Summary: There was fault by the Council. The Council delayed arranging alternative educational provision once it accepted her son’s primary school was unsuitable. There was no education provided for her son after March 2022. The Council’s apology, review of arrangements and payment remedies the injustice to Miss X and her son.

The complaint

1. The complainant, who I shall call Miss X, complains the Council delayed arranging alternative educational provision once it accepted her son’s primary school named in his Education, Health and Care (EHC) plan was unsuitable.
2. Miss X also complains the Council has not provided any education for her son after March 2022.

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What I have and have not investigated

3. I have investigated this complaint until the Council issued a new EHC plan in October 2022. Matters after this date can be considered as a new complaint in the future.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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 read the papers put in by Miss X and discussed the complaint with her.
8. I considered the Council’s comments about the complaint and any supporting documents it provided.
9. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

10. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
12. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Key facts

13. Y is at primary school. He has an EHC plan. In August 2019 he moved house, into the Council’s area. The Council was not made aware of this until March 2021, after Miss X withdrew Y from school in his previous home borough and the annual review of the EHC plan was due.
14. The annual review happened on 22 April 2021. The Council did not attend this meeting.
15. On 11 June the Council offered Y a place a primary school, which Miss X refused as she wanted a specialist provision. The Council arranged home tutoring for Y and issued a final EHC plan, naming the tutors on 28 June 2021. Y received 2 days a week home tuition. The EHC plan named the tutor and said ‘Y will be provided with a statutory package of SEN support which is to be used to meet Y’s SEN needs and achieve the identified and agreed outcomes as defined in his EHC Plan’.
16. The Council wrote to Miss X in September 2021 to say it was reassessing Y to determine suitable educational provision. The Council issued a new draft EHC plan on 27 October, before the Educational Psychologist assessed Y.
17. Miss X asked the Council what was happening with Y’s transfer to secondary school in January 2022. A new draft EHC plan was issued on 15 February 2022, with the tutor as provision until July 2022 with a specialist provision from September 2022 onwards.
18. Y’s tuition stopped as the tutor was sick in March 2022.
19. Miss X made an official complaint to the Council. The complaint investigation of July 2022 upheld her complaint as it found the following fault:
• The Council should have attended the annual review in April 2021.
• The reassessment of Y’s Special Educational Needs agreed in September 2021 took too long. It should have been complete by 13 December 2021, it took till 15 February 2022 and there were errors in the content.
• The Council failed to meet deadlines about Y’s transfer to secondary school.
• There was delay from March to June 2022 in arranging tuition for Y and there was no tuition after 4 March 2022.
20. The Council made the following recommendations:
• It should apologise.
• It should pay Miss X £3000, made up of,

£1000 to acknowledge the stress and distress its faults have caused to her.

£1000 to acknowledge the education Y has missed. In arriving at this figure, the Council took account of the fact that Y did receive some education, and will access a differentiated curriculum at secondary school which will enable him to recover the lost education at a suitable pace.

£500 to enable Miss X to organise additional out-of-school activities for Y which will help him develop his social skills

£500 to buy Y something he really wants (or take him somewhere he really wants to go), to acknowledge the experiences he has missed over the past year.

• The Council should arrange counselling or art/music/drama therapy sessions for Y, on top of whatever provision is specified in his EHC plan, to take place from now until the end of his first term at secondary school, to help him adjust back into an educational setting.
• The Council should review its arrangements for case allocation and supervision to make sure that officers are able to make the right decisions in complex cases.
3. The Council issued a new EHC plan on 17 October 2022, with the placement type of a specialist school. The Council emailed Miss X on then to say that it would be putting interim educational provision in place until it found a school place.
4. The Council offered Y a school place in November 2022, but Miss X turned this down on 28 November.

My analysis

23. The Council’s independent adjudication report of July 2022 found fault by the Council, so I do not intend to reinvestigate events. However, the remedy for lost education, in particular, is lower than the Ombudsman would recommend. Our guidance says ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment for between £200 and £600 a month to acknowledge the impact of that loss’.
24. From June 2021 until March 2022 Y received tuition, 2 days a week, during this period. Y’S EHC plan named tuition but it did not specify the number of days tuition. As Miss X did not appeal this provision, then the Ombudsman would not propose any remedy for this period as the Council supplied the tuition in the EHC plan.
25. Y was out of school from 24 March 2021 and tuition was not provided until 28 June. The Council’s report identified fault, in that alternative provision was not provided quickly enough. I understand that some work was provided by the school, but I consider the remedy for this period should be at the higher end of our remedy guidance, at £400 a month. There were some periods of holiday and it would have taken some time to organise tuition, so I propose a payment of £400 for approximately one month’s lost education for this period.
26. From 4 March 2022 until October 2022 Y received no tuition or education. This is fault and I consider that our maximum remedy of £600 per month would be appropriate for this period. This is a period of 8 months, which would include 9 weeks or 2 months of holidays. So, I consider a remedy of 6 x £600 would be appropriate, a payment of £3600.
27. This increases the total payment to Miss X from £3000 to £6000.

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Agreed action

28. Within one month of the date of the decision on this complaint the Council should:
• apologise.
• pay Miss X £6,000.
29. Within two months of the date of the decision on this complaint the Council should:
• Arrange counselling or art/music/drama therapy sessions for Y, on top of whatever provision is specified in his EHC plan, to take place from now until the end of his first term at secondary school, to help Y adjust back into an educational setting.
• Review its arrangements for case allocation and supervision to make sure that officers can make the right decisions in complex cases.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation of this complaint. This complaint is upheld, as there was fault by the Council that caused injustice to Miss X and her son. The actions described above remedy this injustice.

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Investigator's decision on behalf of the Ombudsman