• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms B says the Council failed to provide education to her son when she moved into the Council’s area and unreasonably refused to take her complaint to stage two. The Council delayed putting in place provision for Ms B’s son. An apology, reminder to officers and payment to Ms B is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained the Council:
   • failed to provide education to her son when he moved into the Council’s area in August 2021; and
   • unreasonably refused to take her complaint to stage two.
2. Ms B says fault by the Council left her son without education and has added to her mental health issues.

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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. 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

5. As part of the investigation, I have:
   • considered the complaint and Ms B's comments;
   • made enquiries of the Council and considered the comments and documents the Council provided.
6. Ms B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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 should have happened

8. The Special Educational Needs Code of Practice (the code) says where a child or young person moves to another local authority, the ‘old’ authority must transfer the education, health and care plan (EHCP) to the ‘new’ authority. The old authority must transfer the EHCP to the new authority on the day of the move, unless the following condition applies. Where the old authority has not been provided with 15 working days’ notice of the move, the old authority must transfer the EHCP within 15 working days beginning with the day on which it did become aware.
9. The code says the requirement for the child or young person to attend the educational institution specified in the EHCP continues after the transfer. However, where attendance would be impractical, the new authority must place the child or young person temporarily at an appropriate educational institution other than that specified – for example, where the distance between the child or young person’s new home and the educational institution would be too great – until the EHCP is formally amended.
10. Section 19 of the Education Act 1996 (the Act)) says education authorities 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.
11. The Government has issued statutory guidance on alternative provision (Ensuring a good education for children who cannot attend school because of health needs 2013). This says while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also says the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It says some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.
12. The Ombudsman has issued a focus report on provision for children out of school. ‘Out of school….out of mind? How councils can do more to give children out of school a good education.’ This says when a child moves into its area, the council should allow the parents to say which school(s) they prefer and try to meet their request. If this does not result in a school place being offered within a reasonable time, the Ombudsman considers the Council should provide suitable education in some other way, such as home tuition.
13. The Council’s corporate comments, compliments and complaints policy (the policy) says the first stage in the complaints procedure is local resolution. This will usually require the relevant manager to respond in writing to the complainant. Complaints should be acknowledged within 5 working days and a response should be provided within 20 working days.
14. The policy says if attempts to resolve the complaint at stage one are not successful the complainant can ask for the outstanding issues to be considered at stage two. Within 5 working days the Council will notify the complainant if the complaint is to be investigated at stage two. The policy says if the complaint is not to be progressed to stage two the Council will notify the complainant of the decision and the reasons why within five working days.

What happened – education

15. Ms B was living outside the Council’s area with her children. The child who is the subject of this complaint has an EHCP and had been out of education since 2019.
16. Ms B contacted the Council on 14 July 2021 to tell it she intended to move into its area. Ms B told the Council about her son’s EHCP and the fact he had been out of education since 2019.
17. Ms B moved into the Council’s area on 12 August 2021. The Council requested the paperwork from the previous council and some information was provided by the end of August 2021.
18. On 6 September the Council told Ms B it was making an interim referral to the alternative tuition service. Ms B asked the Council about the chances of her attending an independent setting as he had been out of education for so long. Ms B told the Council a local college had told her it had places available and could offer a one-to-one education plan.
19. The Council suggested alternative education providers on 9 September, which Ms B agreed to consider. Ms B said she considered her son required a smaller setting due to the amount of education he had lost out on.
20. The Council’s specialist education panel on 13 September agreed to consult a provider for immediate admission. The Council consulted the provider, although Ms B told the Council she wanted her son to attend the college she had identified on 21 September. On 11 October the education provider the Council had consulted told it that it did not consider it was a suitable placement for Ms B’s son.
21. The specialist education panel agreed to consult other education providers on 25 October, which the Council proceeded to do.
22. In November 2021 Ms B asked the Council whether it had consulted her chosen college. Ms B made clear she did not want her son to attend an alternative provision setting.
23. The Council received further consultation responses in November and December 2021. All the responses were negative.
24. The Council consulted Ms B’s chosen college in January 2022. In February 2022 the college provided a negative consultation response.
25. The Council identified Provider X as a potential education placement. Ms B agreed that could accommodate more of her son’s interests than her chosen college. In March 2022 the specialist education panel agreed funding for Provider X. Ms B’s son began attending that provision at the beginning of April 2022. Ms B’s son is initially attending nine hours per week, with the intention for those hours to increase when he is ready for it.

What happened - complaint handling

26. Ms B put in a complaint about the lack of provision for her son in October 2021. Ms B told the Council that despite providing it with information about her son he had not received any education since moving into the Council’s area. The Council responded to that complaint at stage one on 11 November 2021. As Ms B was not happy with that response she asked the Council to move her complaint to stage two. The Council told Ms B on 19 November it would arrange for an assistant director to provide a further response which would provide a reply within a shorter timescale than would be the case if the Council took the complaint to stage two. The Council provided a further response at stage one on 22 December. When Ms B expressed concern about the Council’s response it declined to take the complaint to stage two as it was satisfied it had provided detailed responses twice at stage one.

Analysis

27. Ms B says the Council failed to provide education to her son when he moved into the Council’s area in August 2021. The evidence I have seen satisfies me the Council knew about Ms B’s impending move into its area in July 2021. Despite that I have found no evidence to suggest the Council began the process of seeking an education placement for Ms B’s son until September 2021. I appreciate the Council had difficulty identifying a suitable placement for Ms B’s son which delayed the provision of education. However, the Ombudsman would expect the Council to consider putting in place alternative provision in the interim, such as home education, pending its ability to identify a suitable placement. I have seen no evidence to suggest the Council considered any alternatives while waiting for a suitable placement for Ms B’s son. That is fault as the Council retained the responsibility for ensuring Ms B’s son received education. As a result of that fault Ms B’s son missed out on education between September 2021 and March 2022.
28. The Ombudsman normally recommends an amount between £200 and £600 per month when a child misses education as a result of fault by the Council. The Ombudsman will normally recommend an amount at the top of the range where a child has not received any education at all. That is the case for Ms B’s son who also missed out on any provision in his EHCP. I therefore recommend the Council pay Ms B £600 for each month her son missed out on education between September 2021 and March 2022, which is six months, to be used for the benefit of his education. That makes a total of £3,600. It is also clear having her son at home for an extended period has added to Ms B’s mental health issues, although I appreciate that Ms B’s son had in any case been out of education for some time before he moved into the Council’s area. In those circumstances I consider an additional payment of £300 to Ms B to reflect her distress and time and trouble a satisfactory outcome. The Council has agreed to my recommendations.
29. I recognise Ms B also has concerns about the Council’s consideration of her chosen education setting. The evidence I have seen satisfies me Ms B confirmed her chosen education setting on 21 September 2021. I am aware the Council did not consult that college until January 2022. I understand Ms B’s concern about that delay. It is clear there were reasons for the Council not considering the college initially, particularly due to its OFSTED report. However, it is also clear the college told the Council it did not consider it could provide education to Ms B’s son. I therefore do not consider the delay consulting the college resulted in Ms B’s son missing out on education for longer than the six months I refer to in the previous paragraph. However, I am concerned the Council did not properly explain the position with the college to Ms B until it responded to her complaint in December 2021. That is fault. The Council has apologised for that, which I welcome.
30. Ms B says the Council unreasonably refused to take her complaint to stage two. The Council says its complaints procedure gives it discretion on how to consider a complaint following the conclusion of stage one. The Council says it finds supplementary responses at stage one can be provided within the same timeframe at stage two and is often the most effective way of resolving a complaint. I set out the stage one and two processes in the Council’s complaints procedure in paragraphs 13 and 14. The Council’s complaints procedure makes clear moving a complaint to stage two is not automatic. In this case the Council decided not to progress the case to stage two as it was satisfied it had provided detailed responses at stage one twice. As the Council’s complaints procedure provides for it to decline to take the complaint to stage two I cannot criticise the Council for doing so in this case.

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Agreed action

31. Within one month of my decision the Council should:
    • apologise to Ms B;
    • pay Ms B £3,600 for her to use for her son’s educational benefit; and
    • pay Ms B an additional £300 to reflect her distress and the time and trouble she had to go to;
    • send a memo to officers in education to remind them of the need to consider putting in place alternative provision, including home tuition, when a child is out of education and an alternative placement cannot be identified immediately.

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Final decision

32. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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