alternative provision so that the Council can check what education, and whether sufficient hours, are being provided.

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Final decision

73. To the Council’s credit, it has acknowledged the adverse impact on Ms X and on Child B by its faults. It has agreed to the recommended actions. I am therefore closing the complaint.

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Parts of the complaint that I did not investigate

74. I have not investigated matters after Ms X received the final amended EHC Plan in March 2020 because she had a right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman