Summary: Miss X complained her son did not have a school place from September 2021 and no suitable education was provided. Miss X also complained that the Council’s communication was poor and staff told her, wrongly, that a place had been found from September 2022. We could not investigate elements of Miss X’s complaint that carried appeal rights. However, we found there was fault in the way the Council dealt with the matter and communicated and this warranted a remedy.

The complaint

1. Miss X complained that her son (referred to as Y in this statement) did not have a school place from September 2021 when he should have started school. She also complained the Council did not provide a suitable education from September 2021 or ensure he received the provision set out in his Education and Health Care (EHC) plan from that date.
2. Miss X also complains that in November 2021 she was told a placement had been found, which her son could take up in September 2022. However, this proved to be incorrect.
3. Miss X complains her son has missed education and the situation has been stressful as she has also lacked the respite that a school placement would have provided.

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The Ombudsman’s role and powers

4. 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. (Local Government Act 1974, section 26(6)(a), 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 SEND Tribunal in this decision statement.
6. 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)
7. 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

8. 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. This includes the naming of school placements. I have not been able to investigate matters which carried appeal rights or issues which are inextricably linked to matters which could be appealed. The reasons for this are explained in this statement.

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How I considered this complaint

9. I considered the information Miss X sent to us and her complaint to the Council. I asked the Council for information and considered its response to the complaint.
10. Miss X and the Council 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

Background

11. In summer 2021, when Y was aged 4, the Council agreed he should have an Education and Healthcare (EHC) plan. At that time Y was attending a pre-school which was named in the EHC plan. An EHC plan was issued in mid-September.
12. The 2021 EHC plan did not name a school placement from September 2021 for when Y was due to start school. The Council told Miss X it had finalised the EHC plan stating Y should receive a special school placement and it would be consulting schools to find a placement. In the meantime, Y remained at his pre‑school. The EHC plan support that the plan set out was written on the basis it would be delivered in the nursery/school environment.

Mrs X’s complaint

13. Miss X explained that Y’s behaviour was worsening and a meeting was held to discuss the situation in November 2021.
14. Although Y’s EHC Plan did not identify a school place from September 2021, Miss X says she was told at the November meeting that Y would have a place at a special school from September 2022 (I refer to this as School A). The Council had no records from the November 2021 meeting but it conceded that officers did tell Miss X that Y had a place at School A from September 2022. This was not the case. The Council accepts that communication with Miss X about finding a school placement was poor.
15. A child must start full‑time education at the start of the next term after they reach compulsory school age (five years old). Y had his fifth birthday in summer 2022.
16. Miss X says she contacted School A in June 2022 to discuss Y’s start in September and only then was she aware he did not have a place.
17. In July 2022, the Council issued a revised EHC plan. It also did not specify a school place for Y. The Council provided us with a copy of the letter it sent with the EHC plan which explained how the content could be appealed and the support available to do so.
18. The Council told us it understood Y’s pre-school met Y’s EHC plan provision and continued providing his education until 31 July 2022. Miss X told us that Y struggled and did not receive his full EHC provision there.
19. In response to a complaint from Miss X, the Council stated it had consulted three schools in August 2021, including Miss X’s preferred school. It made a further referral in April 2022. I understand none of the schools had places available.
20. The Council stated it was working with schools to increase their capacity. It was also working to establish some short-term placements. In the meantime, it stated the Council must put education in place. It proposed home tuition and stated, while home tuition may be difficult, this was to support Y until a school place could be found. The Council told us that Y was too young for other site-based learning options they had available.
21. In September 2022 the Council made a referral to an agency to find a home tutor for Y. The Council commissioned 15 hours of tuition per week at home.
22. On 9 November the Council sent Miss X a draft EHC plan following a review.
23. In a further response to Mrs X’s complaint in November 2022, the Council apologised that no placement had been found. It apologised that no-one had responded to a call Miss X made. The Council acknowledged there were communication issues and these were being addressed via recruitment of more staff and changes to its systems and processes. The Council noted a draft EHC plan was issued and a further consultation had been made to School A. The Council stated the alternative provision was being sourced.
24. In January 2023, Y had his first home tuition session. However, Mrs X complained that home tuition was not working. She stated Y struggled to settle indoors and was frequently distressed. She stated his sleep pattern was made worse because she had to keep him awake for the tuition session. She also found the contact from the tutors to try and book sessions was stressful. The Council told us Miss X withdrew consent for home tuition to take place due to her concerns. Miss X told us the tutors were looking to put in place more tuition that she agreed.
25. We asked the Council what the proposed tuition entailed and whether any of Y’s EHC plan support was being provided. It stated, typically, tuition would provide any EHC plan provision that it could, outside of a school environment. However, it stated as Mrs X withdrew consent for the tuition it was not possible to deliver any of Y’s EHC plan support.
26. Y’s EHC plans detail support that should be provided by teachers and others across the school day, so it does not lend itself to be provided independently of a school environment.
27. Although School A had initially been her preferred choice, and School A had observed Y to see if they could meet his needs, Mrs X told the Council she had since heard some bad feedback which concerned her. She asked for two other schools to be consulted.
28. In January 2023 the Council sent Miss X a further revised draft of Y’s EHC plan. On 30 January the Council approved a personal budget of £50 per week for the family to use for activities with Y. It stated it agreed to fund 1 day of soft play, 1 day of trampolining and 1 day at a care farm each week.
29. The Council told us it consulted four schools in early 2023. They responded in January and early February 2022. Two stated they were full and two stated they could not meet Y’s needs. School A was one of these schools.
30. Miss X told us the Council issued a final EHC plan on 5 February which named School A from September 2023.

Was there fault by the Council

School Placements

31. In September 2021 the Council issued an EHC plan which did not name a school. There is a right of appeal to the SEND Tribunal about the content of a final EHC plan. An appeal right is engaged once a final EHC plan has been issued and it must be taken up within two months. We cannot normally investigate a complaint about an issue that someone can appeal to a tribunal about. As Mrs X could have appealed against the council decision not to name a school in September 2021, I have not investigated this issue.
32. Miss X argued that she would have appealed in 2021 if she had not been told in November 2021 that her son had a school place from 2022. She stated she was still able to appeal at that point. However, the EHC plan was issued on 16 September and the period for Miss X to make an appeal lasted for two months. It was not until after Miss X’s appeal rights ended that she met with the Council in November 2022. So, I remain of the view Miss X could have appealed the lack of a school place.
33. In July 2022, a further EHC plan was issued by the Council which also did not name a school. Because Miss X was aware at this point that no school was available, this was again a decision Mrs X could have appealed to a Tribunal. We found it would be reasonable to expect Miss X to appeal against the lack of a school place.
34. Miss X questioned whether she had been told how to appeal. The Council sent us a copy of the information provided with her son’s EHC plan in July 2022 which explained this.
35. However, we have found there was fault by the Council. The Council accepts that in late 2021 it led Miss X to believe that a school place was available to Y from 2022. She only discovered this was not the case in June 2022, so between November 2021 and June 2022, Miss X understood that in the longer term, a place was available for her son to take up. The Council accepted its position about finding Y a school place was poorly communicated. This caused frustration and stress for Miss X when she discovered, fairly close to when she expected Y to start school, that no place was available.

Alternative Provision

36. The courts have established that matters which are ‘inextricably linked’ to those subject to an appeal cannot be investigated by the Ombudsman. This means that if a person disagrees with the lack of a placement in an EHC plan we cannot seek a remedy for a lack of educational provision after the date the appeal was available. This is because any lack of education is linked to the disagreement about the lack of a school place, which could be appealed.
37. Until July 2022 Y was able to attend nursery and still received an education there. I note Miss X says that he did not receive his full EHC support there.
38. After July 2022 when Y was 5 years of age, an education should have been available, to start from September 2022.
39. However, in both the periods (September 2021 to June 2022, at Nursery, and the period from September 2022 until January 2023), the Ombudsman cannot seek to remedy any lack of education provision/EHC provision. This is because the lack of education between in those periods is linked to the lack of a school place, which was a matter that could have been appealed to a Tribunal in September 2021 and in June 2022.
40. From January 2023, the Council had agreed to put in place tuition at home. We found no failure to provide education after January 2023 because tuition had been put in place Council at that time. I recognise Miss X disagreed that the tuition would work for her son, but as the Council took steps to put provision in place from then, I do not consider there was fault by the Council.
41. We have recommended a remedy to reflect the frustration and stress that the poor communication about Y’s school place caused.

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Agreed action

42. Within four weeks of our final decision:
43. The Council should provide a written apology to Miss X for the poor communication and for incorrectly advising her that a place was available for her son from September 2022.
44. To recognise the frustration and stress the poor communication and incorrect information caused, I recommend the Council pays £250 to Miss X.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. There was fault by the Council. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman