Summary: Mr X complained the Council did not provide his daughter, Y, a school place from November 2021, or the specialist provision in her Education, Health and Care Plan from May 2022. The Council did not ensure Y received an education between November 2021 and May 2022, and did not secure the provision in her plan from June 2022 until June 2023. The Council agreed to pay Mr X £8,200 to remedy the loss of education and provision to Y, and £300 to recognise the distress and frustration caused to Mr X.

The complaint

1. Mr X complained the Council did not provide his daughter, Y, a school place from November 2021, or the specialist provision in her Education, Health and Care (EHC) plan from May 2022. Mr X also complained the Council acknowledged it was at fault but did not take action to provide a school place. Mr X says this caused the whole family distress and Y missed out on education and social opportunities.

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What I have Investigated

2. 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). Mr X complained about events that first occurred in November 2021 which is more than 12 months ago. However, the alleged fault and injustice had continued until after Mr X brought his complaint to us. Mr X raised his complaint with the Council within 12 months, and persisted in following up. I considered there are good reasons to investigate events from November 2021.

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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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 documents Mr X sent and discussed the complaint with him on the telephone.
8. I considered the documents the Council sent in response to my enquires.
9. I considered our Guidance on Remedies, which is available on our website.
10. 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

Relevant legislation and guidance

Education, Health and Care Plans

11. 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.
12. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
13. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. (Section 42 Children and Families Act)

School admissions

14. Council’s must ensure that there is efficient education is available to meet the needs of the people living in its area. (Section 13 and 14, Education Act 1996)
15. Statutory guidance about school admissions is published by the Department for Education. Under the system of coordinated admissions, parents make a single application for a school place to their home council. (The School Admissions Code 2021)
16. The Council’s website states if someone is new to the UK they should make an in-year application for a school place through its portal. It asks parents to provide their school preferences which it will consider under each school’s admission criteria. It states it will take the Council a minimum of ten days to process the application.

Alternative provision

17. 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 section 19 or alternative education provision.
18. 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)
19. 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))
20. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened

21. Mr X moved to the UK with his family in the autumn of 2021. English is not the family’s first language. Mr X made an in-year application for a school place for Y in November 2021. At that time Y should have been in year 10. Mr X said he did not know which school would be appropriate for Y and asked the Council to refer to an appropriate school. Mr X also asked the Council to conduct an Education, Health and Care Needs Assessment (EHCNA) for Y to identify her special educational needs (SEN).
22. The Council contacted Mr X in December 2021. He explained that Y had some additional needs and that he would like her to attend a special school. The Council wrote to Mr X and told him that it did not have enough information to understand how Y’s needs impacted her education. It said Y needed to attend school and it needed more information from professionals to understand Y’s needs. It declined to complete an EHCNA.
23. In February 2022 the Council began an EHCNA for Y. The records do not show why the Council agreed to assess Y or how it informed Mr X of that decision.
24. The Council issued a final EHC plan for Y in May 2022. It said that Y had both physical and learning disabilities. It said Y had ‘significant learning needs and difficulties in the areas of language, social communication, play, and independent living skills’. The EHC said Y needed to attend a special school, but did not name one. The plan set out that Y needed:
• A full time, personalised curriculum with a focus on preparing for adulthood.
• Adult support to interact with her peers.
• Adult support to eat, dress and use the toilet.
• A full assessment of Y’s speech and language needs in an educational setting over 12 weeks. The provision would then be updated to meet Y’s identified speech and language needs.
25. The Council began searching for a school place. The records show the Council decided not to consult with special schools outside of the Council area, as it was not a good use of anyone’s time. It said it would not do so unless there was an express parental preference.
26. It consulted eight schools in May 2022. School A said it could offer a place subject to assessment of Y’s needs. The other schools did not offer Y a place.
27. School A assessed Y and told the Council it could not meet her needs in June 2022. The Council arranged tutoring at home for ten hours a week for Y which began the same month.
28. The Council told Mr X he had a new SEN case worker in June 2022. The SEN case worker sent Mr X an email introducing herself. Mr X complained to the SEN caseworker the same month and said Y was still without a school place and had not had any physical or language therapy.
29. Mr X complained again at the end of August 2022. He said Y was still without a school and had no placement for the coming academic year.
30. The tutoring for Y stopped in July 2022 for the summer break. At the beginning of the next academic year the tutoring did not restart.
31. Mr X complained several times in September 2022. He said the Council was not providing Y an education and the case worker was not responding to his emails. Mr X registered the complaint with the Council’s feedback service.
32. The Council responded to Mr X’s complaint in October 2022. It upheld his complaint and said it had not yet been able to find a school place for Y. It said it recognised that tuition in the home had an impact on all members of the family. The Council apologised for the difficulties the family was facing.
33. Mr X was dissatisfied with the Council’s response and asked it to consider it at the next stage of the complaint procedure.
34. The Council responded to Mr X in November 2022. It upheld Mr X’s complaint and said:
• It understood an apology was insufficient and offered its apologies.
• There was a breakdown in ensuring Y’s tuition was rebooked for September and it had revised its process.
• It would complete another search for a placement for Y, and would also look for a post-16 placement.
• It would discuss increasing Y’s hours of tuition for the rest of the academic year.
35. The Council arranged for Y’s tutoring to start again in November 2022.
36. Mr X, dissatisfied with the Council’s response and lack of action, complained to us in February 2023.
37. The Council consulted schools again in February 2023. The consultation said Y required a placement from September 2023 but it would consider an earlier start date if necessary.
38. School B responded to the consultation and offered Y a place. The Council issued an amended final EHC plan in March 2023. The provision in the plan remained the same. The type of provision Y should attend was changed to a special school/Post 16 provision and named school B.
39. Y began attending school B in the middle of June 2023.

