Summary: Miss D complains that the Council has failed to provide an appropriate school place for her son. We found no fault.

The complaint

1. Miss D complained that the Council had failed to provide an appropriate school place for her son, J. This has impacted on the welfare of both her son and herself.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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 EHC Plan, 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).
7. 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

8. I have investigated from the Tribunal’s order in September 2022 to March 2023, when Miss D came to the Ombudsman. In line with paragraph 6 above, I have not investigated from 27 October 2021 to September 2022 as Miss D appealed to the Tribunal about the school named in her son’s EHC plan.

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How I considered this complaint

9. I considered the information Miss D sent and the Council’s response to my enquiries.
10. Miss D 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 law and guidance

11. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
12. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
14. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)
15. If a child of school age cannot attend school for reasons of illness, exclusion from school or otherwise, the Council must make arrangements to provide suitable education at school or elsewhere (for example, at home). The provision must be suitable for the child's age, ability and aptitude, including any special needs. Statutory guidance on alternative education provision says the provision should start as quickly as possible. (Education Act 1996, section 19)

What happened

16. Miss D’s son, J, has complex social and emotional needs, including anxiety and difficulties with emotional regulation and behaviour that challenges, which are a significant barrier to his learning. He is being assessed for autism and ADHD. J has moved between several different schools after exclusions. He has been on the roll of a pupil referral unit (“School 1”) since 2019 and receives some one-to-one tutoring.
17. An EHC plan was issued in October 2021 naming School 1. Miss D appealed to the Tribunal as she wanted the plan to name School 2. In September 2022 the Tribunal ordered the Council to issue an EHC plan which named only the type of setting – a school for pupils with social, emotional and mental health (SEMH) needs.
18. The Council issued a new EHC plan on 6 October 2022 and consulted with seven SEMH schools but they were unable to offer J a place. J’s one-to-one tutoring at School 1 was increased to four hours a week and in November 2022 he also started to attend an alternative provision two days a week.
19. Miss D complained to the Council on 14 November 2022 that it had not yet found a school place for J, who had been failed for the last eight years. The Council replied it was continuing to search for a place and it consulted with seven more schools. Dissatisfied, Miss D came to the Ombudsman.
20. There was an annual review of J’s EHC plan on 29 March 2023. This said J’s plan should be amended and education other than at school considered. The review noted that Miss D wanted J’s provision to increase to six hours of one-to-one tutoring, three days at the alternative provision, and one day at a forest school. It was hoped a school place would be found for September 2024.

My findings

21. The Council complied with the Tribunal’s order when it issued the revised EHC plan on 6 October 2022. It then started to search for a SEMH school for J but had been unable to find one by the time Miss D brought her complaint to the Ombudsman. I find no evidence of fault or delay in the way the Council has consulted with schools and searched for a placement.
22. Whilst J was waiting for an SEMH placement to be found, School 1 increased his one-to-one tutoring and he also started to attend an alternative setting two days a week. This is in line with the Council’s duty to ensure, if J is not able to access a school, that he has an education provision suitable for his age, ability and aptitude, including any special needs. I have seen no evidence that the Council did not consider the provision being made to be suitable. I therefore do not find any fault.
23. I have considered what actions the Council took when it became clear by December 2022 that a school place was not available. It consulted further schools, including ones outside its area, and there was an annual review which proposed changes to the EHC plan. My view is this is an appropriate way to consider the matter as it would give Miss D further rights to appeal to Tribunal, either about a decision not to amend the EHC plan, or about which school to name in it.
24. I appreciate that J is out of school, but I do not find that this has been caused by administrative fault by the Council.

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Final decision

25. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman