Summary: The Council took too long to issue an Education Health and Care plan (EHC plan) for Mrs B’s son. It did not ensure that it provided an alternative education when he was out of school, or that it met his sensory needs. It also did not always communicate with Mrs B properly. The Council has consulted numerous schools but has not found a school that can meet her son’s needs. He has missed education, and both he and Mrs B have suffered distress. The Council suggested a means to put things right, and it has agreed to my recommended improved remedy to better reflect the impact on the family.

The complaint

1. Mrs B complains about how the Council has handled the educational provision for her child, K. In particular, she says the Council:
• delayed in issuing a final EHC plan for K;
• has failed to provide K with a suitable education since he was excluded at the beginning of October 2022;
• has failed to meet his sensory needs since he has been out of school, and
• has not kept her informed of its actions or responded to her communications in good time.
2. Mrs B says that as a result of the Council’s shortcomings, her son is not receiving an education. He is distressed and self-harming, and as such he cannot access education at home. Mrs B is frustrated and distressed that her son’s needs are not being met.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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)

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What I have and have not investigated

5. 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)
6. A parent has the right to appeal the contents of the EHC plan including the school named. In this case, the plan does not name a school. Instead it says that K should go to special education provision to be confirmed by the Council, in conjunction with Mrs B. My view is that we would not expect Mrs B to appeal the plan as she agrees her son should go to a special education school, and she had a reasonable expectation a suitable place would be found. For this reason, I have exercised discretion to investigate the Council’s actions to date despite the right of appeal arising.

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How I considered this complaint

7. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken all comments received into account before issuing this final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

The law and guidance

9. A child with special educational needs may have an Education, Health and Care (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.
10. 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.
11. 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. (Education Act 1996, section 19). We refer to this as alternative provision.

What happened

12. Mrs B’s son is autistic and he has profound educational, social and sensory difficulties. He was in school and has an EHC plan. At the annual review during March 2022, the school had asked for changes to the provision. However, these were not made and the EHCP remained the same.
13. In October 2022, K was permanently excluded from the school. Mrs B told the Council that she thought K needed to go to a special school. The Council completed an emergency review of the EHC plan and began to consult schools, including Mrs B’s preferred special school.
14. The Council issued a draft EHCP on 24 October 2022.
15. In total the Council consulted 13 schools in both the special educational needs and mainstream settings, as well as independent schools. I have seen the Council’s records including the schools’ responses. These said that the school could either not meet K’s needs or were already full. I have also seen that where schools did not respond the Council chased them, and offered to discuss K’s needs with them so as to explore how the school might meet these.
16. In the meantime, K has no school place. The Council has offered home tutoring and online learning, and it visits K each week to check on his welfare. Mrs B says K cannot access the tutoring on offer because his mental health has deteriorated, and because the Council is not making the provision to meet his sensory needs, as set out in his EHC plan. The Council has also acknowledged that it did not offer learning outside of school (alternative provision) soon enough.
17. The Council issued a final EHC plan in January 2023. The Council has acknowledged that it took too long to issue the final plan. The plan does not name a school. Instead it says that K should go to special school provision to be confirmed by the Council, in conjunction with Mrs B.
18. The EHC plan also says what the educational provision will do to meet K’s sensory needs. As well as appropriate approaches for school staff, the plan says K should have an individualised regulation programme of sensory activities and strategies to support his regulation, and opportunities to implement this throughout the day. The Council agrees that it has not provided sensory support to K and intends to complete a full occupational therapy assessment of his current needs.
19. During this time, Mrs B has contacted the Council asking how the search for a school place was progressing. She made clear that this was having a serious impact on K. He is self-harming and cannot understand why he cannot go to school. Mrs B is also exhausted and the ongoing situation was having an impact on her own health, including an increase in epileptic seizures. The Council has acknowledged that although it did keep in touch with Mrs B, its communication was not always good enough.

Was there fault by the Council causing injustice to Mrs B and K?

20. The Council has acknowledged that:
• It took too long to issue the draft and final EHC plan.
• It has not met K’s sensory needs.
• Despite its best efforts it has not been able to find a school place for K.
• It did not offer the alternative provision soon enough.
• It has not always met its expected standards in communicating with Mrs B.
21. When K was excluded, the Council completed the emergency review in good time. The Council has also acknowledged that it did not offer alternative provision soon enough. When it offered alternative provision, Mrs B said that K could not access this. The Council did not do enough to satisfy itself that K could access the alternative provision on offer, or that it was suitable, even if it was not the provision set out in EHC plan (which was school based). This is especially so as the alternative provision did not meet K’s sensory needs.
22. The Council is continuing to seek a school place for K. It has approached several occupational therapists to commission an assessment and provision to start as soon as practicable. I acknowledge that the Council has tried to find a suitable school place for K. It has consulted widely and has properly considered each school’s response, reverting to some schools to explore how it might meet K’s needs. However the lack of suitable educational provision is service failure. The Council has not met its duty to provide K with a suitable education.
23. As a result of the Council’s shortcomings, both K and Mrs B have suffered distress and frustration.

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Agreed action

24. In recommending a remedy I have had regard to the Ombudsman’s guidance on remedies.
25. In response to a separate complaint the Council has already reminded staff of its duties to provide suitable alternative provision.
26. The Council has also offered to make a symbolic payment to Mrs B £600 to recognise that it has not always communicated properly with Mrs B or kept her up to date.
27. The Council will continue to seek a school place for K. It has offered to reassess K’s sensory needs and commence provision as soon as practicable. The Council has also offered to pay £2,400. This is a symbolic payment in recognition of the education that K has missed from October 2022 to May 2023. I am grateful for the Council’s offer of payment. However, this does not fully reflect that the impact on K and Mrs B is ongoing, and that the Council failed to take account of K’s sensory needs.
28. The Council has agreed to my further recommendations. This means it has agreed to:
• Apologise to Mrs B for the faults outlined in this statement. The apology should be in writing and from an officer of appropriate seniority.
• Pay to Mrs B £2,400 offered from October to May 2023.
• Pay to Mrs B £120 for each academic week K does not have access to a suitable education from May 2023. This should continue for as long as there is no suitable provision on offer, up to a limit of six months from the date of our final decision statement.
• If the Council has not been able to provide a suitable education within six months of this decision, it should complete a fundamental review of the situation and share a plan of action with Mrs B.
• Pay to Mrs B £500 in recognition of the impact on her and her child of its failure to consider or meet his sensory needs.
• Pay Mrs B £600, as offered, in recognition of the distress and frustration caused when it did communicate with her properly.
29. The Council should provide us with evidence it has complied with the above actions within one month of this final decision.

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Final decision

30. I have completed my investigation. There is fault by the Council causing injustice to Mrs B and her child.

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Investigator's decision on behalf of the Ombudsman