Summary: Miss X complained the Council failed to secure a school placement for her son, make suitable education provision, or meet his needs as specified in his Education, Health and Care Plan for a significant period. The Council accepted several faults and put forward a number of remedies. It has agreed to carry them out to remedy the injustice caused.

The complaint

1. Miss X complains the Council said her son had a secondary school placement when this wasn't the case. This has meant he has not attended school since and has missed out on education and provision he is entitled to for a significant period. She says the Council failed to put in alternative provision for him and it has not responded appropriately to her concerns or complaints she has raised. This has caused significant frustration, distress and uncertainty, and Miss X says it has impacted her son's progress as he has missed out on educational and social opportunities.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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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How I considered this complaint

5. I discussed the complaint with Miss X and considered her views.
6. I made enquiries of the Council and considered its written responses and information it provided.
7. 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

Law and administrative background

Education, Health and Care Plans (EHC Plans)

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs (Section B), special needs provision (Section F), or the name of the educational placement (Section I). Only the tribunal or the council can do this.
9. The Council has a duty to secure the specified special educational provision in an EHC plan 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)

Alternative provision

10. 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.
11. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
12. 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.

Background

13. Miss X’s son (“Y”) has special educational needs and Autism Spectrum Disorder. He has an Education, Health and Care Plan (“EHC plan”). This included specified Speech and Language Therapies (“SALT”) and Occupational Therapy (“OT”).
14. In March 2022, School 1 responded to a consultation request from the Council. It did not offer Y a place as it said admission would cause prejudice to the efficient education of others and no reasonable steps could be taken to prevent this.

What happened – summary of key relevant events

15. At the end of May 2022, the Council issued a final plan naming School 1 in Section I for Y to start secondary school in September.
16. At the same time, the Council informed School 1 it named it in the plan as it was Miss X’s parental preference.
17. In July 2022, Miss X contacted the Council as she had spoken to School 1 about Y, and it said he did not have a school place. The Council communicated with School 1 to try and work together to enable Y to attend from September. School 1 would not accept him as it was oversubscribed.
18. Between September 2022 and January 2023, Miss X made occasional contact with the Council asking for updates as Y had been out of education. The Council did not respond. Miss X complained to us. We advised her to complete the Council’s complaints process first.
19. In mid-March 2023, Miss X emailed the Council’s complaints team about her dissatisfaction with how it handled her case and Y still was out of school and education. It acknowledged her complaint and delayed sending a response, which Miss X chased up.
20. In mid-May 2023, the Council responded and apologised for its inconsistent communication, and it would look to discuss tuition for Y as an interim measure. It did not tell her how to escalate her concerns if she remained dissatisfied. The Council said to us it responded to this as a service request, rather than a complaint.
21. In early June 2023, Miss X made another complaint. She said Y had only just received some tuition at home and no annual review had taken place. The Council’s delayed Stage One response said it had now set up tuition and it was working to contact other schools for Y. She escalated her complaint.
22. In early September 2023, the Council sent a summary to Miss X about a phone call it had with her. It said it agreed to continue Y’s tuition for three days a week and it would explore options for a possible Education Otherwise Than School (“EOTAS”) package. It understood she would withdraw her Stage Two complaint request. Miss X said to me the Council said to her on the call, if she withdrew her complaint, it would help her.
23. In November 2023, we then accepted Miss X’s complaint to us. Miss X said to me during this period, she had been dealing with personal medical issues, which added to her distress at trying to manage this and Y’s education.
24. In January 2024, the Council’s internal decision making Panel agreed for an EOTAS package in principle. The Council said it was working towards this and it had also sent a recent consultation for School 2 to try and find a school place for Y. This period onwards is outside the scope of my investigation.

The Council’s response to my enquiries

25. The Council said it did not know how some decisions were made as staff members had since left. Notes had not been recorded, were incomplete or no longer available. This poor record keeping is fault.
26. I asked about the phone call with Miss X allegedly asking her to withdraw her complaint. The Council said it had a note of the conversation, but the employee had since left so it could not comment on the accuracy of this statement. It did accept sending this summary of the call to Miss X was not an official response to her complaint and it did not comply with its complaints policy.
27. It did not carry out an annual review for Y in 2023. There was some confusion about Y’s on roll status which did not flag up on the system. The Council now had new management to try and address these issues.
28. The Council had reviewed Y’s case and highlighted a number of failings from its previous management and acknowledged Miss X and Y’s experiences of the service fell short of expected standards. It had secured tuition from June 2023 as an interim measure, but it accepted it did not make up for the lost education or provision for his identified needs.
29. It accepted a number of faults:
• Failure to secure an educational setting after a final EHC plan;
• Failure to provide a setting for a key stage transfer;
• Delays in completing an annual review in 2023;
• Failure to provide provision in Section F of Y’s EHC plan since September 2022;
• Systematic failures within the SEND team handling Y’s provision and EHC plan reviews; and
• Systematic failures with how it handled Miss X’s complaints.
30. The Council offered to apologise to Miss X, a symbolic payment of £4000 (£1000 per term) in recognition of the impact on Y of missed education and provision, and £1000 symbolic payment to Miss X for her distress. It also offered some corrective actions for Y and a number of service improvements.

Analysis

Fault causing injustice

31. I appreciate the Council’s honest and transparent acknowledgement of fault in many areas of Miss X’s case. As the Council has accepted fault on all the above issues, which I agree with, it is not necessary to break down each element in detail. I will summarise the injustice caused:
• The Council did not meet its legal duties (referred to in Paragraphs 9 and 10) to deliver specified EHC plan provision to Y or provide full time (or equivalent) suitable education to him since September 2022. This caused injustice to Y as he has missed out on a considerable period of education and provision he was entitled to.
• The Council did not carry out an annual review for Y in 2023. This caused injustice as it missed the opportunity to monitor any progress, assess his current situation, and formally update the plan accordingly. It also denied Miss X her statutory right to appeal if she disagreed.
• Its poor complaint handling denied her the opportunity to escalate it when she first made a complaint. Its delays with this and throughout the process caused injustice with avoidable frustration and additional time and trouble for Miss X having to continually pursue it with the Council.

Remedies and service improvements offered by the Council

32. I also welcome the Council’s offer of remedies to acknowledge the personal injustice caused and other actions to prevent future recurrence of these faults. I considered the service improvements the Council suggested were appropriate and included them in my recommendations.
33. I have taken into account our published Guidance on Remedies (“GOR”). Our approach to remedying injustice is to try to put complainants back in the position they would have been, had it not been for the fault. When this is not possible, we can recommend symbolic payments to acknowledge the impact of the faults. These are intended to be symbolic, not purely financial.
34. While the proposed payment by the Council to recognise the injustice for Y was within the range of our GOR’s recommended payments, I proposed to increase this. This was to take into account it was a key transitional year affected (Y’s move from primary to secondary school), he did not receive any tuition for nearly a year, has had limited provision since, along with the complex nature of his special educational needs with other therapies he needed and did not receive.
35. The proposed £1000 distress payment for Miss X exceeds the higher end of our general recommended amount and I considered this appropriate.

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Agreed action

36. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
37. Within one month of the final decision:
1. Apologise to Miss X and Y for the injustice caused by the faults identified;
2. Pay Miss X the £1000 symbolic payment it offered to recognise her distress, frustration and uncertainty throughout;
3. Pay Miss X £8,400 as a symbolic payment to recognise the impact of the loss of education and provision for Y between September 2022 and December 2023. This can be used for Y’s educational benefit;
4. Arrange an annual review of Y’s EHC plan; and
5. Make arrangements to secure SALT and OT for Y going forward.
38. Within three months of the final decision, the Council will:
1. Review the SEND team’s internal monitoring and record keeping for complaints and resolutions;
2. Review the SEND communication policy with a focus on timeliness of responses to parental queries and provide staff training in communication in line with the department’s revised communications policy;
3. Use Y’s case as a specific case study to review the processes around consultations to settings;
4. Provide staff training in handling complaints and resolutions; and
5. Provide staff training on annual review operating procedures with a focus on reviews for pupils not in educational settings.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I found fault with the Council which caused injustice to Miss X and Y. 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