Summary: The Council was at fault when it failed to find a suitable school placement for Mr X’s son, S, who has an Education, Health and Care Plan. It also failed to provide S with suitable alternative education and communicated poorly with Mr X. The Council has agreed to apologise to Mr X, pay him £4,500 to remedy the injustice to both him and his son, and make service improvements.

The complaint

1. Mr X complained he had to pay for taxis and public transport between May and July 2021 so his son, S, could still attend his special school after they moved to Waltham Forest from a different Council area (Council area B).
2. Mr X also complained the Council:
• delayed in finding a school placement for his son, S, when they moved into the Council area in May 2020;
• failed to provide a suitable alternative education for S whilst he was out of school; and
• delayed in responding to his complaints.
3. Mr X says S has missed out on his special educational provision and has not received the full-time education to which he is entitled. Mr X states he has also been financially disadvantaged because he has had to pay for taxis to S’s special school. Mr X says the Council’s failures have caused him distress.

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The Ombudsman’s role and powers

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 complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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 spoke to Mr X and considered his views of the complaint.
8. I made enquiries of the Council and considered the information it provided. This included correspondence between the Council and Mr X, copies of the consultation letters sent to schools and S’s Education, Health and Care (EHC) Plan.
9. I considered the relevant legislation which included the Special Educational Needs Code of Practice 2015.
10. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Legislation and guidance

Education provision

11. The Education Act 1996 says councils must arrange suitable education for children of compulsory school age who, because of illness, exclusion or otherwise, would not receive a suitable education without such provision. This should be full-time unless this would not be in the child’s best interests.

Education, Health and Care Plans

12. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ gives more details about how councils, schools and others should carry out their duties.
13. 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.

Transfers between council areas

14. When a child moves to another council area, the original council must transfer the EHC Plan to the new council. The requirement for the child to attend the educational placement named in their EHC Plan continues after the transfer. However, where attendance would be impractical, for example because of distance, the new council must place the child at an appropriate educational placement other than the one specified in the child’s EHC Plan, until the EHC Plan has been amended.

Impact of the COVID-19 pandemic

15. This complaint involves some events which occurred during the COVID-19 pandemic.
16. On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown. The Government asked councils to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an EHC Plan, should stay at home or go into school. During this period the Council’s absolute duty to ensure the provision of a child’s EHC Plan was relaxed to ‘best endeavours’ to ensure its provision.
17. In July 2020, the Government announced plans for the full reopening of schools from September 2020. From this point, councils had an absolute duty once more to ensure the provision in a child’s EHC Plan was provided.

What happened

18. Mr X’s son, S, has an EHC Plan. They used to live in Council area B. In May 2020, Mr X and S moved to the London Borough of Waltham Forest (the Council). S continued to attend the special school in Council area B using taxis or public transport paid for by Mr X.
19. Mr X advised S’s school that they had moved to the Council’s area in May. Mr X told the school he wanted S to start attending a new school in the Council’s area from September 2020 onwards. Mr X stated his preferred school was School A. There is no record of what, if any, actions the school took at this stage.
20. On 13 July, the Council received a transfer form and S’s EHC Plan from Council area B. The Council states this was the first notification it received that S had moved into its area. The transfer form did not state Mr X wanted his son to transfer from his special school.
21. The Council allocated S’s case to Officer Z. Officer Z did not contact Mr X.
22. On 21 August, the special school emailed Officer Z and said Mr X wanted S to attend a school in the Council’s area from September 2020.
23. Officer Z contacted Mr X on 1 September and left a message.
24. On 9 September, Mr X complained to the Council because S did not have a school place.
25. On 11 September Mr X and Officer Z discussed S’s case by telephone. The notes record Mr X said he wanted S to attend a mainstream school and School A was his preferred choice.
26. Mr X did not receive an acknowledgement to the complaint and so he contacted the Council again on 17 September. Again, Mr X did not receive a reply. It was not until the beginning of October, when Mr X wrote a letter to the Council, that the Council replied to his complaint.
27. On 2 October, the Council sent consultation letters to Schools A and B. Neither school offered S a place.
28. On 16 October, the Council responded to Mr X. It did not uphold his complaint because it said it had only received notification S required a school placement within the borough on 13 July which was close to the end of the school year. It said it was unable to begin the consultation process until schools returned in September and so was not responsible for any delays.
29. On 26 October, Mr X’s case was reassigned to Officer Y. The Council has no records of this officer taking any action following the results of the consultations or contacting Mr X to discuss the next steps.
30. On 2 November Mr X complained again at stage 2 of the Council’s complaints process. He said S was out of school because the Council had failed to identify a suitable placement for him.
31. On 12 November Mr X emailed Officer Y and asked for an update on whether the Council had found a school for S.
32. Officer Y responded the next day and informed Mr X that Schools A and B had refused S a place. The officer said they believed Mr X was aware of this information and was looking for other schools. Mr X replied and stated he did not know the consultations had taken place.
33. On 2 December, Mr X contacted the Council and asked it to provide S with home tuition.
34. On 7 December the Council replied to Mr X’s stage 2 complaint. It made the following findings:
• its communication with Mr X had been poor; and
• it delayed in starting the consultation process with schools and failed to take action following the outcome of the consultation.
35. The Council apologised for its failures and offered Mr X £300 for his distress, inconvenience and time and trouble.
36. Mr X remained unhappy and complained to the Ombudsman.
37. On 5 January 2021, the Council secured 3 hours online provision a day in literacy and numeracy for S.
38. During June and July 2021, the Council consulted with seven schools. Four schools refused S a place. At the time Mr X complained to the Ombudsman, the three other schools were yet to respond.

My findings

Funding of S’s transport to special school May to July 2020

39. Mr X is unhappy he received no financial assistance to pay for S’s transport to his special school between May and July 2020.
40. The Council was unaware Mr X and S had moved into its area until it received a transfer form from Council area B in July 2020. I have seen no evidence to demonstrate that at this time or after, Mr X requested assistance with the costs of S attending his special school. There was no fault in the Council’s actions.

School placement for S

41. The Council became aware Mr X was moving into its area on 13 July 2020 when it received the transfer form from the previous Council. The form made no reference to Mr X’s wish to move S from the special school named in his EHC Plan. The Council was not at fault for not identifying a new school placement at this time. And even if the transfer letter had indicated Mr X wished S to transfer to a school within the Council area, it was too close to the end of the school year to carry out effective consultation.
42. The Council became aware Mr X wished to move S to School A on 21 August. At this stage, the Council should have taken steps so it could begin the consultation process as soon as the schools reopened at the beginning of September. It has already admitted that its failure to take any action until 2 October constituted a delay and was fault.
43. The schools did not offer S a place. However, the Council failed to take any action to carry out further consultation until June 2021, around seven months later. This is a significant delay and is fault.

Provision of a suitable education for S

44. Councils must arrange suitable education for children of compulsory school age who, because of illness, exclusion or otherwise, would not receive a suitable education without such provision. This should be full-time unless this would not be in the child’s best interests.
45. The Council was aware before the start of the 2020/21 school year that S did not have a school placement. It should have ensured that alternative provision was in place for him until a new placement could be found. However, it failed to take any action until Mr X requested help with this in December 2020. This is fault.
46. From January 2021, the Council secured three hours online provision for S. It has provided no explanation why it did not provide a full-time education or why it considered a full-time education was not suitable for S.

Communications with Mr X and complaint handling

47. When Mr X first complained, he had to write to the Council three times before he received an acknowledgement and a response. Communications were delayed and ineffective when the Council consulted with Schools A and B without informing Mr X of either the consultation or the outcome. The Council has already admitted its communication with him was poor and has apologised but it should also make a financial payment to remedy the frustration this caused Mr X.

Injustice to S and Mr X

48. As a result of the Council’s faults, S, who is a vulnerable child, missed out both on a full-time education and also the special educational provision in his EHC Plan.
49. When a child is out of school through fault by the Council, the Ombudsman will usually recommend a financial payment of between £200 and £600 a month to acknowledge the injustice this has caused. The amount we recommend is based on factors such as the length of time out of school or whether the child has special educational needs which have not been met. In coming to a figure in this case I have taken these factors into account as well as the fact the Council provided some education from January 2021 onwards.
50. S remains out of school. The financial payment I have recommended is for the school year 2020/21, which is September 2020 to July 2021. Mr X is free to return to the Ombudsman if the Council fails to find S a suitable placement in the months to come.
51. Mr X has also been caused an injustice both because of the Council’s failure to deal with his complaints in an effective and timely manner, and also because of the distress, worry and frustration he has been caused because of S’s lack of education. The Council has already offered Mr X £600 for the distress it has caused him. This is suitable to remedy the injustice he has been caused by distress.

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Agreed actions

52. Within one month of the date of the final decision the Council has agreed to:
• apologise to Mr X; and
• pay him £4,500 to remedy the injustice caused to S because of the Council’s failure to identify a school placement or to provide him with a suitable full-time education or to secure the special educational provision in his EHC Plan.
53. Within three months of the date of the final decision the Council has agreed to remind relevant staff that:
• they have a duty to ensure that suitable alternative educational provision is made for children who are deemed otherwise unable to attend school and that this should be full-time or its equivalent unless inappropriate for the child; and
• they should remain in communication with parents when consulting with schools ensuring parents are made aware of the schools being consulted with and the outcome of the consultations.

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Final decision

54. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman