Summary: The Council was at fault for not providing Y with education in line with his Education, Health and Care plan from September 2021 to 21 February 2022. The Council has agreed to remedy to our recommendations to remedy the injustice caused by the fault.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council failed to provide her child, Y with any education from 1 September 2021 to 21 February 2022 and it failed to provide him with provision in his Education, Health and Care (EHC) Plan. Mrs X also complains the Council failed to arrange a sensory assessment for Y.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)

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How I considered this complaint

6. I considered Mrs X’s complaint and the information she provided.
7. I considered the information I received from the Council in response to my enquiries.
8. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I did not receive any comments to be considered before I made this 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

Law and Guidance

Special Educational Needs

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child/ young person’s needs and what arrangements should be made to meet them. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place.

Educational provision

11. The Council has a duty to “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
12. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
13. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
14. The Local Government Ombudsman has issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made seven recommendations including that councils:
• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take account of the evidence when making decisions.
• Choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative education.
• Keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.
• Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

What happened

15. Y has special educational needs and has an EHC Plan. Y was attending a specialist school (School 2) named on his EHC Plan. In June 2021, Mrs X withdrew Y from the school due to an incident. School 2 subsequently closed in July 2021.
16. Mrs X appealed to the SEND Tribunal in August 2021 about the lack of placement. Mrs X also complained to the Council about the lack of support for Y and the lack of a placement. The Council conceded to Mrs X’s appeal to the SEND Tribunal because a placement had not been named for Y.
17. The Council says Y was accessing alternative therapy provision and this partially met the provision in his EHC Plan. It says Y was attending two days a week from 28 September 2021 and this increased to three days in November 2021.
18. The Council secured a placement for Y at School 3 on 31 January 2022. Y began attending School 3 on 22 February 2022.
19. The Council acknowledged it had delayed in finding a suitable placement for Y. It apologised to Mrs X and offered her a remedy payment of £150 for the time and trouble in pursuing the complaint.
20. The Council wrote to Mrs X again in January 2022 and increased the remedy offer. The revised offer included £1000 for loss of provision between September 2021-December 2021 and £500 for the loss of provision in January 2022 and February 2022. Mrs X has not accepted the remedy offered by the Council.

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Analysis

Alternative provision

21. From September 2021 to 22 February 2022 Y did not have a placement. The Council arranged tuition however Mrs X and an Educational Psychologist did not deem it appropriate for Y. The Council says Y was accessing alternative therapeutic provision (ATP) prior to his placement at School 3 and the provision in his EHC Plan was ‘partially met’ here. Mrs X remains of the view Y did not receive any of the provision in his EHC Plan. If Y did receive some alternative provision, the information the Council provided me with shows it was minimal and it was not suitable. I have not received any evidence of a clear, structured plan to support Y during the relevant period. I find the Council’s failure to ensure Y received a suitable education while he did not have a placement amounts to fault.
22. The Council has acknowledged there was a lack of provision from September 2021 to 21 February 2022 and it has offered Mrs X £250 per month to recognise this. But I do not consider this is sufficient. Where fault has resulted in a loss of educational provision, the Ombudsman normally recommends a remedy payment of between £200 and £600 per month to acknowledge the impact of that loss. The recommended figure takes account of factors such as the child’s special educational needs and whether the child has received any educational provision during the period.

Sensory Assessment

23. Mrs X says the Council delayed in arranging a sensory assessment for Y when it was first identified in September 2021 that it was needed. The Council says the assessment was due to take place at ATP however Mrs X requested that it took place at the new school once one had been identified.
24. Y’s placement at School 3 was secured on 31 January 2022 but it did not commence until 22 February 2022. The sensory assessment did not take place until May 2022. I find the Council at fault for this delay. The delay caused frustration and uncertainty for Mrs X and Y. The delay in the assessment is likely to have delayed the support Y needed with his diagnosis of sensory food aversion.

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Agreed action

25. To remedy the injustice caused by the faults, the Council has agreed, that within four weeks of this final decision, it will pay Mrs X:
• £100 to recognise the time and trouble in pursuing her complaint;
• £150 for the frustration, anxiety and uncertainty caused by the delays; and
• £3000 to recognise the impact of the lack of suitable education or support for Y between September 2021 and 21 February 2022.
26. The payments for lack of suitable education should be used for the benefit of Y’s health and wellbeing or to support his special needs.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. There is fault by the Council and it has agreed to our recommendations to remedy the injustice caused by the faults. I have now completed my investigation of this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman