Summary: Mrs P complained about the Council’s handling of her son’s (X) education since Spring 2022 and how it communicated with her. The Council agreed it failed to find X a school placement and its alternative provision was not a full-time education. We also found it caused delay in the Education, Health and Care plan process and how it communicated with Mrs P. The Council will apologise and make payment to acknowledge the injustice it caused Mrs P and X.

The complaint

1. The complainant, whom I shall refer to as Mrs P, complained about how the Council dealt with the education of her son (X), who has an Education, Health and Care (EHC) Plan, since April 2022. She said it failed to:
• identify a suitable school for X to attend;
• provide a suitable alternative education for X;
• communicate properly with her to ensure X needs were met.
2. Mrs P said, as a result, X had a loss of education and special educational needs provision which meant she had to remain home with him, and she experienced distress and uncertainty.

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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 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)
4. 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)
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 have considered Mrs P’s complaint and the Council’s responses. I discussed the complaint with her, made enquiries to the Council and considered the relevant law before reaching my view.
8. Mrs P 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

Education, Health and Care (EHC) Plans

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. 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.
11. 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)
12. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC plan to the ‘new’ council. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to review or make amendments to the plan. (SEND Regulations 2014)
13. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks.
14. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
15. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan (SEND Regulations, Regulation 13(1))
16. 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.

Alternative Provision

17. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
18. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
19. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. This states councils must work with schools and parents to identify children who need alternative education and make suitable arrangements. Sometimes, councils arrange for schools or other bodies to carry out their functions on their behalf. However, the council remains responsible. It is important therefore, that councils retain oversight and control to ensure they fulfil their duties.

Background

20. In 2021 Mrs P lived in Wiltshire Council’s area with her family and son (X), who has been diagnosed with medical conditions which impacts his ability to receive an education without support. He continued to attend a mainstream school from September 2021.
21. Wiltshire Council agreed to complete an EHC needs assessment for X, consulted with professionals and issued its final EHC plan for him in March 2022. The Plan set out the special educational needs support he should receive, which it believed a mainstream school could provide.
22. Mrs P believed X would be best supported in a specialist school but did not appeal the EHC plan to the SEND Tribunal.
23. Mrs P informed Wiltshire Council her family was moving to Suffolk County Council’s (the Council) area in March 2022. Wiltshire Council shared its EHC plan and documents regarding X with the Council.

What happened

24. The Council made a referral to an alternative provision provider shortly before Mrs P and her family moved to the Council’s area in April 2022. This was to provide X with some educational provision until a suitable school placement could be found for him.
25. X started receiving provision from the alternative provision provider five weeks later. This was initially 45 minutes of face-to-face tuition, and the following week he also started receiving 1.5 hours online provision. However, the online provision stopped soon after as X was unable to engage with it.
26. The Council started the process of transferring X’s Wilshire Council EHC plan onto an EHC plan issued by the Council. It shared a draft EHC plan in June 2022, but did not share a final EHC plan. It also consulted with some schools to find X a placement.
27. When no school placement had been found for X for the start of the 2022/2023 academic year, the Council arranged a further alternative provision provider for X. This meant from September 2022 X each week had;
• one day of 4.5 hours alternative provision at a Forest School;
• one day of 45 minutes of face-to-face tuition. It had offered two 45-minute sessions, however, due to a clash with the Forest School availability, only one session was provided.
28. In October 2022 the Council decided to complete an EHC needs assessment for X. The evidence shows it:
• obtained Mrs P’s views around X’s special educational needs and type of school placement she preferred. She also said the existing limited alternative provision was not enough for X;
• sought advice from professionals, which included a paediatrician, an educational psychologist (EP), a speech and language therapist (SaLT) and the alternative provision providers working with X. Most reports were received in late 2022; and
• continued to consult with schools for X, including Mrs P’s preferred schools. It told her it intended to list a school in X’s EHC plan and expected to share this soon after.
29. In January 2023, X started receiving a further day of 4.5 hours in the Forest School.
30. In February 2023 X’s engagement with the face-to-face tuition reduced and he was unable to engage with this in March 2023. Mrs P informed the tuition provider and the Council.
31. The Council considered providing other alternative tuition for X, but this was not put in place as it believed a school placement would be found for him.
32. In May 2023 the Council issued its Final amended EHC plan for X. This listed a mainstream school.
33. Mrs P disagreed with the Council’s listing of the mainstream school and had discussions with the Council over the Summer 2023. She decided not to appeal X’s EHC plan as the Council set out a package of support he would receive at the mainstream school.

