Summary: Miss X complained the Council failed to secure a school place for her son, Child Y, as required by his Education, Health and Care Plan. She also complained the Council failed to provide suitable education for him when he was not attending school for over a year. This meant Child Y missed out on educational provision and support as required by his Plan. We found the Council to be at fault. To remedy the personal injustice to Miss X and Child Y, the Council has agreed to apologise and make a payment to them. It has also agreed to make improvements to its service.

The complaint

1. Miss X complains about the Council’s failure to provide her son, Child Y with suitable educational provision since March 2020.
2. In particular, she complains about:

• Failure to identify a suitable school placement in time for secondary transition.
• Failure to provide Child Y with a suitable education and SEN support.
• Failure to provide suitable education during the first Covid-19 lockdown.
• Poor complaint handling.

3. She says the Council’s actions have caused significant harm to Child Y’s educational development and overall well-being.

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What I have investigated

4. The Ombudsman cannot investigate all of Miss X’s complaint because parts of it are about the content of her son’s EHCP, specifically section I. The content of an EHCP is a matter which can be appealed to the Tribunal and the Ombudsman normally expects appeal rights to be used where they exist.
5. In the context of this complaint, Miss X first had the opportunity to appeal to the Tribunal in February 2020 but did not do so because the Council was still consulting with potential placements. In my view, Miss X had no reason to think it would not be successful as the autumn term was still seven months away. For this reason, I would not expect Miss X to have used her appeal right at this time.
6. Miss X used her right of appeal regarding the EHCP issued by the Council in August 2021. This places the matter outside the Ombudsman’s jurisdiction and for this reason I am unable to investigate the complaint about the Council’s failure to offer suitable educational provision from August 2021 onwards.

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The Ombudsman’s role and powers

7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. 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)
10. The Special Educational Needs and Disability Tribunal is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
11. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
12. 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)
13. 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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How I considered this complaint

14. I spoke with Miss X and reviewed the information she provided.
15. I made enquiries with the Council, considered its response and reviewed the relevant law and guidance.
16. Miss X and the Council had an opportunity to comment on a draft version of this decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Councils and special educational needs

Education, Health and Care Plans

17. Councils’ responsibilities towards children with special educational needs (SEN) are set out in the SEN and Disability Code of Practice (the Code).
18. An Education, Health and Care plan (EHCP) is a legal document which describes a child or young person’s special educational needs, the support they need, and the outcomes they would like to achieve.
19. The council is responsible for making sure that arrangements specified in a child’s EHCP are put in place. The council will usually do this by funding to a school or college to provide the necessary support.
20. We can look at complaints about these matters, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Annual reviews

21. An annual review of the EHCP must take place once per year.

The Special Educational Needs and Disability Tribunal

22. Parents who are unhappy with the content of the child’s EHCP, or about a placement named in it at Section I, may appeal to the Tribunal. The law generally prevents us from investigating complaints for which a remedy is available through an appeal to a statutory tribunal.

The Coronavirus Act 2020

23. In March 2020 some aspects of the law on education, health and care needs assessments and plans changed temporarily to allow councils, health commissioning bodies, education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by COVID-19.
24. The changes meant the absolute duty of councils to secure or arrange provision set out in section F of an EHCP was modified to a duty to use ‘reasonable endeavours’ to do so. These changes were applicable until 31 July 2020.
25. The Government issued guidance about the changes, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’. This noted:

• It may be difficult to provide all elements of support in an EHCP, for example where the child is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
• Council’s should undertake a risk assessment to establish the individual needs of each child with an EHCP, incorporating the views of the child and their parents.
• The council should keep a record of the provision it decides it must secure or arrange and share this with the parents or young person, explaining why any provision differs from what is set out in the EHCP.

Right to education

26. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
27. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
28. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.

