Summary: Ms X complains the Council delayed in consulting special schools in time for her child to transfer from primary to secondary, meaning the statutory deadline for naming a placement was missed. There was delay both in consulting placements and in putting in place contingency plans. This caused distress, uncertainty, loss of education and put additional care demands on the family. The Council will apologise, make a financial payment and implement service improvements.

The complaint

1. Ms X complains the Council delayed in consulting special schools in time for her child to transfer from primary to secondary which left her child without a school place.
2. Ms X complains this caused distress, loss of education, prevented a planned transition and meant she was unable to work as she had to provide round the clock care.

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The Ombudsman’s role and powers

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. 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)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 have considered information provided by Ms X and the Council including:
• Annual review documents
• Consultations with schools
• Education, Health and Care Plans
• Complaint correspondence.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

What happened

10. Ms X’s son has high level needs and has an Education, Health and Care (EHC) Plan. He was due to transfer from primary to secondary school in September 2021.
11. At an annual review meeting in 2018, Ms X’s son was in a specialist class of seven pupils with five members of staff and received one-to-one support. It was noted his behaviour has changed, possibly due to epilepsy, and additional funding was required to meet his needs in his current setting. The school said it was getting increasingly difficult to keep Ms X’s son safe and a more specialist placement may be needed.
12. It appears the next annual review meeting was not held until July 2020. A local authority representative attended the meeting. It was agreed a list of schools would be provided to parents.
13. The Council says it consulted Ms X’s preferred placement, College A, in November 2020. It decided attendance there would not be compatible with the efficient education of other pupils. The Council told me it also consulted School B informally in Autumn 2020. The Council says it expected this setting to offer a place but in February 2021 School B did not do so when formally consulted.
14. In January 2021 the Council says it consulted over seventy placements on its database but none provided a positive response. In its complaint response the Council acknowledged it should have started this process sooner.
15. The Special Education and Disability Regulations 2014 say an EHC plan must be reviewed and amended by 15 February when a pupil is to transfer from primary to secondary school. As no next placement had been identified the Council issued an amended final plan on 11 February stating a type of school. It provided Ms X with a right of appeal, but she did not use it as she expected the Council to find a school place.
16. The Council carried out further consultations between April and June 2021. The Council told me that all consultation responses ‘followed a similar theme, however, either of no capacity, or the needs being too significant/complex for them, or both’.
17. Social care was aware of the situation and investigated putting a contingency plan in place, for example carers in the home. Social care was unable to identify support. The primary school could provide one worker, but 2:1 support was needed in the home and carers had to have epilepsy training.
18. In September the Council made a referral to a tutoring service, but this was not able to assist.
19. The Council said it identified an assessment placement at School B and Y started to attend on 4 November 2021. The Council says it was considered too disruptive to introduce new tutors before this placement started so it did not continue to seek home tuition.
20. Following the assessment placement, School B offered a permanent place which was accepted.
21. The Council acknowledges Ms X’s son lost out on eight weeks of education and the situation created a lot of anxiety about whether a placement would be found. Ms X had to provide round the clock care during this time as social care were unable to identify support. A personal budget was considered but social care noted it had not been possible to find suitable carers over several years.
22. The Council has acknowledged in its response to my enquiries there are capacity issues at special schools locally and in particular to meet the type of needs Ms X’s son has. It says ‘a range of works have been and continue to be ongoing with settings and providers to increase capacity, as well as to tailor provision for individual need’.

Analysis

Jurisdiction

23. While Ms X had a right of appeal against the final EHC plan of February 2021 I am satisfied it was reasonable for Ms X not to use it as she did not disagree with the type of school named and expected a place to be found. I have therefore exercised discretion to investigate her complaint.

Fault

24. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).
25. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
26. The Council was aware from the information provided to it at the annual review meeting in July 2020 that Ms X’s son’s needs were increasing, and highly specialist provision would be required. The Council has acknowledged in its complaint response it should have looked at a wider range of schools sooner. While it says it did start to consult in November 2020, it only formally consulted one school. It did not start wider consultation until January 2021, a month before the deadline for naming a placement. This was fault.
27. It is not possible to say that if the Council had consulted earlier that a place would have been found before September 2021, but it must be the case that by waiting until near the 15 February deadline many special schools would already have filled their places. The uncertainty of whether the outcome may have been different but for the Council’s fault is an injustice.
28. While I acknowledge the Council did all it could to find a place after April 2021, it also had a duty to ensure if it could not find a school that:
• Alternative s.19 education was in place
• The EHC provision was in place as far as this was possible outside a school, for example therapies
• Social care support was in place to support parent carers caring role and employment.
29. The Council did not make a referral for tuition until 7 September when it will have known in July that Ms X’s son had no school place for September. This was fault.
30. I have seen no evidence the Council enquired whether therapies could take place at home. This was fault.
31. While social care was aware of the need to find support in Summer 2021, they were unable to source any help for the family. Some services were still not back in place after COVID-19 and the Council struggled to identify carers. Social care records indicate this was a long-standing problem as while the family were eligible for support, it had not been possible to find suitable personal assistants since 2019.
32. The family were left without any additional support for the time Ms X’s son was without a school place. This points to a concerning lack of capacity in local care services even allowing for the impact of COVID-19. The Children and Families Act 2014 puts a duty on councils to keep social care provision inside and outside their area under review and to consider its sufficiency. Where a child meets the eligibility criteria for social care services under s.2 of The Chronically Sick and Disabled Person’s Act the Council is required to provide those services irrespective of cost.
33. The Council could have considered paying family members as personal assistants during this period, particularly if they had to reduce their employment. While there are safeguards about family members being used as carers, councils have discretion to allow this in individual cases.
34. I have made enquiries of School B which has confirmed it was able to implement the EHC plan in full except that it does not use the TEACCH approach. It was able to provide all the other provision including during the assessment period. I am therefore satisfied Ms X’s son has received appropriate education since November 2021.

Injustice

35. Ms X’s son lost out on eight weeks of education.
36. Ms X’s son lost out on a planned transition to his new placement.
37. The lack of transition and the gap in provision created distress and uncertainty for the whole family.
38. Ms X had to provide unexpected care to her son when she would have expected him to be in school and to have been able to work.
39. Ms X’s complaint about delay in consulting placements was upheld, but the Council did not offer any financial remedy. Had it done so Ms X may not have needed to bring her complaint to the Ombudsman, causing her additional time and trouble.

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Agreed action

Within four weeks of my final decision:

40. The Council will apologise to Ms X and her son for the faults identified in this investigation.
41. The Council will pay Ms X’s son £1200 for his loss of education between September and November 2021.This payment should be made in the name of the child and paid into an account over which parents have control.
42. The Council will pay Ms X £2400 for the unexpected care services she had to provide over an eight-week period (based on a rate of £10 per hour for thirty hours per week for eight weeks).
43. The Council will pay Ms X £150 for her time and trouble in bringing the complaint.

Service improvements:

44. The Council will highlight the capacity issues in this case to the appropriate Scrutiny Committee that is responsible for ensuring that sufficient education and social care services are available locally.

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Final decision

45. I have completed my investigation. There was delay by the Council in consulting special schools when a child with high level needs was due to transfer from primary to secondary, meaning the statutory deadline for naming a placement was missed. There was also delay in putting in place contingency arrangements for alternative education and support within the home when it became clear a school place would not be found in time. This caused distress, uncertainty, loss of education and placed additional demands on the family. I am satisfied the agreed actions set out above are a satisfactory remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman