Summary: Mrs X complains the Council failed to provide her son who has special educational needs a suitable education for 27 months. Further, she says the Council delayed in providing her son an Education and Health Care Plan and did not keep in contact with her. The Council has accepted fault for each area of the complaint. The faults caused Mrs X and her son serious harm and distress and so we have recommended a number of remedies.

The complaint

1. The complainant, who I refer to as Mrs X, complains about the adequacy of educational support provided by the Council for her son (Child A) who has special educational needs (SEN). Mrs X says:

1. The Council failed to promote Child A’s return to education after being permanently excluded from his then secondary school.
2. There was a lack of suitable alternative education put in place for Child A over two and half years.
3. Mrs X says many requests were made of the Council to provide a final Education and Health Care Plan (EHCP), though there were severe delays in providing this.
4. There was a failure of communication by the Council

2. Mrs X says Child A has been out of education for over two years and the lack of support provided by the Council has had a significant and harmful impact on Child A’s education. As a desired outcome, Mrs X wants the Council to be held to account for the alleged faults.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).

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How I considered this complaint

6. I have reviewed Mrs X’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, including supporting documents and applicable legislation and policy guidance. Both Mrs X and the Council were invited to comment on a draft of my decision. These comments were carefully considered before a final decision was made.

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What I found

Education and health care plan (EHCP)

7. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
8. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
9. The process of a needs assessment and EHCP development must be carried out by councils in a timely manner. The whole process from requesting a needs assessment until a final EHCP being issued must not take longer than a maximum of 20 weeks.
10. The First-tier Tribunal (Special Educational Needs and Disability) (Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

Council’s duty to provide alternative education

11. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise that at school, as specified by Section 19 of the Education Act 1996. This states:
12. “Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to 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.”
13. The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.

Chronology of events

14. In September 2017, Child A started at a mainstream school, though he was permanently excluded some months later.
15. In January 2018, the Council put some alternative learning in place for Child A. He received one to one tuition twice a week. This was for three hours a week.
16. In November 2018, a request for an EHCP needs assessment was made.
17. In April 2019, it was agreed by the Council it should identify a place at a suitable specialist school placement for Child A.
18. Between April 2019 and November 2019, the Council consulted a number of specialist educational placements, though none were able to offer a place.
19. Between April 2020 and August 2020, the Council again consulted with specialist provision across its area. This resulted in a place for Child A being offered though this was refused by Mrs X due to concerns about travel.
20. From June 2020, Child A was no longer of compulsory school age and so the provisions of Section 19 of the Education Act 1996 no longer applied. Around the same time, the Council issued a draft EHCP for Child A. However, there were then delays by the Council in issuing a final EHCP.
21. In November 2020, the Council issued a final EHCP naming a placement.
22. In January 2021, Child A began his placement arranged by the Council.

My assessment

Time limits

23. By law, I can only investigate a complaint made within 12 months of the problem occurring, unless there are good reasons to exercise discretion in this respect. Child A stopped receiving education in November 2017 and began receiving alternative education arranged by the Council in January 2018. Mrs X considers the alternative education unsuitable. On the face of it, the complaint is late.
24. In my view, it would have been appropriate for Mrs X to have complained to the Ombudsman sooner. However, this has been an ongoing matter with the Council and Mrs X has been consistent in raising the issues. It should also be noted there has been a failure of communication by the Council (detailed below) and Mrs X was under significant pressure at the time owing to her other child entering foster care. Further, the matters raised are serious and it is right that the Ombudsman should be able to consider them. For these reasons, I am exercising my discretion and will investigate all aspects of the complaint as in time.

Fault by the Council

25. The Council accept that it did not provide a suitable education provision for Child A for a protracted period. While there were wider events that made finding provision complex, the Council accepts that it was its duty to ensure that appropriate provision was in place and it did not do so. It should be noted the Council did provide alternative provision with tutor support over this period, but this amounted to only three hours per week. So, I consider the Council was at fault and that Child A was not provided with sufficient education for 27 months.
26. In addition, the Council accept that it delayed in completing an EHCP for Child A and that it failed to adhere to the statutory timetable for doing so. It also acknowledges it failed to maintain effective contact with Mrs X by keeping her updated as to progress. This meant Mrs X had no certainty as to when she could expect Child A to be able to return to education.

Injustice

27. Mrs X explained the lack of education has had serious adverse results for Child A and her family. She said Child A was in effect isolated and prevented from building social relationships with others. She added that this meant he would often fight with his sibling. Mrs X explained the hostility within the household grew to such an extent that she felt she had no choice but to send her other child into foster care. I consider the Council’s fault has caused serious harm to Child A’s education and interpersonal skills, as well as to Mrs X’s and her family dynamic.
28. The Council made a remedy offer to pay £350 per month that Child A was out of education, as well as a £900 payment for distress arising from this. In my view, this offer falls short of adequately remedying the injustice to Child A and Mrs X. The 27 months Child A missed was at a significant point in his education which greatly damaged his development and life-chances. Further, he was deprived of the opportunity to form local friendships. The impact to Mrs X and her family was life changing and I believe she suffered serious distress because of the faults.

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Agreed action

29. To remedy the fault and injustice identified above, the Council has agreed to take the following actions:

1. Within one month, provide a written apology to both Mrs X and Child A which acknowledges the faults and individual injustice caused to them.
2. Within one month, pay Mrs X £13,500 (£500 per month of missed education over 27 months) to be used for the benefit of Child A’s education and development.
3. Within one month, pay Mrs X £1,500 to acknowledge the serious harm and distress she has suffered by reason of the faults.
4. Within three months, a senior officer of the Council will conduct a full review into Mrs X’s case. The purpose of the review will be to identify service improvements in relation to the EHCP process and supporting children out of education. In particular, this should focus on delays in the EHCP process, the suitability of provision provided to children out of education and the overall communication strategy of the Council’s service. The Council will identify measures to be implemented to be benefit of its service users.

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Final decision

30. The Council was responsible for serious failings in supporting Mrs X and Child A while he was out of education. The Council failed to provide suitable education provision and support over a prolounged period which resulted in serious and lasting harm and distress both Child A and Mrs X. We have therefore recommended a number of remedies.

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Investigator's decision on behalf of the Ombudsman