What happened

29. I have set out below a summary of the key events. But it is not meant to show everything that happened.
30. Miss X’s son, whom I shall refer to as Child Y, has SEN and has an EHCP. Child Y attended School A, a primary school. He was due to start the secondary phase of his education in September 2020.
31. In October 2019, an Annual Review was held at School A. Miss X expressed her wish for Child Y to move to a different, specialist setting for his secondary education because she was concerned School A was unable to meet his needs.
32. The Council formally consulted with three schools between November 2019 and February 2020. None of these schools were able to offer Child Y a place, either because they were full, or unable to meet his needs.
33. In February 2020, the Council issued a final ECHP. This stated Child Y should attend a special school. Miss X was unhappy that a specific school had not been named, but she remained confident there was enough time to find one. For this reason, she did not appeal to the Tribunal.
34. In March 2020, the Council consulted with another three schools (including School P). Miss X was becoming concerned the process of finding Child Y a school for September was taking too long and that it would be further delayed because many schools had closed due to Covid-19 lockdown restrictions. Child Y stopped attending School A at the start of the first lockdown. Around this time, the Council’s social services “Early Help” team because involved with the family. A worker from that team advised the SEN team that Child Y was anxious about not having a school place secured for September.
35. By May 2020, all three consulted schools confirmed they could not offer Child Y a place.
36. The first record of the Council being aware Child Y was not receiving an education was June 2020, although the Council has now accepted it knew earlier but did not keep a record of it. In response, the Council told Miss X that it expected Child Y to continue at School A until the end of the summer term.
37. Miss X was becoming increasing frustrated by the situation and contacted the Council several times to find out what progress was being made. She was worried the Council had forgotten about Child Y. In response to these concerns, and Miss X’s preference, the Council agreed to reconsult School P in July 2020.
38. In August 2020, the Council made a referral to its home tuition unit. Miss X explained home tuition was not suitable because Child Y needed to be in a school setting and had already demonstrated he was unable to engage with home learning during lockdown.
39. In September 2020, School P said it was unable to offer a place because it was unable to meet Child Y’s needs. The Council also realised the home tuition referral still had not been made. Despite an urgent referral being made, Miss X again explained this was inappropriate for Child Y.
40. The Council consulted with another school, School Q, that said it may be able to accommodate Child Y, subject to a trial. Disappointingly, in January 2021, School Q said it could not offer Child Y a place.
41. Frustrated by the lack of progress, Miss X requested new educational psychology and EHCP assessments. She firmly believed some schools were rejecting Child Y because his EHCP was inadequate and out of date. The Council agreed to Miss X’s request. It also consulted with a further three schools. Two schools (including School T) offered Child Y a place. One of these was rejected by Miss X because it did not have adequate recreational facilities.
42. In March 2021, Miss X complained to the Council, raising particular concerns about his lack of schooling since the start of the first Covid-19 lockdown in March 2020, and failure to identify a suitable secondary school.
43. Child Y’s case was considered by the Council’s SEN Panel in April 2021. The Council decided it would agree to fund Child Y’s placement at School T, the only offer still “on the table”.
44. This was discussed with Miss X. She explained School T was unsuitable because it was too far from home, did not have an outdoor recreational area and was on a main road. The latter was of concern to her because of Child Y’s lack of road safety awareness. Instead, Miss X asked the Council to consult with School S.
45. In June 2021, the Council issued its stage one response to Miss X’s complaint. The Council said:

• it was unaware of Child Y’s non-attendance at School A until June 2020. A referral to the Council’s Provision Evaluation Officer (PEO) should have been made and was not;
• a Covid-19 risk assessment had not been completed by School A. This omission should have been addressed by the Council;
• Miss X’s decision to refuse the home tuition service in September 2020, should have prompted a referral to the Council’s Attendance Team because Child Y was clearly a “Child Missing Education”. This did not happen;
• Annual Reviews did not take place in 2018 or 2020;
• the reassessment process was underway and a revised EHCP would be issued;
• it was sorry for the mistakes it had made and the delay; and
• urgent referrals would be made to the home tuition service as an interim measure and to the Attendance Team.

46. Miss X was dissatisfied with this outcome and asked the Council to progress her complaint stage two of the Council’s complaints procedure in July 2021. Specifically, she complained about the following matters:

• The three month delay in responding to her complaint.
• A contributory factor to a school not being found was the information available in his EHCP no longer reflected Child Y’s needs, and so decisions were made based on historical and out of date information
• The failure to provide any alternatives to online education offered during the Covid-19 lockdown. Miss X explained this was unsuitable because due to Child Y’s SEN. No provision has been made available during the second lockdown because he was no longer on a school roll.
• Delay in progressing the ongoing ECHP assessment.
• Poor communication throughout from the SEN team.

47. The Council consulted with School T and another school in late July. Miss X also agreed to home tuition on a trial basis.
48. In August 2021, the Council issued a final ECHP, without a specific school being named at Section I.
49. Child Y’s home tuition started in September 2021, initially with 10 hours face to face tuition. This was reduced a month later because it was presenting problems for Child Y.
50. In November 2021, because the Council has failed to respond to Miss X’s complaint, the Ombudsman agreed to investigate. In response to the Ombudsman’s enquiries, the Council accepted there had been fault in the way Child Y’s case had been handled, specifically in the following areas:

• It was aware that Child Y had issues with attendance at School A as early as 2019 but did not record these conversations.
• The Council does not have records to demonstrate maintained special schools (including School A) had completed Covid-19 risk assessments. There was an expectation that pupils on roll would continue in attendance. For this reason, is unable to confirm a risk assessment was completed by School A.
• A Child Missing Education referral should have taken place and had not been done after the commitment to do so in the stage one response.
• There was a delay in providing alternative education between July and September 2021.
• The Council accepts Child Y has no education from September 2020 and the alternative education provided was not equivalent to full time education.
• Finding a suitable school has taken longer that it should have.

It also said:

• Miss X did not exercise her right of appeal in September 2020.
• It did not delay in providing required information to one of Miss X’s preferred schools in September 2021.
• The failure to carry out an Annual Review in 2020 was caused by the impact of Covid-19 on staff absences and vacancies within the SEN department.
• Direct payments were agreed by social services to support the family in February 2022.

Analysis

51. I have set out my findings under the relevant complaint headings.

Failure to identify a suitable school placement in time for secondary transition

52. I have found the Council to be at fault. This caused Child Y and Miss X a significant injustice.
53. The Council has already accepted it took longer that it should have to find a suitable school. I agree for the following reasons explained below.
54. The Council was notified in late 2019 by School A that it was not going to offer Child Y a secondary school place.
55. The records show the Council consulted with six establishments between November 2019 and May 2020. While the Council started its first consultation promptly when it became aware a new school was needed, when it became clear that there were problems, it should have taken a more proactive approach to identify why some schools felt unable to offer Child Y a place and address these issues. At least one school told the Council they had concerns about incidents that had occurred at School A. I have seen no evidence that the Council acknowledged this may continue to present a problem during other consultations and have a dialogue with Miss X or the relevant educational settings.
56. It is also of concern that Child Y’s situation was not referred to the Council’s SEN panel until April 2021, long after it became apparent there were problems finding Child Y a suitable placement.
57. It is also highly likely, as Miss X believes, that the Council’s failure to carry out an Annual Review on both 2018 and 2020, contributed to a lack of awareness about Child Y’s circumstances and his changing needs, both SEN and otherwise, as he grew older. The Council’s agreement to carry out a reassessment would appear to support Miss X’s position.
58. For much of this time, it is clear from the records I have seen that Miss X was not updated about what was happening which led to her understandable frustration and distress. Child Y also suffered significant anxiety because of the uncertainty he experienced at this key educational milestone.
59. Overall, the evidence I have seen, together with the Council’s own admission, leads me to make a finding of fault regarding this aspect of the complaint

Failure to provide Child Y with a suitable education and SEN support

60. In summary, Child Y has been out of school since March 2020.
61. The Council has accepted Child Y did not receive a suitable education since September 2020, although says it relied on School A to continue to provide support during the period of lockdown from March 2020. Despite the Council being aware of Child Y being out of school and the anxiety this had caused him, it failed to make referrals to the relevant council department that could have addressed his lack of provision. They would have been better equipped to offer appropriate guidance about what alternative education resources were available to help support Miss X while Child Y remained off a school roll. It is particularly disappointing that even after this omission was identified in June 2021, the referral had still not been made in March 2022. The Council’s recent apology is an inadequate remedy for this mistake.
62. The Council has, in part, justified its position by the fact Miss X refused to agree to home tuition in July 2020. While I agree this is relevant, the Council should have explored the reason for this and attempted to engage with her. Miss X is clear her refusal was informed by her belief that a school would be found in time for the start of the autumn term. She also felt Child Y had clearly demonstrated that learning at home was not appropriate during the period of lockdown. She knew he needed to be in a school environment and benefit from all that would offer.
63. In my view, her concerns about the suitability of home learning for Child Y were not without merit. While I accept his long period out of education may have contributed towards this, the Council allowed the case to drift with no meaningful action. There is a lack of any evidence of Council intervention to ensure Child Y had suitable education while he was not attending school between September 2020 and September 2021 when the home tuition started.
64. Because he was out of school, not only did he miss out on valuable social interaction with his peers, he did not receive any SEN support. Regardless of the challenges faced in finding a school, the Council had a duty to ensure Child Y had the provision in his EHCP while he was waiting for a suitable place. It failed to do this and that was fault that caused significant injustice to Child Y.

Failure to provide suitable education during the first lockdown

65. There is no doubt that school provision for all children was challenging between March 2020 to the end of the summer term 2020. I accept that while Child Y remained on the roll at School A, the school had primary responsibility for ensuring he received a suitable education. But emergency Covid-19 legislation was issued to ensure there was some audit of SEN provision. The Council has been unable to produce any record of this having been done. Miss X is clear that Child Y was unable to engage with online learning as a result of his SEN. The system was in place to ensure children who were struggling were not ignored. This clearly did not happen in this case. This is fault.

Complaint handling

66. The Council did not respond to Miss X’s first complaint in a timely manner. Nor did it respond to her request for a stage two investigation. This is fault.

Injustice and remedy

67. Overall, I am satisfied the Council’s poor practices had a direct impact on Child Y missing over a year of full time education.
68. The Ombudsman’s Guidance on Remedies says that where a child misses out on education, we would usually recommend a remedy of between £200 to £600 per month (where the top of the band would indicate a situation where a pupil with special educational needs received no education and none of the specialist provision in their EHC plan). Our remedies aim to reflect what is appropriate, fair and proportionate to the individual circumstances which will include factors such as COVID-19 which may have affected the Council’s usual service and any provision that was in place.
69. I am also satisfied Miss X herself suffered a significant injustice during this time that requires a separate remedy. The records I have seen evidence the frustration and distress she experienced as a result of the uncertainty about Child Y’s educational future over a prolonged period of time.

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Agreed action

70. Within four weeks of my final decision, the Council has agreed to take the following action:

• Apologise to Miss X and Child Y for the fault identified in this decision statement.
• Make a payment to Miss X of £500 to acknowledge the impact on her of the fault and her time and trouble bringing the complaint.
• Make a payment to Miss X of £100 to acknowledge the fault in the complaint handling.
• Make a payment to Child Y to be used for his educational benefit (to paid into an account in Child Y’s name but managed by his parents) calculated as follows:
1. £500 per month in recognition of the lost education and lack of EHCP provision from September 2020 to August 2021. This reflects the significant injustice to Child Y during the transfer to secondary education, but also that an offer of home tuition was made to Miss X. The Council should deduct the school holidays when it calculates the total amount.
2. £300 for the period of lost education between March to July 2020. This reflects that Child Y remained on the roll of School A. It also acknowledges services were affected by COVID-19 during this period and therefore Child Y may not have been able to receive his usual education in any event.

71. Within ten weeks of my final decision, the Council has agreed to take the following action:

• At a senior level, the Council will undertake a detailed review of this case. The review exercise will focus on why Child Y was not provided with suitable alternative education when it became clear a school place could not easily be found. It should also look at why any potential barriers to doing so were not addressed at an early stage. Moreover, the Council will review why a referral was not made to the relevant departments. The purpose of the review is to adopt measures to inform service improvements for each area of fault identified in this statement. The Council will provide evidence of the review and adopted measures to the Ombudsman.
• Review how the Council ensures remedies agreed in response to complaints are carried out.

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Final decision

72. I found fault causing injustice and the Council has agreed with my findings and recommendations. On this basis, I have completed my investigation.

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Parts of the complaint that I did not investigate

73. I have not investigated the events since Miss X appealed to the Tribunal in 2021 for the reasons explained at paragraphs four to six above.

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Investigator's decision on behalf of the Ombudsman