Mrs P’s complaint

34. Mrs P complained to the Council in September 2022 about the lack of suitable education X had received since she moved to its area in April 2022. She also said it had communicated poorly as the officer allocated to X’s case had left the Council.
35. In response the Council apologised X had been without a full-time education since he moved into its area. It explained the steps it had taken to find a mainstream school as set out in his Wiltshire County Council EHC plan. It also said a new caseworker had recently been allocated to X’s case.
36. In November 2022 Mrs P asked the Council to escalate her complaint as X was still without a suitable school placement and his alternative provision was inadequate. She also said it had delayed the reassessment of X’s EHC plan.
37. The Council acknowledged her complaint and said it would respond within 25 working days.
38. In March 2023 the Council provided its final complaint response to Mrs P. It said it:
• agreed it had failed to find X a suitable school placement, and explained it had consulted with schools. However, all the schools found they could not meet his needs or refused the placement on other grounds;
• accepted it had not provided X with a full-time education, or alternative provision, as set out in his Wiltshire County Council EHC plan. It explained it had offered some alternative provision, and therefore partially upheld this part of her complaint;
• did not agree it had delayed its EHC needs assessment for X. It explained it had limited evidence of his needs from Wiltshire County Council. It therefore decided to reassess. It also said there was a national shortage of EP’s which caused a delay; and
• accepted its communication with Mrs P had been poor after its officer allocated to X’s case had left the Council. However, it found its communication had improved since.
39. The Council apologised to Mrs P and offered a remedy for her time and trouble to bring her complaint to its attention. It also said it would consider the injustice to X two months later as it could not assess this as the matter was ongoing.
40. Mrs P was not satisfied with the Council’s response and asked the Ombudsman to consider her complaint.
41. In response to our enquiries the Council said it had issued X’s final EHC plan and listed a mainstream school. It shared his EHC plans, its consultations with schools, and its EHC needs assessment process and alternative provision information.
42. The Council also proposed a remedy to acknowledge the loss of educational provision X had experienced between April 2022 and July 2023 amounting to a remedy of £6,525. This was:
• £1,800 for the Summer term in 2022 where X only received 45 minutes face-to-face tuition each week. Some online provision was also available to him which he could not access;
• £1,625 for the Autum term in 2023 where X only received 45 minutes face-to-face tuition and 4.5 hours at a Forest school each week; and
• £2,600 for the Spring and Summer terms in 2023 where X only received two 4.5 hours of forest school weekly, and some limited tuition.

Analysis and findings

School placement

43. The Council agreed it had failed to find a suitable school placement for X since it became responsible for his EHC plan in Spring 2022.
44. I have considered the steps the Council took to find X a suitable school placement.
45. I found the Council was not at fault for being unable to find a school place for X between Spring 2022 and July 2022 when the academic year ended. This is because I am conscious this was during the school year, the Council consulted with schools, and none of the schools could admit X.
46. However, from September 2022 when the 2022/2023 academic year started, the Council caused a service failure as it was unable to find a suitable school placement for X. This is because, regardless of its attempts to consult schools, it was responsible for ensuring it had a Local Offer available which could meet the needs of children and young people in its area. The six-month period it had should have been sufficient to arrange a school place for X.
47. The Council has since listed a school in X’s EHC Plan for the 2023/2024 academic year and included a package of support to meet his needs. Mrs P has decided not to appeal its decision to the SEND Tribunal. I have therefore not made any recommendations for the Council to put educational provision in place for X.
48. In response to previous Ombudsman decisions, the Council completed a SEND Sufficiency Plan. This programme included a review of the Council Local Offer, which found it did not have enough provision available. The plan set out step how it would address this over a phase 1 and phase 2 process. The Council has increased it Local Offer in since and is still working on its phase 2 process. I have therefore not made any service improvement recommendations regarding this service failure.

Alternative provision

49. The Council said it had provided some alternative provision for X, but agreed this did not amount to a full-time education since Spring 2022. This was fault.
50. However, I acknowledge the Council did not cause delays when X’s EHC plan was transferred to the Council. It had good processes in place to start sourcing alternative provision for X when he transferred into its area which was evident from its early referrals for alternative provision support.
51. In response to my enquiries, the Council reviewed its response to Mrs P and agreed its limited alternative provision offer had resulted in a loss of educational provision for X.
52. I have considered the Council’s proposed remedy as set out in paragraph 42, and I am satisfied this is appropriate and in line with our Guidance on Remedies.
53. However, the Council’s proposed remedy did not include the impact its fault had on Mrs P. I found its lack of alternative provision for X also caused her some distress and uncertainty as she had to support him throughout the period where he did not receive a full-time education.

EHC plan and reassessment process

54. The Council decided in Autumn 2022 it was necessary to complete an EHC needs reassessment of X, as the information it had about him from Wiltshire Council was limited.
55. The evidence shows the Council started the EHC needs assessment process which included seeking information from various education providers, professionals, health colleagues, and Mrs P without delay.
56. While I acknowledge the Council had difficulties in getting some responses from professionals, which it said delayed its ability to finalise X’s EHC plan, it remains responsible for ensuring it adheres to the statutory timescales and completed the EHC needs assessment process within 20 weeks.
57. However, it took the Council until May 2023 to issue its final amended EHC plan for X, which was 16 weeks longer than the statutory timescales allows. As this was largely outside the Council’s control, I therefore found the Council caused a service failure.
58. I found the Council’s service failure did not cause X a further injustice, as the loss of education he experiences was mainly the lack of a suitable school placement and full-time alternative provision.
59. However, I found Mrs P experienced some distress and uncertainty due to the further frustration in the Council’s ability to adhere to the timescales. She did not experience a delay in her right to appeal. This is because, following progress with X’s educational provision with the Council over the Summer 2023, she decided not to exercise this right.

Communication with Mrs P

60. I have considered how the Council communicated with Mrs P since Spring 2022. The evidence shows it initially communicated well with her when she moved into its area and some alternative provision was arranged. It also shared key decisions and outcomes with her.
61. However, the Council’s communication was limited with Mrs P when it was consulting with schools and it agreed its communication had been poor with Mrs P during a period where its officer had left. I therefore found some fault in how it communicated with her, which caused her some limited distress which was largely due to its inability to find a suitable school placement for X.
62. When Mrs P complained to the Council, it initially responded to her complaint as set out in its Complaints Policy. However, it did not provide its final complaint response within the 25 working days it said it would. It took the Council four months to provide its response. This was fault, which caused Mrs P some additional distress.

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Agreed action

63. To remedy the injustice the Council caused to Mrs P and X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs P, and pay her £500 to acknowledge the distress and uncertainty the Council’s service failure and faults caused her and X;
2. pay Mrs P £6,525, to use as she sees fit for X’s benefit, to acknowledge the lack of a full-time suitable education he experienced between April 2022 and July 2023.
3. pay Mrs P a further £150 to acknowledge the unnecessary time and trouble she had to pursue her complaint as a result of the Council’s complaints handling.

In total the Council should pay Mrs P £7,175.

64. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. review any how it can limit any delays to the Education, Health, and Care plan process, including steps which may be outside its control such as advice from professionals. It should also remind staff responsible for progressing and overseeing the process to adhere to the statutory timescales; and
5. remind staff and managers responsible for responding to complaints to ensure it responds to complaints within the timescales set out in its Complaints Policy, and to keep complainants informed if there are delays in the process.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. There was fault which caused Mrs P and X an injustice, it is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman