Summary: Ms X complained the Council failed to provide her son (A) with a suitable education when he should have started school. We have found the Council at fault for not meeting the requirements of A’s Educational Health and Care Plan. The Council did not secure a specialist school place for A when he should have started school, nor did it make suitable alternative provision.

The complaint

1. Ms X complained the Council failed to provide her son, Child A (who has SEND) a suitable school place when he was 5 years old.

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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. 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)
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. I have investigated Ms X’s complaint that the Council did not deliver the requirements of her son’s Education Health and Care Plan (EHC Plan). Namely, it did not find him a specialist school placement in time for him to start school when he was 5 years old.
6. The amended EHC Plan (February 2023) named the provision Ms X wanted, but not from the date she wanted. The effect of this was that Child A remained out of school until September 2023. This would have been appealable. However, given the length of time an appeal would take, it will be at least September before the matter was addressed. So, exceptionally, I think it is reasonable to exercise discretion to consider the matter despite the existence of appeal rights.

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How I considered this complaint

7. I have considered Ms X’s complaint and supporting information.
8. I have also considered the Council’s response to Ms X and to my enquiries.
9. Ms 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

The law

Education, Health and Care Plan

10. 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.
11. 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.
12. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are:
• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school

Alternative provision

13. 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.
14. 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)
15. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”.

What happened

16. Ms X’s son, A has special education needs and disabilities (SEND). The Council issued A with a finalised EHC Plan in June 2022. Section I specified Specialist school provision but did not name a school. It said that A was accessing a private day nursery whilst awaiting transition to a specialist school. As part of the consultation with A’s current setting, it was agreed that A would remain at nursery until December 2022. He would then start school in January 2023, the term after he turned 5 years old.
17. A was allocated a mainstream placement from September 2022 although the school questioned whether it could meet A’s needs. Ms X confirmed that A would remain in nursery until December 2022 rather than attend mainstream school.
18. The Council consulted with local specialist schools. Two schools responded and said they could meet A’s needs. However, these were both at capacity and A was put on a waiting list. The Council said specialist schools admit additional children when spaces become available. In its response, the Council said that unfortunately no places became available during the year.
19. On 31 January 2023, the Council tried to contact Ms X by phone and email. It left a message confirming that A had been allocated a school place as a local special school and would start in September 2023. Ms X responded the same day and emailed the Council a detailed response on 1 February 2023. She said she was unhappy that A would not start school until September 2023 given that his EHC Plan was issued in June 2022.
20. The Council spoke with Ms X and set out the options available to A regarding education in the meantime. This included mainstream school with support or tuition in the home. Ms X declined this offer.
21. The Council issued A’s final amended EHC Plan in February 2023. This named Ms X’s preferred specialist school from September 2023. It also set out the specific education and support that A needed. This included access to a school environment, an intensive level of adult support, access to sensory experiences, speech and language services (SALT), a well-structured learning environment.

My findings

22. The Council acknowledged that A required a specialist placement. It said that it had offered Ms X alternative provision in the form of a mainstream placement with support and home tuition. Ms X refused these offers as she said he needed a specialist school. This was Ms X’s decision to make.
23. A required a specialist school placement and all the support that goes with that. What the Council offered as an alternative, was not therefore suitable alternative provision. I have found fault here.
24. I recognise that at the time, there were no places available at a local specialist school. However, from the evidence I have seen, the Council did not use its powers to encourage one of the suitable schools to take an extra pupil for two terms. Nor did the Council demonstrate that it had tried to meet suitable alternative provision in terms of SALT or what home tuition would actually entail.
25. The Council’s fault meant that A missed two terms of suitable education. In line with the Ombudsman’s Guidance on Remedies, the Council agreed to a payment of £900 per term (£1800 in total) be paid to Ms X. This payment is to acknowledge the impact that the missed education had on A and his family.
26. The transition from early years to school is a key transition that was disrupted due to the Council’s failure to find a suitable school placement or alternative provision. Although the Council offered alternatives, it did not pursue these with Ms X after she declined the offer.
27. The missed time at a specialist school also meant that A missed out on other provisions included in his EHC Plan. The EHC Plan specifically recognised A’s need for SALT support. The Council has agreed to arrange and implement additional provision above and beyond that provided by his school in order to put A in the position he would have been but for the Council’s fault.

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Agreed action

28. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Ms X for failing to provide a specialist school place for A when he should have started school, and for not offering suitable alternative provision.
2. Pay Ms X £1800 to acknowledge the impact the missed provision has had on A and his family.
29. Within 8 weeks of my decision, the Council has agreed to:
1. Organise additional SALT support for A to make up for the missed provision.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation. The Council was at fault for not meeting the requirements of A’s EHC Plan by failing to organise specialist educational provision when A should have started school.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman