Summary: Mr X complained about the Council’s failure to provide his son, Y, with a suitable education and support for his special educational needs. We found the Council to be at fault. There was significant delay in the process, failure to make adequate alternative provision, poor communication and complaint handling. The Council’s failure to issue an amended final Education, Health and Care Plan prevented Mr X lodging an appeal with the Tribunal. To remedy the injustice caused by these faults, the Council should apologise and make a payment to Mr X as well as taking action to improve its service.

The complaint

1. Mr X complains that the Council has failed to provide his son, Y, with a suitable educational placement and support for his special educational needs for several years. He specifically complains about:
1. delays in the Education, Health and Care Plan process;
2. failure to identify a suitable school place;
3. lack of alternative provision in the absence of a school place;
4. poor communication and case handling; and
5. poor complaint handling.
2. Mr X says this has had a detrimental impact on Y’s educational development and overall well-being. Mr X and the rest of the family have also been adversely affected because Y has been out of school for such a long time.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as “the Tribunal” in this decision statement.
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended
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.
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended
9. 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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What I have and have not investigated

10. Paragraph four (above) applies to this complaint.
11. Mr X complains about the Council’s actions since 2020. Part of his complaint is therefore late. I have investigated what happened from February 2022 to July 2023. This is because Mr X first complained to the Council about earlier events in December 2020. The Council issued its final complaint response in August 2021. I will not use my discretion to investigate earlier events because I can see no reason why Mr X did not complaint to us sooner, particularly as he was advised by the Council he could do so in August 2021.

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How I considered this complaint

12. I spoke to Mr X and considered the information he provided.
13. I made enquiries of the Council and considered its response and case records.
14. I reviewed the relevant law and guidance.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

16. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
17. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Annual reviews

18. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils. The guidance says councils should arrange for EHCPs to be reviewed at least every 12 months.
19. When changes are suggested to the draft EHCP and agreed by a council, it should amend the draft plan and issue the final EHCP as quickly as possible, and within eight weeks of the date the council must send the proposed amendments to the parents.
20. Where a council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHCP.
21. In any case the council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Alternative provision

22. 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).
23. The provision can be at a school or elsewhere, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
24. Full time education is usually between 22 and 25 hours per week. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
25. We have issued a Focus Report on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (“Out of school… out of sight? Ensuring children out of school a get a good education”, published in 2022).
26. Within the Focus Report we made recommendations that councils should:

• consider the individual circumstances of each case and be aware that councils may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, 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; and
• where councils arrange for schools to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure their duties are properly fulfilled.

What happened

27. The chronology below sets out a summary of relevant key events but is not intended to describe everything that happened.
28. Y has several diagnoses including Autistic Spectrum Condition and ADHD. He is of junior school age. He has had an EHCP since October 2020. Since September 2021 he attended School A, a special school. Despite a positive start, his attendance declined. A significant issue was Y’s transition from home to school in the morning due to attachment issues. On one occasion he tried to escape from a moving vehicle.
29. An annual review was held at School A on 4 February 2022. Mr X reported Y was no longer attending School A, in part due to concerns about his safety, and was being supported to learn from home by a teacher from School A. He requested a change of placement. He also asked for Y to be seen face to face by an educational psychologist with a view to updating the EHCP.
30. The recommendation from the annual review stated, “To ensure a successful transition to another provision, a collaborative approach will be needed and managed to ensure success which should start as soon as possible”.
31. Tuition at home proved unsuccessful. School A arranged alternative provision at an outdoor-based centre (Centre D) for three hours per week.
32. In May 2022, Mr X says a meeting was held where a change of placement was agreed by the Council. He was told potential schools would be consulted within two weeks. He also asked for more alternative provision.
33. Mr X carried out his own research into potential, suitable schools. He identified School P (an independent special school). He went to visit School P in May 2022 and was told places were available.
34. The Council received the annual review paperwork from School A on 27 May 2022. This led the Council to issue an amendment notice and draft amended EHCP in July 2022. A change of placement was proposed.
35. Consultations were carried out in August 2022 with two schools, School P and School A. By this time School P had no places available.
36. During this time, Y remained out of school. He continued to attend Centre D. This increased to one full day from September 2022. From May 2023 this was increased to three days per week at another alternative provider.
37. Further consultations were held in May 2023, but were unsuccessful in finding Y a suitable school place. The current position (as of July 2023) is that the Council has not issued the amended final EHCP and Y does not have a school place for September 2023. The Council says it is considering a bespoke package of home-based education.

Mr X’s complaint to the Council

38. Mr X complained to both the Council and the Ombudsman in late 2022. He complained about the lengthy delay, inadequate alternative provision and poor case handling.

39. Mr X’s complaint was upheld at stage one in December 2022. The Council accepted there was delay in the EHCP process and a lack of communication. The Council agreed to liaise with School A to see if any further help could be offered by way of alternative provision.
40. The Council has said the delay was caused by School A’s late delivery of its report, as well as staff sickness and turnover.
41. Mr X felt the Council had not properly addressed the matters he had raised and asked for his complaint to be escalated to stage two of the Council’s procedure. He also requested financial compensation. This request was not logged and the response want not sent until April 2022. His complaint was partially upheld.
42. Dissatisfied with this outcome and continued lack of case progression, Mr X asked the Ombudsman to investigate.

Analysis

43. In cases where a council has been unable to find a suitable school placement within a reasonable time frame, it has a duty to provide appropriate alternative education. We can also look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
44. In this context, I will consider Mr X’s separate areas of complaint below.

Delay in the EHCP process following an annual review

45. A final amended EHCP should be issued within 12 weeks from the annual review. In this case, 18 months has passed without this having been done. The Council has said this delay was due to late submission of the annual review paperwork by School A, together with high levels of sickness and staff turnover.
46. The Council should have processes in place with school to ensure the timely return of annual review documentation. I have seen no evidence that the Council asked School A to do so.
47. Once the paperwork was received in late May 2022, the Council issued the amendment notice without further delay and started consultations with potential placements. However, there was further drift in progressing the case once the consultation responses were returned without a place being offered to Y. As far as I can see, the Council has failed to provide an explanation for this.
48. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s significant failure to meet the required timeframes here amounts to fault and has had a direct impact on Y remaining out of school for such a long period of time.
49. The failure to issue a final EHCP has also denied Mr X of his opportunity to appeal to the Tribunal for over a year. This is injustice that requires a remedy (below)

Failure to identify a school place

50. The Council carried out its first round of consultations with possible schools in August 2022, six months after the annual review. This could and should have happened much sooner. Had the proper timetable been adhered to, consultations could have started in May 2022. This delay is fault.
51. The records show that since July 2023, four schools have been consulted, (including School A and School P), in August 2022 and May 2023. In my view this does not demonstrate the Council acted purposefully enough to find a school place. While I acknowledge the Council sought advice from relevant professionals between August and May, this could have happened much sooner and should not have had such a detrimental impact on the timeline.
52. Mr X feels particularly aggrieved because he believes Y missed out on a place at School P for September 2022.
53. Mr X has provided an email from School P stating that it had places available up until late June 2022.
54. While School P had capacity at the time the consultation should have taken place, this does not necessarily mean a place would have been offered to Y. The Council reconsulted with School P in May 2023 and it said it was unable to offer him a place because his needs could be met in mainstream school.
55. Regardless of this, the lack of an identified school place has caused significant distress and uncertainty for Y and his family. It is disappointing to see from the Council’s response to my enquiries that the matter will not be resolved in time for Y to start a new school in September 2023.
56. However, Mr X had several months of uncertainty, with an understandable belief that had missed out on a September 2022 place because of delay by the Council. This uncertainty is injustice and requires a remedy (below)

Inadequate alternative provision

57. Y has not attended School A since February 2022. He remains on its roll because another school place has not been found. School A has arranged and funded a limited amount of alternative provision. In its complaint response, the Council accepted this was insufficient and was not equivalent to a full-time education. I agree and make a finding of fault. For approximately one year, Y received only three/four hours of education per week. I note this has increased to three days from May 2023 and Y has benefitted from this increase.
58. As stated at paragraph 26 (above), councils retain responsible for ensuring pupils receive a full-time education. We expect councils to keep cases under review. I have seen little evidence of this having happened in the case records I have seen. The first record of contact between the Council and School A about Y’s alternative provision was in January 2023. By this time, Y had been out of school for a year. This lack of oversight is further fault.

Poor communication and case handling

59. The first record of Mr X contacting the Council expressing his disappointment and frustration about the lack of progress and educational provision for Y was in July 2022.

60. In response he was told the case worker was finalising the amendment notice. He was asked to specify his preferred placement. He was told his request for a direct payment would be actioned “as soon as I can”. Based on the records I have been provided with, there was no response to Mr X’s concerns about inadequate provision or direct payment.
61. Nor was Mr X informed about a change of case worker. The Council has said a new worker kept in regular contact with Mr X form the latter half of 2022, but I have seen little evidence of this in the Council’s case records.
62. It was not until the following March, when a new senior officer took responsibility for Y’s case, did the Council look properly at the alternative provision and made contact with Mr X. This prompted further amendments to the plan and another round of consultations with possible placements. A three day placement at a new provider was also arranged.
63. While I welcome this more recent improvement in activity and communication, it should have happened from the outset.
64. Overall, there was clear fault in the Council’s case handling and communication with Mr X. This made an already difficult situation much worse. I have made a recommendation below to remedy Mr X’s distress and frustration.

Poor complaint handling

65. Mr X first approached the Ombudsman in August 2022. His complaint to us was, at that time, premature and we asked the Council to respond within 20 working days. The Council failed to log this request. The Council has accepted this was human error and apologised.
66. This lack of response led to Mr X complaining to the Council in November 2022. The Council issued its stage one response the following month. Mr X replied saying he remained unhappy. Again, the Council failed to log this and did not reply. Following a reminder from the Ombudsman, a stage two response was sent in April 2023. As before, the Council has accepted it made a mistake and apologised.
67. There is clear faut with the Council’s complaint handling that raises concerns about the its procedures because the same mistake happened twice. I do not consider the Council’s apology is sufficient to properly acknowledge Mr X’s frustration, time and trouble. To do so, I made recommendations to the Council.

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Agreed action

68. When making recommendations, we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:

• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• where there has been a loss of education, the Ombudsman recommends between £900 and £2400 per school term. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.

69. To remedy the injustice caused by the faults I have identified, the Council hads agreed to take the following action, within a month of the final decision on this complaint.

• Apologise in writing to Mr X.
• Pay Mr X £1000 to recognise his distress and frustration caused by the Council’s significant delay in the EHCP process. This also acknowledges Mr X’s loss of appeal right to the Tribunal.
• Pay Mr X £250 to recognise his distress and frustration caused by the Council’s poor communication and case handling.
• Pay Mr X £100 to recognise his distress and frustration caused by the Council’s poor complaint handling.
• Pay Mr X £8000 for the period February 2022 to July 2023. Although this period of time spans five school terms, Y was still attending School Y for the first half of the spring 2022 term. I have also taken into account the level of alternative provision increased during the summer term 2023. For this reason, I have recommended a sum of £2000 per term of missed education and SEN support for the summer, autumn (2022) and spring (2023) terms. I have recommended £1000 for the spring 2022 and summer 2023 terms.
• Pay Mr X £250 to recognise the avoidable distress and frustration the inadequate alternative provision caused him.

70. Reflect on the issues raised in this decision statement and identify any areas of service improvement, particularly around communication with parents and delay in the EHCP process. It should also review its policies and procedures to ensure the Council retains oversight and responsibility for its duties to children unable to attend school, complaint handling and receipt of annual review paperwork.
71. The Council will prepare a short report setting out what it intends to do to ensure similar problems not reoccur. This report should be sent to the Ombudsman.

72. The Council will provide us with evidence it has complied with the above actions.

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Final decision

73. I have found the Council to be at fault. It has agreed with my recommendations to remedy the injustice to Mr X and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman