Summary: Mrs X complained about the Council’s failure to provide her son, who has special educational needs, with suitable education for 20 months. We have found the Council to be at fault because it allowed the case to drift and did not communicate properly with Mrs X. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Mrs X. It already has a strategy in place to address the shortage of specialist placements in its area. We were unable to investigate part of Mrs X’s complaint because she had appealed to the Tribunal.

The complaint

1. Mrs X complains that the Council failed to provide her son with a suitable education from March 2019 to November 2020. She says this had a significant detrimental impact on his educational development and mental health and well as affecting the whole family.

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What I have investigated

2. The Ombudsman has no jurisdiction where a parent has appealed to the Special Educational Needs Tribunal (“the Tribunal”) from the date the appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied. We cannot remedy delay during the Tribunal process.
3. In the context of this complaint, this appeal right arose in December 2019.
4. For these reasons, I am unable to investigate what happened after December 2019, including Mrs X’s complaint about the Council’s actions during the Tribunal proceedings.
5. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem (see paragraph 9 below). We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are clear and compelling reasons to do so.
6. I have decided to investigate what happened between February 2019 and December 2019. It is understandable why Mrs X did not complaint earlier to both the Council and the Ombudsman, because she was awaiting the outcome of the Tribunal proceedings and complained to the Council soon after.

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The Ombudsman’s role and powers

7. 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)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. 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)
10. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
11. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
12. 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.
13. 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

14. As part of my investigation I have:

• considered the complaint and documents provided by Mrs X;
• made enquiries of the Council and considered its response;
• spoken to Mrs X; and
• sent my draft decision to both parties and invited comments that were taken into consideration before reaching my final decision

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What I found

The law and guidance

15. A child with special educational needs may have an Education, Health and Care Plan (“EHCP”). This sets out the child’s needs and what arrangements should be made to meet them. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
16. Local authorities have a duty to arrange for the special educational provision set out in an EHCP (Children and Families Act 2014, section 42).
17. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for 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” (Education Act 1996, section 19).
18. 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 16(6)).
19. Statutory guidance ‘Alternative Provision’ says if a child receives one to one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated.
20. Full time education is not defined, but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child.

Key events

21. I have set out below a summary of the key events. But it is not meant to show everything that happened.
22. Mrs X’s teenage son, Child Y, has special educational needs (“SEN”) including autism and ADHD. He has an EHCP. In January 2019 he was permanently excluded from school and removed from the school roll soon afterwards.
23. The following month, the Council arranged a timetable of alternative education for Child Y. He worked alongside his father three days per week. On the other two days, he was provided with four hours of home tuition from the Council’s specialist short term school provision (“the Short-Term School”). In the meantime, Child Y’s allocated SEN worker and the SEN placement team worked to identify a suitable placement. Child Y’s situation was considered periodically during the time by a placement panel (“the Panel”).
24. Mrs X wanted Child Y to attend a particular school, School A. The Council consulted with School A but it said it was both full and unable to meet Child Y’s needs. The Council consulted with other schools, but they were also unable to accept him for similar reasons.
25. In December 2019, the Council issued a final EHCP. This named the Short-Term School at section I. After a period of unsuccessful mediation, Mrs X lodged an appeal at the Tribunal.
26. In November 2020, Child Y started at School B.

Mrs X’s complaint

27. In December 2020, Mrs X complained to the Council about the following matters that I can investigate:

• Lack of urgency in finding a new school place for Child Y following his exclusion.
• Poor communication during this time.
• Inadequate interim provision of only four hours tutor support per week.

28. Mrs X says she felt abandoned by the Council while Child Y was out of school. This put enormous strain on the whole family. Mrs X and her husband had to rearrange their working arrangements to facilitate the home education arrangements.

The Council’s position

29. In response to Mrs X’s complaint and the Ombudsman’s enquiries, the Council made the following points.

• Availability of suitable placements for Child Y was extremely limited, and School A was heavily oversubscribed.
• The Council apologised for the delay but explained demand for special school places in the area had increased by 170% over three years. The Council had responded to this by building a new specialist autism school due to open in January 2022.
• Child Y was offered 12 hours face to face tuition, but this was declined by Mrs X because she expressed a preference for him to work alongside his father. The timetable was based around this and was part of his educational provision. The Council believed Mrs X agreed with this arrangement as she had signed the timetable at the outset.
• Child Y’s made substantial progress during the time he was out of school, and outcomes were being met.

Analysis

30. Councils are not required to provide exactly what parents request, but where a council has been unable to find a suitable school placement within a reasonable time frame, they have a duty to provide appropriate alternative education. We can also consider whether the Council has failed to make purposeful efforts to identify a school place.
31. I will consider each of Mrs X’s specific areas of complaint below:

Lack of urgency in finding a new school place for Child Y following his exclusion

32. In reaching my decision about this aspect of the complaint I have carefully considered the Council’s chronology of events and information provided by Mrs X. This includes dates of panel meeting and consultations that took place with potential placements. Just because the Council was unable to secure a placement quickly for Child Y, this is not necessarily evidence of Council fault.
33. Sourcing a suitable place was not a straightforward matter to resolve. Several schools said they were either full and/or unable to meet Child Y’s needs. From the time Child Y was excluded in January 2019 until December 2019, the Council consulted with seven schools. During this time the Panel met five times to discuss Child Y’s case. However, I have noted that between the Panel in February 2019, the next one did not take place until August 2019. While I have seen some placement consultations were ongoing during this time, I am not satisfied the Council had any specific strategy as to how to move the case forwards.
34. This leads me to conclude that the case was allowed to drift until the summer of 2019 when Mrs X reported some improvement with Child Y as a result of him being on medication. This then prompted reconsulting some of the schools that had previously rejected him.
35. I fully acknowledge the difficulty in finding an appropriate placement in this case. As the Council has explained, Child Y’s exclusion from his previous school made this a particularly challenging task. But I have seen no evidence about what the Council did to address this obvious barrier to finding him a school he so desperately wanted to go to. This was not formally acknowledged by the Panel until August 2019, nor was it discussed with Mrs X.
36. It is for this reason that I find the Council to be at fault. While I acknowledge and welcome the work the Council has been undertaking to improve supply of specialist resources in its area, challenging cases like Child Y should be closely monitored, regularly reviewed and not allowed to drift.

Poor communication during this time

37. Mrs X says the Council failed to keep her informed about what was being done to find Child Y a school place. Child Y had a difficult experience at his previous school and was missing interaction with his peers. Mrs X was becoming increasingly concerned about him being socially isolated.
38. I can see from the Council’s records that Mrs X was updated about progress and what work was being done in terms of consulting with other schools in January and early February 2019. But from then onwards, there is no evidence of any contact with Mrs X until she asked the Council for an update in May 2019. While I can see the Council was waiting on schools to respond, it is disappointing it did not inform Mrs X what was happening at this time. The Council’s email in May 2019, apologises for not doing so, which seems to acknowledge this was unacceptable.
39. Mrs X had to send further chaser email in June and July 2019 because she still did not know what was happening and was understandably concerned about what would happen at the start of the autumn term.
40. Panel meetings to discuss Child Y’s situation were held in February and August 2019, but I have seen no evidence to show Mrs X was updated in the intervening period other than when she contacted the Council. This confirms what Mrs X set out in her complaint to the Ombudsman. There was also no record of Mrs X having been told that her preferred school, School A, was unable to accept child Y in both May and June 2019.
41. Another email I have seen from Child Y’s case worker expressed her own concern about delay.
42. Mrs X did not receive another update until November 2019.
43. Overall, from the evidence I have seen, I am satisfied the Council did not properly communicate with Mrs X from February 2019 onwards and is fault that caused an injustice to her. There were many months when Mrs X was left wondering what, if anything, was being done to secure a school place for her son it this will have contributed to the anxiety and distress of the situation.

Inadequate interim provision of four hours tutor support per week

44. There is a clear difference of opinion about whether adequate support was provided after Child Y’s exclusion. I do not find the Council to be at fault for being unable to identify another school straight away because of Child Y’s circumstances. I am also satisfied the Council was proactive in early 2019 and put in place home tuition within a reasonable time scale.
45. What I must determine is whether what was put in place was sufficient. Mrs X says Child Y was only provided with four hours per week, significantly less that the 25 hours government guideline.
46. The Council says this was at the request of Mrs X who wanted Child Y to work alongside his father for three days per week where he benefitted from routine, purpose and social interaction. His tutor studies were supplemented by a morning and afternoon of online learning. The Council says this amounted to 25 hours per week.
47. In response to my enquiries, the Short-Term School stated that Child Y was originally offered 12 hours a week, supplemented by additional e-learning. This was declined by Mrs X.
48. I believe it entirely possible that Mrs X was initially keen for Child Y to work with his father to avoid social isolation because it was only a short-term measure. As time went on though, she understandably became more concerned about Child Y being away from the school environment and having the opportunity to be around his peers.
49. However, I have seen no evidence that Mrs X asked for more home tuition, or for the timetable to be altered. And as far as the Council was concerned, and this was supported by his annual review, Child Y was making good progress at home. I have no reason to believe that had Mrs X wanted to increase the home tuition, it would not have been provided by the Council.
50. While I acknowledge the situation was far from ideal for Child Y, I do not find fault with the arrangements made by the Council while he was out of school. The real issue was the delay in identifying a school place that I have addressed above, rather than the quality of the interim arrangements.

Injustice

51. It is not possible for me to say with a sufficient degree of certainty that Child Y would have secured a school placement any sooner, during the period I have investigated, had the faults I have identified not occurred. For this reason, I cannot recommend the Council should be held accountable for its inability to secure a school place sooner. However, I am satisfied that Mrs X suffered distress and frustration as a result of long periods of apparent inactivity, exacerbated by poor communication during this time. To remedy this injustice, the Council has agreed with my recommended action.

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Agreed action

52. To remedy the injustice caused by the faults identified in this decision statement, the Council has agreed to take the following action within four weeks from the date of this final decision:
1. Apologise in writing to Mrs X and Child Y.
2. Pay Mrs X £500 to acknowledge the distress suffered as a result of the failure to properly manage progression of the case and poor communication with her.
3. Reflect on the issues raised in this decision statement and identify any areas of service improvement, particularly around case reviews and communication. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems not reoccur. This report should be sent to the Ombudsman.

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Final decision

53. I have found the Council to be at fault and I am satisfied this caused injustice to the complainant. The Council has agreed with my findings and recommendations. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

54. I was unable to investigate part of Mrs X’s complaint for the reasons I have set out at paragraphs 2 to 4 above.

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Investigator's decision on behalf of the Ombudsman