Council’s response to enquiries

40. The Council said it was not possible to name a special school for Y until March 2023 and it had accepted fault at the earliest opportunity. It stated it was not possible to provide provision that replicates a special school in the home setting.
41. In response to my enquiries the Council said it would ensure in cases where tuition was in place as an alternative provision, arrangements for September would be confirmed prior to the summer break. It said it was developing staff guidance for the new academic year on this point.

My findings

42. When Mr X completed an admission application for Y, the Council should have provided Y with a school place. The Council did not do this, and I have seen no record of why it did not do so. The lack of accurate and complete records is fault.
43. Regardless of the reason, Y was entitled to an education under section 19 of the Education Act 1996. The Council should have ensured that she received a suitable education taking into account her individual needs and abilities. The Council did not provide any education between November 2021 and May 2022. That was fault and meant Y missed out on two terms of education.
44. When the Council issued the EHC plan for Y in May 2022 it had a duty to secure the specified provision. The Council arranged tuition at home for ten hours a week from June 2022 until June 2023. However, the one-to-one tuition did not provide the majority of the specialist provision in Y’s plan. Y did not interact with peers, receive support to eat, dress and use the toilet, or any speech and language therapy. The Council accepted tuition could not provide all the SEN provision. The failure to secure the provision in Y’s plan was fault and meant that Y missed out on specialist provision for three terms, from June 2022 to June 2023.
45. Y did not receive the tutoring for half a term during September and October 2022 due to a Council oversight, the Council has already identified that fault. That meant Y had no provision at all for half a term. I have suggested an appropriate remedy below.
46. When the Council issued the EHC plan in May 2022, it named a type of school Y should attend. The Council said it was not possible to name a school. However, it only completed one round of consultations and only consulted local schools. When the initial consultations were negative the Council should have consulted other schools, including those in other Council areas if necessary. Had the Council completed further and wider consultations it may have identified an appropriate placement for Y sooner. The Council did not do so and that was fault and likely contributed to the injustice identified in the two paragraphs above. The lack of appropriate school placement for Y also caused Mr X distress.
47. Mr X emailed the SEN case worker multiple times between June and October 2022. He raised a complaint in those emails on at least four occasions. There is no record of the SEN case worker acknowledging or responding to Mr X during that time. The Council did not recognise his complaint until Mr X raised it with the Council’s complaint department. That was fault. The lack of communication with Mr X or response to his complaints caused him frustration and distress.

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Agreed action

48. Within one month of this decision the Council agreed to:
• write to Mr X and apologise for the injustice caused to him and Y by the faults identified above, having regard to our Guidance on Remedies section on meaningful apologies;
• pay Mr X £4,000 to recognise the 20 academic weeks Y had no education between November 2021 and May 2022. (This is calculated at £2,400 per term/£200 per week and is in line with our Guidance on Remedies);
• pay Mr X £1,200 to recognise the half a term Y received no tuition or SEN provision at all between September and October 2022. (This is calculated at £2,400 per term/£200 per week and is in line with our Guidance on Remedies);
• pay Mr X a further £3,000 to recognise the two and half terms between November 2022 and June 2023 when Y did not receive the full SEN provision laid out in her plan. (This is calculated at £1,200 per term/£100 per week and is in line with our Guidance on Remedies).

Mr X can use these payments for Y’s educational benefit as he sees fit; and

• pay Mr X a symbolic amount of £300 to recognise the avoidable distress and frustration caused to him by the Council’s failure to communicate and to recognise his complaint at the earliest opportunity.
5. Within two months of this decision the Council agreed to:
• provide us with a copy of its staff guidance covering the arrangements for alternative provision when they span across academic years at outlined in paragraph 41; and
• review its approach to consulting schools for children needing a placement. This should ensure that appropriate, timely steps are taken to widen the scope of consultation when insufficient responses are received from an initial round. It should provide us with the outcome of this review.
6. The Council will provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation. I found fault causing injustice and the council agreed to my recommendations to remedy that injustice and to avoid the same fault occurring in the future.

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Investigator's decision on behalf of the Ombudsman