Summary: The Council was at fault because it did not promptly respond to the complainant’s attempts to contact it, to discuss her daughter’s educational placement. This fault has caused uncertainty about the position she may now be in. The Council has agreed to write a formal letter of apology for this, and offer a financial remedy both to the complainant and her daughter to reflect the uncertainty its fault has caused.

The complaint

1. I will refer to the complainant as Mrs N. Mrs N’s complaint concerns her daughter, B.
2. Mrs N complains about the Council’s handling of matters pertaining to B’s education. She says B, who has special educational needs, has been unable to cope in her mainstream school since Year 7, and despite attending school has not been receiving an effective education there. Mrs N says it has been agreed for some time that B needs a specialist placement, but the Council has made no substantive progress on this, and she complains she has been left without contacts or updates from the Council for long periods of 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)

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How I considered this complaint

4. I reviewed Mrs N’s correspondence with the Council, and the Council’s internal records.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. B has been subject to an education, health and care (EHC) plan since she was at primary school. She is now in Year 8 and was, until recently, attending a mainstream secondary school. I will refer to this school as School 1.
7. Mrs N says B has struggled to cope since starting at School 1, and her behaviour has resulted in several exclusions. In June 2022, she contacted the Council to ask for an EHC reassessment, but the Council asked her to wait until after the summer holidays and then ask for an emergency review if the situation did not improve.
8. In November the Council began making arrangements for an annual review of B’s EHC plan. Mrs N says this was after she made several attempts to contact the Council without response, and it was only when she asked for the school to intervene that it responded. The review took place on 16 November and it was agreed B needed to move to a different placement.
9. On 8 November Mrs N submitted a complaint to the Council, about its advice to wait over the summer holidays before calling a review of B’s EHC plan. The Council replied on 23 November, agreeing this had been unhelpful and assuring Mrs N it had discussed the matter with the officer involved.
10. Mrs N submitted a stage 2 complaint on 27 November. She expanded on her original comments, to say she had struggled to contact the Council before the conversation in June, and after B had returned to school in September. She said the annual review had only come about because of the school’s intervention. Mrs N asked the Council to arrange a more suitable placement for N as soon as possible.
11. The Council responded on 20 December. It said it was now ‘fast tracking’ work to amend B’s EHC plan and would be consulting with Mrs N’s preferred choice of school (School 2), along with other schools in case School 2 was full. The Council acknowledged Mrs N’s complaint about finding it difficult to make contact, and said it had introduced a new rota system to ensure an officer was available to take calls. The Council also reiterated it accepted Mrs N’s criticism for its comment about waiting for the new school year before reviewing B’s EHC plan.
12. In January School 2 responded to the Council’s consultation to say it had no availability to accept B, but said it would put her on its waiting list.
13. On 29 January Mrs N complained to the Ombudsman. She explained that, although B had been attending school regularly, for much of Year 7 and 8 she had spent her school day in 1:1 sessions with a teaching assistant, rather than proper lessons. She said she was still not receiving responses to her phone calls to the Council and repeated that B urgently needed a new placement which was appropriate to her needs.
14. In February the Council contacted Mrs N to discuss the available options. These included arranging a tutor for B while waiting for a placement to become available at School 2; seeking a placement for B at a new school (School 3), which was due to open in 2024, and put an interim package in place in the meantime; or seeking another alternative school. Mrs N agreed to discuss these options with B, who chose the second option, to seek a placement at the new school.
15. In March, Mrs N informed the Council the situation had deteriorated to the point where she had fully withdrawn B from School 1. The Council agreed to arrange a tutor for B as soon as possible. However, in April it noted it was struggling to find a tutor with availability.

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Legislative background

Education, health and care plans

16. 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 SEND Tribunal can do this.
17. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.

Annual reviews

18. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
19. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
20. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
21. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

22. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. We refer to this as councils’ ‘s19 duty’.
23. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))

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Analysis

24. Mrs N tells me her main grievance in this case is the Council’s failure to give timely responses to her contacts. She says she had been trying to contact the Council since the beginning of 2022, with little to no reply; and that, because of the delay this caused, School 2 no longer had availability by the time the Council consulted with it, meaning B missed out on a place there.
25. When I made enquiries with the Council about Mrs N’s complaint, I asked it to provide me with a copy of its notes and records, including all correspondence with Mrs N, from January 2022. However, the records it provided me in response start only in June 2022. It has not explained why this is.
26. Mrs N also says she made several unsuccessful attempts to contact the Council to trigger an emergency EHC plan review after the 2022/23 school year started, and that it was only when School 1 intervened in November that the Council responded to this request. And indeed the Council’s records include a copy of an email Mrs N sent to the school afterwards, where she complained about the Council’s lack of response to her earlier contacts. Again though, there is no actual record of these contacts themselves in the Council’s notes.
27. I therefore cannot make an objective finding that Mrs N attempted to make contact with the Council on any particular date, and that the Council failed to respond.
28. Despite this, on the balance of probabilities I consider Mrs N’s complaint to be persuasive. This is because, if the Council’s records are to be believed, Mrs N made no attempt to contact it at all between January and November 2022, except for one phone call and one email in late June. Given the context I do not find this credible – rather it appears Mrs N’s other attempts to contact the Council simply went unrecorded, and without response.
29. I find fault by the Council for this reason.
30. I can appreciate why Mrs N considers this meant B missed out on a place at School 2, as she says the school had availability earlier on. However, and without dismissing the logic of her position, I do not consider I can safely make a finding this was the consequence of the Council’s delay, as this would require speculation.
31. But I accept it does create uncertainty about what would have happened, if the Council had dealt with the matter more promptly. This represents an injustice in its own right.
32. Our general principle with remedies is to seek to put a complainant back in the position they would have been, had there been no fault. Where that is not possible, we will consider whether a financial remedy is appropriate instead.
33. In this case, the Council has already moved to secure B a new placement. She is on the waiting list for School 2, and the Council is also looking to enrol her at School 3 when it opens. It is not possible to reverse the effect of the Council’s delay and so we cannot put B back in the position she should have been.
34. I therefore consider it appropriate to recommend the Council offer a financial remedy for the uncertainty caused by its delay. Given this has affected both Mrs N and B, I consider a remedy of £250 each to be appropriate. B’s payment should be made to Mrs N, for her to decide how best to use it support her education.
35. I note the Council has already acknowledged the delays Mrs N experienced in its responses to her complaint, and explained how it has improved its service to help reduce missed calls. This is positive, although I consider it would also be appropriate for the Council to write a separate, formal letter of apology to Mrs N.
36. I make recommendations to this effect.
37. In her complaint to the Ombudsman, Mrs N also said B had missed a significant amount of education over Years 7 and 8. Although she was still regularly attending school in this period, she spent most of her time in 1:1 sessions with a teaching assistant; and Mrs N says much of this time consisted of non-academic activities rather than proper schoolwork. The Council has told me, although it was aware B was in 1:1 sessions at School 1, it was not aware of what was happening in those sessions.
38. As explained in the previous section, councils’ s19 duty requires them to make alternative arrangements for children who would not otherwise a receive an education because of illness or exclusion from school. This duty can apply even when a child is still physically attending school, although to criticise a council for failing to make arrangements under such circumstances, we would need to establish it properly understood the situation.
39. Either way, upon review I have noted this was not a point Mrs N raised in her complaint to the Council, and for this reason I cannot consider it any further at this point. If she wishes the Ombudsman to investigate it then she will first need to complain formally to the Council about it.
40. Similarly, the Council has explained it has so far been unable to identify a tutor with availability, to cover the period before B starts at her new school, whichever this may be. This suggests there may be what we term ‘service failure’ in this case – which is where a council has been unable to discharge a statutory duty, despite its best efforts. Again though, for us to investigate this point, Mrs N would first need to make a formal complaint to the Council about it.

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Agreed action

41. Within one month of the date of my final decision, the Council has agreed to:

• write a formal letter of apology to Mrs N, acknowledging the effect of the delays in responding to her contacts in this case;
• pay Mrs N £250 to reflect the uncertainty caused by these delays; and
• pay Mrs N a further £250 for the same reason, to be used for B’s educational benefit.

42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman