Summary: Ms B complained the Council failed to secure the provision in her children’s education, health and care plans and secure places at the named school. She says this caused her and her children distress. Ms B also complained the Council did not arrange transport for her children to get to their named school. We found fault with the Council for a short delay arranging Ms B’s children’s educational placements. We consider the Council’s apology a suitable remedy for any injustice caused by its fault.

The complaint

1. Ms B complained the Council failed to secure the provision in her children’s education, health and care plans and secure places at the named school. She says this caused her and her children distress. Ms B also complained the Council did not arrange transport for her children to get to their named school.

Back to top

The Ombudsman’s role and powers

2. 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)
3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
4. If we are satisfied with an organisation’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)
5. 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.

Back to top

How I considered this complaint

6. I considered:
• Ms B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
7. Ms B and the Council commented on a draft decision. I considered their comments before making a final decision.

Back to top

What I found

Legislation and guidance

8. 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. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.
9. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. This includes:
• Section I: The name and type of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person).
10. The special educational needs and disability (SEND) tribunal hears appeals against decisions made by councils in England in relation to children's and young people’s EHC needs assessments and EHC plans. (Special Educational Needs and Disability Regulations 2014)
11. Where the Tribunal orders a council to amend an EHC plan, the Council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)
12. 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).

What happened

13. This chronology includes key events in this case and does not cover everything that happened.
14. Ms B has two children, P and Q. In September 2021, P was in year six and Q was in year three at School 1. Both children have an EHC plan.

Educational placement

15. The Council named School 1, a specialist school placement in P’s October 2020 and Q’s November 2020 EHC plans. Ms B appealed to the SEND tribunal. She said her preference was for School 2. School 2 was in a neighbouring council, Council 2.
16. In April 2021, Ms B stopped sending P to School 1. She said this was because he was assaulted at school.
17. The Council consulted with School 2 during the SEND appeal. In July 2021, it responded to the consultation. It said it could meet Q’s needs and a place would be available from September 2021. It advised it could meet P’s needs but would not have a place available until September 2022 at the earliest.
18. In September 2021, the SEND tribunal ordered the Council to amend P’s and Q’s EHC plans. It ordered the Council to replace section I in both their EHC plans with, “A special school placement, namely [School 2]”.
19. The Council issued P and Q’s final amended EHC plans in October 2021, within five weeks of the SEND tribunal. School 2 was named in both EHC plans. It sent a copy to Ms B, School 2 and the SEND department of Council 2.
20. School 2 told the Council, Council 2 said not to accept P and Q. Council 2 asked the Council why School 2 was named in P and Q’s EHC plans when School 1 had the same designation. The Council explained School 2 was Ms B’s preference and the SEND tribunal ordered it named in section I of P and Q's EHC plans. Council 2 advised School 2 to accept P and Q.
21. The SEND judge wrote to Ms B at the end of October. The judge told Ms B the Council must arrange P and Q’s placement at School 2 within five weeks of the order. It advised her to contact the Ombudsman if there was a delay. The judge sent a copy to the Council.
22. School 2 arranged for P and Q to start in the second week of November. School 2 had to delay this because the classes they were joining had a COVID-19 outbreak and were temporarily closed.
23. P and Q started at School 2 at the beginning of December 2021. School 1 removed them from their school roll.
24. The Council wrote to Ms B in December 2021 and apologised for the delays.

School transport

25. Ms B applied to the Council for school transport for P and Q in November 2021. The Council told her it had gone out to tender. The Council commissioned school transport for P and Q to School 2 from their start date in December 2021.

Analysis

26. Once the SEND tribunal has made an order the Council has five weeks to amend an EHC plan. The SEND tribunal ordered the Council to name School 2 in P and Q’s EHC plans in September 2021 and the Council issued their amended EHC plans within five weeks.
27. P and Q should have started at School 2 in November 2021. Their attendance at the school was delayed by four weeks. Part of this delay was because, at first, School 2 did not have a place available for P. The final two weeks of delay were because the classes P and Q were joining at School 2 had to close temporarily because of a COVID-19 outbreak. Therefore, the Council was responsible for two weeks of delay and this was fault.
28. During the period of delay, P and Q were on roll at School 1. They were not removed from the school roll until they started at School 2. Therefore, Ms B was able to send them to School 1 during the period of delay. School 1 is a specialist school placement and has the same designation as School 2. Ms B said P could not attend School 1 because he had been assaulted there. The Council said he was able to attend and I have not received any supporting evidence that contradicts this. Therefore, on the balance of probabilities, P was able to attend School 1 and I do not consider the Council responsible for any lost provision during the two week delay.
29. The Council secured school transport for P and Q to start at School 2 at the beginning of December 2021.
30. The delay put Ms B to time and trouble chasing the Council to secure a place at School 2 for her children. The Council apologised to Ms B for this delay. I consider this a suitable remedy for the injustice caused by its fault.

Back to top

Final decision

31. I have completed my investigation and uphold Ms B's complaint. There was fault by the Council which caused injustice to Ms B. I am satisfied the Council has taken action to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman