Summary: Miss X complained that the Council failed to provide her son with full-time education when his educational setting could no longer offer him a place. Miss X said this meant her son missed education, and caused financial hardship and unnecessary distress. We find the Council at fault, and this caused injustice. The Council has agreed to make a payment to Miss X to reflect the injustice caused.

The complaint

1. The complainant, who I refer to here as Miss X, complained that the Council failed to provide her son with a fulltime education when his educational setting could no longer offer him a place.
2. Miss X said this meant her son missed a year of education. She said it caused financial hardship because she funded his education in this time. She said it also caused unnecessary distress, anxiety, and stress.

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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 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 considered the Ombudsman’s published guidance on remedies. I also considered the Ombudsman’s guidance for councils in complaint handling, ‘Effective Complaint Handling for Local Authorities’ (published October 2020).

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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. Government-published guidance says where a council has identified that alternative provision is needed, it should make sure it is arranged as quickly as possible and that it appropriately meets the needs of the child. The guidance also says that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.
11. The Courts have said it is for the council to determine what is ‘suitable education’.

What happened

12. Miss X’s son, B, has special educational needs. For some time, until September 2021, B had been receiving a part-time education through a centre for children with educational needs.
13. In early September 2021, the centre told the Council that B was no longer on roll there. Within two weeks, the Council contacted Miss X with a choice of alternative educational provision options for B. It said that since B had not been accessing education in a meaningful way for some time, it suggested a slow start. The Council recommended a combination of tutoring and mentoring/therapeutic activities, totalling six hours per week.
14. At the end of October, the Council’s Special Educational Needs and Disability (SEND) panel agreed a package of alternative provision for B. The alternative provision started at the beginning of November.
15. The Council found a placement for B at a suitable school but this could not start until the summer term in 2022.
16. In May 2022, Miss X complained to the Council.
17. The Council apologised for the length of time it had taken to find B a suitable school placement. The Council recognised the financial impact this had on Miss X. It apologised for the financial hardship this caused and for the emotional impact on Miss X.
18. Miss X then brought her complaint to the Ombudsman.

Analysis

19. The Council accepts that there was a gap in providing B with suitable alternative provision from September, when he was taken off the centre’s roll, to the beginning of November, when the package of alternative provision was put in place. This is fault.
20. I find the Council did not delay in starting to arrange a package of alternative provision. This was good practice. However, there was a delay in implementing the package. This left B without suitable alternative provision for approximately two months. The impact of this missed provision on B is injustice. I also find it caused Miss X unnecessary distress, which is also injustice.
21. From November 2021 until B started a school placement in April 2022 (the start of summer term), he received alternative provision arranged by the Council. The Council considered this package of part-time alternative provision met B’s needs.
22. In September, the Council explained to Miss X its reasons for recommending B start with part-time alternative provision.
23. I do not find the Council at fault for the level of alternative provision put in place from November 2021 to April 2022. As I have said above, the Courts have said it is for a council to determine what is ‘suitable education’. The Council assessed that this part-time package of alternative provision was suitable for B. I have seen nothing that persuades me the Council was wrong to decide that part-time provision was suitable for B.
24. However, the Council told the Ombudsman that “once provision had been set up there were then further gaps in his provision”. I find this means there were gaps in the alternative provision between November 2021 and April 2022.
25. The Council has not told the Ombudsman the reason for these gaps or how long they were. Miss X says there were gaps every 12 weeks when funding ran out and the Council had to reapply for funding.
26. Given a lack of Council response on this point, or evidence to contrary, I am persuaded that there was at least one gap in B’s provision in the period between November 2021 and April 2022. This is fault. A child should not miss out on education, or alternative provision, simply because of administrative procedures.
27. I am satisfied the Council has already apologised for the injustice caused by the fault. However, the Council recognises it did not offer a financial remedy to Miss X for the injustice it acknowledged in its complaint response (financial hardship and the emotional impact on Miss X).
28. The Council told the Ombudsman it is “unable to offer [a financial remedy for the injustice] within [its] complaints process”. This is not in line with published Ombudsman guidance for councils (‘Effective Complaint Handling for Local Authorities’).
29. This guidance advises councils, when dealing with complaints, to consider the impact (which is injustice) of what went wrong (which is the fault) on the complainant. It says:

“Focus less on what went wrong, and more on the consequences. The injustice.

Any remedy should be appropriate and proportionate to the harm suffered.

If there is no other way to put things right, consider a financial remedy payment in line with our Guidance on Remedies.”

30. There is no evidence to suggest the Council considered a financial remedy.
31. Miss X may not have felt the need to come to the Ombudsman had the Council considered a financial remedy for the financial hardship it acknowledged had been caused by the fault. I find this was a missed opportunity to try to resolve the complaint to Miss X’s satisfaction. The Council may wish to reflect on this, particularly given the financial remedies below.

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Agreed action

32. The Council accepts that it failed to secure alternative provision for B in September and October, and that there were “gaps” in provision after it started in November.
33. I have considered the Ombudsman’s published guidance on remedies which sets out a payment of between £200 and £600 per month to acknowledge the impact of loss of educational provision.
34. In arriving at the below figure, I have taken into consideration: B’s needs; the provision that was in place, when and for how long; that B was on the centre’s roll until early September 2021; that additional provision cannot now remedy some or all of that loss; and, where B was in his academic career at that time. I have also included that there was at least one gap in B’s alternative provision between November and April.
35. I consider that a payment of £250 per month for the two months B did not have alternative provision (September and October) is appropriate and proportionate. This equates to £500.
36. The Ombudsman can also consider recommending a council reimburse money a parent spent on educational materials during the time a child was without education. This is in line with the Ombudsman’s guidance on remedies.
37. I have considered what Miss X said she spent on educational materials. I have considered that Miss X said she did not know what education B should be receiving or how to provide it as she had no support from the Council. I find that Miss X would not have had to spend this money on educational materials had the Council put alternative provision in place sooner. These were therefore unnecessary costs.
38. For this reason, I consider it appropriate and proportionate to recommend the Council reimburses Miss X a portion of the money she spent on educational materials, as follows:
• £170 for a printer
• £25 for ink
• £100 for educational materials
39. Together, this totals £295.
40. The Ombudsman usually recommends a payment of between £100 and £300 to remedy unnecessary distress. Taking into account all the factors in this case, I consider a payment of £100 is proportionate and appropriate to remedy the unnecessary distress caused to Miss X.
41. I therefore I recommended the following, which the Council has agreed to:
42. Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £895. This is made up of £500 to recognise the impact of two months of missed provision, £295 for educational materials, and £100 for unnecessary distress.
43. The Council should provide us with evidence it has complied with this action.

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Final decision

44. I have completed my investigation. I uphold Miss X’s complaint because I find fault causing injustice. The Council has agreed to make a payment to Miss X to reflect the injustice caused.

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Investigator's decision on behalf of the Ombudsman