Summary: Mr B complained the Council delayed reviewing his son’s, X, special educational needs. And there was further delay in securing a suitable placement for him. He said that as a result X missed out on appropriate education, was caused stress by the school placement he was attending and this placed stress on the family. He said he and his wife were put to time and trouble in pursuing the matter with the Council. There was fault by the Council which caused injustice. The Council will make a payment to Mr B.

The complaint

1. I call the complainant Mr B. He complained the Council delayed reviewing his son’s, X, special educational needs. And there was further delay in securing a suitable placement for him. He said that as a result X missed out on appropriate education, was caused stress by the school placement he was attending and this placed stress on the family. He said he and his wife were put to time and trouble in pursuing the matter with the Council.

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The Ombudsman’s role and powers

2. We cannot investigate complaints about what happens in schools unless it relates to special educational needs. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
3. 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)
4. 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

5. I considered the complaint and documents provided by Mr B and spoke to him I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.
6. 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 decision with Ofsted.

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What I found

Summary of the relevant law, guidance and good practice

7. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
8. The Education Act 1996 says if children of compulsory school age cannot attend school, including for reasons of illness, the council must make arrangements to provide suitable education, either at school or elsewhere, for example at home.
9. This should be on a full-time basis unless, in the interests of the child, part-time education is considered to be more suitable. This would be for reasons relating to the child’s physical or mental health.
10. Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, it should step in to arrange provision.

Summary of key events

11. X had an EHCP but was receiving some limited one-to-one tuition during lockdown due to the COVID-19 pandemic. Mr B says that X’s behaviour started to deteriorate when he returned to school in September 2020. An emergency review of his EHCP was held in mid-November. It was agreed the school no longer met his needs and a specialist provision should be considered.
12. In the middle of December X was permanently excluded from school.
13. In January he was allocated a place at a unit offering alternative provision (AP).
14. At the end of June the Council issued an EHCP naming a specialist school for X to start in September.

Analysis

Autumn Term 2020

15. X struggled with the return to school in September 2020. Mr B wrote to the Council asking about an urgent review of his needs and EHCP and he said the Council agreed an officer would attend. It appears it was left for the school to organise the review meeting. I cannot consider the actions of the school as it is not maintained by the Council so I cannot comment on the time taken to arrange the meeting.
16. There was agreement at the meeting that X needed a specialist school placement. However, shortly afterwards, X was permanently excluded from school. Mr B considered that had there been quicker and more significant intervention sooner then the permanent exclusion may have been avoided. I can understand why he thinks that but I cannot say there was fault by the Council over this period.

The search for a specialist placement

17. The Council approached the parents’ preferred school in mid-December and another school at the same time. Both schools said they could not meet X’s needs. The Council asked for further clarification on the reasons from one school which was received towards the end of January.
18. In early January Mr B had asked for there to be a referral to school 3. The Council did not make that referral until early February. It said that was because it was waiting for the clarification on why the first school had not been able to accept X.
19. The Council sent the consultation to school 3 at the beginning of February which was a month after Mr B had first asked for it. At the end of that month school 3 said it had a waiting list for consideration and was not actively considering requests at that time. In the middle of March Mr B asked the Council to consult school 4 which later accepted X and was named on his EHC plan. However, it took some time for school 4 to decide it could meet X’s needs.
20. There were some missed opportunities in how this process was conducted. It is understandable the Council will want to try to carefully consider parental preference of school. But, as the professional officers, they should bring their knowledge to bear, particularly when they know it is unlikely that a place will be offered by the preferred school. To only have one place in consideration at a time means that if it is unsuccessful the process has to start again with a fresh consultation. And while that is happening the child is in an unsuitable setting.
21. Mr B complained about the lack of information provided by the Council about potentially suitable schools. The Council explained what information is available on its website and given to parents. There is no fault here. But this point is related to the need for officers to be proactive in looking for appropriate placements and not place complete reliance on parental preference.
22. Although this process could have been conducted more efficiently and is sufficiently flawed as to amount to fault, I cannot say it made any difference to when a suitable place for X was found. School 4 only had a place available from September. The point that then arises is the provision that was made for X in the meantime.

The alternative provision

23. When X started at the AP it was agreed he needed a specialist placement. There can be no doubt this was not, therefore, going to be a suitable placement for him in the long run. But the Council said this was short-term while specialist provision was found. X initially settled reasonably well. This was because not many children were attending due to lockdown because of the pandemic.
24. When more pupils returned he started to be bullied and by the end of the spring term he was hardly attending as he found it too difficult to go in. The AP offered to provide 1-2-1 tuition on the premises but there were incidents of threats and bullying. From this point on X refused to go to the AP. Virtual learning was offered but X struggled to engage with that.
25. Over the summer term Mr B was increasingly concerned that X was receiving hardly any support or education (apart from 2 hours a week 1-2-1 mentoring). The Council attempted to make some extra provision available but by the time that was agreed it was almost the end of term and the potential provider considered they could not make any meaningful contribution over such a short period.
26. When X said he was unable to attend the AP because of the behaviour of other pupils an offer was made of 1-2-1 tuition on site. X would not accept this because of the behaviour of other pupils when he had tried it. I understand X’s position, and that of Mr and Mrs B who were not going to try to force his attendance, but I consider this offer met the duty to provide education.

Conclusion

27. There was fault in the way the Council looked for a specialist placement. There should have been proper, active, consideration given to alternatives. But this did not materially alter the outcome for X or Mr and Mrs B. It would still have been September before X had a specialist school place. The injustice to Mr and Mrs B is limited to their annoyance and frustration at the way the process was conducted.
28. In response to the draft of this decision the Council accepted that a more efficient approach could have reduced anxiety for the family. It will now consider how it carries out consultation with schools and confirms placements.

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Agreed action

29. The Council will, within a month of the final decision statement, pay Mr B £500. This is to recognise the shortcomings in the search for a specialist placement that I refer to above and the impact that had on X and them.
30. It will tell the Ombudsman of the outcome of the review of practice within two months of the decision.

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Final decision

31. There was fault by the Council which caused injustice.

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Investigator's decision on behalf of the Ombudsman