Summary: Mr X complained about the Council not agreeing a specialist school placement for his daughter. He also complained she was attending her current school for only two hours a day. We found fault with the Council for not taking appropriate action to provide additional provision for his daughter when it was aware she was not attending school full-time. The Council has agreed to our recommendations to remedy this injustice.

The complaint

1. Mr X complains about the Council's actions relating to a special school placement for his daughter, which he said was originally agreed in 2021. She is currently attending a school who cannot meet her needs and has been attending for two hours a day. He says this has caused stress and frustration. His daughter has not progressed as she should have and is not getting the education she is entitled to. He and his family have also been financially affected as his wife had to give up work to look after their daughter during the day.

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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. 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)
4. 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)
5. 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 have and have not investigated

6. Mr X complains of matters from June 2021. Part of his complaint refers to an annual review and what was discussed in it. I consider this is late as he could have complained to us about this part sooner. Therefore, I am not taking a view on this part specifically. I have mentioned what happened in Paragraph 21 for relevant background and context for the rest of the complaint.

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How I considered this complaint

7. I discussed the complaint with Mr X and considered his views.
8. I made enquiries of the Council and considered its written responses and information it provided.
9. Mr 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

Law and administrative background

Education, Health and Care Plans (EHCP)

10. 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. The EHCP 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. 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.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
13. 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 EHCP 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).

Alternative provision/Part time timetables

14. 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). We refer to this as section 19 or alternative education provision.
15. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
17. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
18. We issued a focus report “Out of school, out of sight?" in July 2022. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children receive suitable full-time education. This also says councils should keep all cases of part-time education under review.
19. The Department for Education (DfE) non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. A part-time timetable must not be treated as a long-term solution.  Any pastoral support programme or other agreement must have a time limit by which point the pupil is expected to attend full-time or be provided with alternative provision.

Background

20. Mr X’s daughter (“C) has an Education, Health and Care Plan (“EHCP”). She has Global Development Delay with significant speech and language delay.
21. In June 2021, an annual review of C’s EHCP was held. Part of Mr X’s complaint is the Council did not carry out what he said had been agreed in this meeting. He said it discussed C attending a specialist secondary school (School 2) to start in September 2021, a year early, but said nothing happened. C continued to attend her primary school (School 1) after the summer. Mr X said the Council had then contacted him in autumn to discuss C’s placement for the following year.

What happened

22. In October 2021, Mr X’s request for a specialist secondary school placement at School 2 was heard at an internal decision making panel (“Panel”). The Panel decided there was no evidence or provision identified to suggest C’s needs could not be met in a mainstream setting. A draft plan was issued. The Council sent out school consultations. One was to School 2 as the parental preference, the rest were to mainstream settings. School 3 responded it could offer C a place.
23. In January 2022, the Council emailed Mr X to advise it considered C’s needs could be met in a mainstream setting. A final EHCP was issued naming School 3 for September 2022.
24. In March, an annual review was held due to Mr X raising concerns C’s EHCP needed amendments after recent assessments of her needs.
25. In April, a draft plan was issued. The Council sent out four further school consultations, including School 2. C’s case was returned to Panel. It did not support a referral for a specialist placement, deciding her needs could be met in mainstream. School 2 replied saying it could offer C a place. School 4 replied it could not meet C’s needs.
26. In June, a final amended EHCP was issued. The Council named School 4 for C to attend in September 2022, after consideration of all consultation responses. Section F (Special Educational Provision) said C would be supported by the equivalent of 23.5 hours per week.
27. At the start of August, Mr X attended a mediation session. At the end of August, Mr X lodged an appeal to the SEND Tribunal against the named mainstream setting, School 4.
28. At the end of September 2022, Mr X formally complained to the Council. He was dissatisfied with the Council not agreeing to specialist provision being appropriate for C for her secondary school education. He said their desired preference School 2 had said it could offer a space to C, but the Council named School 4 instead, who said it could not meet C’s needs. He said all the evidence showed that C needed a specialist placement, but the Panels had ignored this.
29. In January 2023, Mr X complained to us. The Council confirmed to us it had not completed its complaints process and it was working on a Stage One response to Mr X.
30. In February, the Council responded to Mr X’s complaint. It was satisfied with its actions when considering his request for specialist provision. It said the Panel had reached the decision based on evidence it had that mainstream provision was appropriate for C. The EHCP had a suitable named education setting to meet her needs. It did not uphold the complaint.
31. At the start of March, Mr X escalated his complaint. He added that since autumn of 2022, C was attending School 4 for only two hours per day to receive one-to-one support. This had been discussed with School 4 to accommodate her needs. He said his wife had given up work as she had to look after C during the rest of the day when C was not at school.
32. At the end of March, the Council said it conceded Mr X’s appeal after it received an offer of a placement from School 2. A consent order agreed School 2 would be named in C’s EHCP to attend from September 2023.
33. At the start of April, the Council responded to Mr X’s complaint escalation. It acknowledged School 4 was no longer able to meet C’s needs. It agreed her needs could be met at School 2 from September 2023. Until she started there, it said it would work with School 4 to discuss an alternative educational package for C. It stood by its previous decision to name School 4 as decided by the Panel. It apologised for the distress caused. It partly upheld the complaint.
34. At the end of April, the Council issued the final amended EHCP naming School 2.
35. We then considered Mr X’s complaint after he received this final response.

The Council’s response to my enquiries

36. The Council said between November 2022 and March 2023, the case officer left. The handover process was not handled properly, and the Council did not have access to the officer’s emails. This included communication between School 4.
37. It accepted there was delay with its Stage One response to Mr X’s complaint due to pressures and changes in staffing. It said it had taken active steps in recruitment and reminded staff of handover processes.
38. The Council sent me the Panel notes. These are brief with little detail of what was discussed.
39. I asked the Council for details of any Special Educational Provision (“SEP”) or alternative provision considered or provided to C when it knew she was not attending School 4 full-time. The Council said it was made indirectly aware of this at the end of March 2023. It had later approved a request for a separate matter. It said it had no record of further correspondence from School 4 regarding her attendance or provision after this.
40. The Council has now offered a remedy to Mr X of £250 for the delays, frustration and distress caused.

Analysis

41. My consideration of matters starts from events after October 2021, as explained in Paragraph 6.
42. I recognise Mr X says a specialist school should have been the correct decision from the start and the Council failed to name it until he appealed to the SEND Tribunal. He raised concerns with the Panel’s decisions based on the evidence, how it considered the consultation responses, and the mediation meeting. I also note the Panel notes do not show clearly what was discussed, which is fault. However, when a Council names a school that a parent considers unsuitable, the parent has a right of appeal against that decision. Mr X used his right of appeal. This was the correct route to challenge the Council’s decision to name School 4.

Jurisdiction

43. Mr X appealed against the June 2022 final EHCP as he disagreed with the named placement for C. This is outside of the Ombudsman’s jurisdiction to consider. I am unable to investigate the period from this date until the end of March 2023 when the consent order was issued, because there was an ongoing appeal.

Alternative provision

44. I can consider from April 2023 onwards after the appeal was conceded.
45. The Council has a legal duty to ensure full-time education for children of compulsory school age. C had been attending School 4 for two hours a day. This is far short of the 23.5 support hours she should have been receiving per week. She was attending part-time as there was not enough capacity to support C’s needs at School 4, not because it was specifically decided full-time education would not be in her best interests.
46. The Council says it was not aware of this until the end of March 2023, however I note Mr X told the Council this at the start of March when he escalated his complaint. Further to this, the Council’s final complaint response in April said it would work with School 4 regarding further alternative provision for C.
47. The Council has not provided evidence to show it stepped in at this point to make enquiries with School 4 or demonstrated it took action to consider or assess if it could deliver any additional provision for C or the SEP as outlined in her EHCP. It has not said if and how it kept this under review. This is fault. The Council said to me it had not received further contact from School 4 regarding provision, however the ultimate responsibility for providing suitable alternative education and EHCP provision lies with the Council.

Complaint handling

48. The Council took five months to formally respond to Mr X’s complaint. I recognise the Council’s explanation however, in my view, this is an excessive delay and caused him additional frustration. This is fault. I note the Council has worked towards resolving the issues, which is appropriate.

Injustice

49. I welcome the Council’s offer of £250 as a remedy for Mr X’s injustice with distress, delay, and frustration. I consider this to be appropriate to address his injustice and is in line with our Guidance on Remedies. However, there is remaining injustice to C that should be remedied.
50. I have not seen evidence the Council appropriately took action to fulfil its legal duties when it knew of C’s part-time hours at School 4. This caused injustice to C as she has missed out on full-time education from April to July 2023 (the period I can consider) that she was entitled to.

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Agreed action

51. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
52. Within one month of the final decision:
• Apologise to Mr X for the lack of full-time education provided to C and for not securing the provision as outlined in her EHCP between April and July 2023;
• Pay Mr X £250 for the distress and frustration caused, and also recognising the delay with his complaint; and
• Pay Mr X £2,250 to recognise the loss of suitable full-time education and special educational provision for C between April and July 2023. This can be used for C’s educational benefit.
53. Within three months of the final decision:
• Send written reminders to relevant staff of the Council’s responsibilities under Section 19 of the Education Act 1996 when it is made aware a child is attending school part-time. This should cover what the Council should consider when assessing the suitability of education and whether to provide or work towards full-time education for the child.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I found fault with the Council which caused injustice to Mr X and C. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman