Summary: Miss X complained that the Council failed to make appropriate educational provision for her son. She also complained that the Council communicated poorly with her. Miss X said this meant her son missed out on educational provision he was entitled to. She said it also caused unnecessary distress, frustration, financial loss, and cost her time and trouble. We find the Council at fault for its poor communication with Miss X. This caused her injustice. The Council will make a payment to Miss X to remedy this. We do not find the Council at fault for educational provision.

The complaint

1. The complainant, who I refer to here as Miss X, complained that the Council failed to make appropriate educational provision for her son. She also complained that the Council communicated poorly with her.
2. Miss X said this meant her son missed out on educational provision he was entitled to. She said it also caused unnecessary distress, frustration, financial loss, and cost her time and trouble. Miss X said it is a constant battle to get what her son is entitled to.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
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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How I considered this complaint

7. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
8. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

9. The Education Act 1996 (Section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
10. This was amended by the Children, Schools and Families Act 2010 (Section 3), which made it the Council’s duty to provide full-time education from 1 September 2011. The only exception to this is under subsection 3AA of section 19 of the Education Act 1996, where the physical or mental health of the child is such that full-time education would not be in the child’s best interests.
11. The Courts have said it is for the council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access.
12. In 2013, the government published statutory guidance for councils: ‘Ensuring a good education for children who cannot attend school because of health needs’. This relates to a council’s duties under section 19 of the Education Act 1996.
13. This guidance says that there will be a range of circumstances where a child with health needs may receive a suitable education that meets their needs without the council having to intervene. An example of this would be where a child can attend school with some support, or where the school has made arrangements to deliver suitable education outside the school, or where arrangements have been made for the child to receive an education in a hospital.
14. The guidance says a council is not expected to get involved in those situations unless it had reason to believe the education provided to the child was not suitable or, where otherwise suitable, was not full-time or for the number of hours that child could benefit from without adversely affecting their health.
15. The guidance says the law does not define full-time education but says children with health needs should have educational provision equivalent to the education they would receive in school. For example, if they receive one-to-one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.

What happened

16. Miss X’s son, M, has special educational needs. M had been attending a mainstream primary school (School A) on a part-time timetable.
17. In March 2021, School A told the Council that M was at risk of being excluded. An outreach support service, which I will call ‘the Centre’, began providing support to M.
18. In April, M stopped attending School A altogether. He began attending the Centre for one hour per weekday.
19. In May, Miss X complained to the Council that M was not accessing any curriculum and was falling behind. She also complained that it failed to respond to her emails.
20. In June, the Council responded to Miss X’s complaint. It agreed it had failed to respond to Miss X’s emails and apologised for the distress this caused. It said it was working to implement measures to make sure this did not happen again. The Council said it hoped future communication would be more efficient and proactive.
21. Regarding education, the Council said M remained on roll at School A and was receiving support from the Centre. It said School A was named in M’s Education, Health and Care plan so School A was still responsible for delivering an appropriate curriculum while the Council consulted with other schools to find an appropriate place for M.
22. In July, the Council agreed that M should attend a specialist school.
23. In September, Miss X emailed the Council three times for an update on finding an appropriate school for M. At the end of September, the Council told Miss X it had found an appropriate specialist school for M (School B), but he would not be able to start there until September 2022, in 12 months’ time. Miss X asked the Council what would happen, in terms of M’s education, up to September 2022.
24. In October, Miss X emailed the Council twice for an update, asking the Council to answer this question along with two others. She said the lack of responses was causing unnecessary stress. Miss X then asked the Council to escalate her complaint to stage two of its complaints process.
25. The Council called Miss X the next day. It said it would chase matters up and contact her the following day with an update and next steps.
26. Between this time in mid-October and December, Miss X sent further emails every week, chasing the Council for an update and an answer to her questions.
27. In December, the Council wrote to Miss X. It apologised that she had struggled to contact someone in the Council’s Special Educational Needs and Disability (SEND) team. It assured Miss X contact would be improved.
28. Regarding M’s education, the Council said it was aware M had been attending the Centre for one hour per day. It said M was in the process of transitioning to School C, a mainstream primary that would be able to meet M’s needs in the interim, while he waited to start at School B.
29. In January 2022, the Council responded to Miss X’s complaint at stage two. It said its communication had been inconsistent and was not of the standard it would expect. It said it had reviewed its processes and implemented new procedures to improve communication moving forward. The Council said its SEND team was going through a restructure because it recognised this service was not meeting service users’ needs.
30. Regarding M’s education, the Council said M had been attending the Centre for one hour per day. It said M would be getting increased provision from School C while he waited to start at School B.
31. Miss X then brought her complaint to the Ombudsman.

Analysis

Educational provision

32. Miss X complains that the Council failed to make appropriate educational provision for her son, M, between April 2021 (when he stopped attending School A) and December 2021 (when he began attending School C).
33. The Council says subsection 3AA of section 19 of the Education Act 1996 applied here. Subsection 3AA says councils do not have a duty to provide a full-time education where the physical or mental health of the child is such that full-time education would not be in the child’s best interests. The Council’s view was that full-time education would not be in M’s best interests due to his health needs. I note that M had been on a part-time timetable at School A before he stopped attending there in April. The Council’s view was that a part-time timetable was in M’s best interests.
34. As I have said above, the guidance says councils are not expected to get involved where the school has made arrangements to deliver suitable education outside the school. This is unless councils have reason to believe the education provided to the child is not suitable or, where otherwise suitable, is not full-time or for the number of hours that child could benefit from without adversely affecting their health.
35. The Council found the education provided (arranged by School A, and provided by the Centre) was suitable for M. For this reason, the Council did not have to intervene and start providing an education for M.
36. The guidance says children with health needs should have the educational equivalent to the education they would receive in school. This means M should have received an education equivalent to the part-time timetable he had been receiving at School A.
37. I cannot find that the one hour per day educational provision at the Centre provided M with less than the part-time timetable he had been receiving at School A. I therefore cannot question the Council’s decision that the part-time timetable M received at the Centre was suitable education. This is a decision the Council is entitled to make.
38. For these reasons, I do not find the Council at fault.

Communication

39. Miss X complained that the Council communicated poorly with her.
40. The Council has accepted that it did not respond to Miss X’s emails as it should have.
41. I find the Council failed to respond to Miss X’s emails and failed to communicate with her when it said it would. This is fault.
42. The Council failed to answer Miss X’s repeated questions about how her son was going to be educated while he waited for his place at specialist school. This went on for a number of months. I find this caused Miss X injustice: she went to a considerable amount of time and trouble trying to communicate with the Council, and was caused frustration and unnecessary distress as a result.
43. The Council has apologised for its poor communication. It has explained that its Special Educational Needs and Disability (SEND) team was going through a restructure.
44. The Council says the SEND team restructure was completed in April 2022. It says it will take time to implement the restructure but will continue to monitor and review progress.
45. Miss X expresses frustration that the Council told her in June 2021 that it was implementing measures to improve communication, but its subsequent poor communication shows that the improvements made no difference.
46. I agree with Miss X and have found fault accordingly. It is clear that the SEND team was going through a significant restructure which has only recently completed. I agree with the Council that it will take time for the new systems to fully take effect. However, the Council should bear in mind at every stage that poor communication with service users is not acceptable.

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Agreed action

47. I am satisfied the Council has apologised for the injustice caused by its poor communication.
48. Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £600 to reflect the unnecessary distress caused to Miss X and to reflect her time and trouble. This is made up as follows:
• £300 to remedy the unnecessary distress caused: in arriving at this figure, I have considered the length of time involved, the repeated promises of improved communication without any meaningful improvement thereafter, and the impact this had on Miss X.
• £300 to remedy Miss X’s time and trouble: in arriving at this figure, I have considered the length of time involved, the efforts Miss X went to in trying to get a response from the Council, the number of emails the Council failed to respond to, and promises of responses which were not fulfilled.
49. In arriving at these figures, I have considered the Ombudsman’s published guidance on remedies. To remedy both distress and time and trouble, the Ombudsman usually indicates a range of between £100 and £300. I consider the higher end of the range for both Miss X’s distress and her time and trouble is appropriate, given the factors listed above.
50. The Ombudsman will need to see evidence this action has been completed.

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Final decision

51. I have completed my investigation. I find the Council at fault for communicating poorly with Miss X. This caused injustice. The Council has agreed to take action to remedy the injustice here.
52. I do not uphold Miss X’s complaint about educational provision. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman