Summary: Mrs C complained the Council failed to find her son (X) a suitable school placement for the 2022/2023 academic year and failed to accept an offer from her preferred placement for the following year. We found the Council caused a delay and a service failure to find a school placement for X. It was also at fault for the delay in arranging suitable alternative provision for X. However, it did not fail to accept Mrs C’s preferred school. The Council will apologise and make to payment Mrs C for the injustice this cause her and X.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complained the Council has failed to provide her son (X), who has an EHC Plan, with a school placement and a suitable education since September 2022. She said it has caused delays and failed to accept an independent school’s offer for September 2023 to save money on the placement.
2. Mrs C said, as a result, X has experienced a loss of education and special educational needs provision. She also said she experienced distress and had costs to support X.

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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. 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)
5. 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

6. As part of my investigation, I have:
• considered Mrs C’s complaint and the Council’s responses;
• discussed the complaint with Mrs C and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law and guidance relevant to the complaint.
7. Mrs C 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

Education, Health, and Care (EHC) Plans

8. A child with special educational needs may have an 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.
9. 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.
10. 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)
11. 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)

School placements

12. Section 14 of the Education Act 1996 says local authorities are responsible for securing it has sufficient schools to provide for primary education and secondary education for children and young people in its area. The schools available shall not be regarded as sufficient unless they are sufficient in number, character, and equipment to provide for all pupils the opportunity of appropriate education.

Alternative Provision

13. 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.
14. 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.
15. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
16. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

17. Mrs C moved to the Council’s area in August 2022 with her family and her son (X). X had an EHC plan issued by the local authority they previously lived in, which set out the support he needed to meet his special educational needs.
18. The Council received X’s EHC plan from the local authority in September 2022.
19. The Council contacted Mrs C in early September 2022 and explained its education panel would consider X’s EHC plan and school placement. Mrs C shared her parental preference for an independent school (School Y).
20. In late October 2022 the Council consulted with special schools in its area to find X a school placement for the 2022/2023 academic year, including School Y.
21. All the consulted schools told the Council they could not offer X a place. However, School Y said it could offer X a placement for the 2023/2024 academic year. It offered the Council until the end of March 2023 to accept its offer.
22. Mrs C asked the Council to accept School Y’s offer and find X another school in the interim. However, the Council said it would consult further with local special schools before it would make its decision.
23. The Council’s education panel considered X’s case again in late 2022. As there was still no school placement identified for X, it found further consultations should be sent to schools. It also agreed X should receive tuition in the interim.
24. The Council told Mrs C it would arrange tutoring and X’s case would be considered by its panel again in February 2023.
25. In January 2023, the Council arranged tutoring through an agency for X. This was 4 hours 1:1 tuition per day in Mrs C’s home.
26. Mrs C told the Council the tutor the agency had sent did not have enough experience and skill to work with X due to his needs. The Council spoke with the agency and a new tutor started working with X the following day.
27. Mrs C said the new tutor did not have the qualifications needed but was happy to work with the tutor until a school placement was found for X.
28. In February 2023, Mrs C asked the tutoring agency and Council for resources to support X’s tutoring and learning. The Council said it would discuss this with the agency. This led to the tutor being let go by the agency, and a new tutor started working with X.
29. Mrs C continued to chase the Council for a school placement for X. She asked it to accept School Y’s offer and reminded it about the deadline to accept the offer. The Council acknowledged this and explained it was still considering local special schools.
30. The Council contacted School Y regarding its offer for X a week before the March 2023 deadline. It asked for an extension to accept the offer, but three days before the deadline School Y refused the request.
31. The Council contacted School Y again before the deadline. It was told there were no longer any spaces available as School Y had given the last available space to another child four days before the deadline. However, it told the Council it could add X to its waiting list for the 2023/2024 academic year, and offer a place for the 2024/2025 academic year.
32. The Council informed Mrs C School Y’s offer had been withdrawn as it no longer had space for X.

Mrs C’s complaint

33. Mrs C complained to the Council about its handling of X’s education. She said:
• it had failed to accept School Y’s offer by the deadline, which she believed was due to the costs of the placement;
• X had first started to receive tutoring in January 2023, but this could not replicate the educational provision he should have received in a school placement;
• the Council’s consultations with schools included some which were unsuitable to X due to the travel distance and the impact this would have on him; and
• she wanted the Council to accept School Y’s waiting list offer, and its offer of a placement for the 2024/2025 academic year.
34. In response, the Council apologised to Mrs C for the delay in finding X a suitable school placement and said it would review special educational needs provision in its area. It explained the efforts it had made to find a placement and said it would continue its search for one, but it had put tuition in place in the interim. It also explained it had contacted School Y before its deadline, but by then there was no longer any spaces for X.
35. The Council arranged for a visit to Mrs C to discuss how its interim education could be more desirable in the interim. It subsequently offered a different tuition provider, but Mrs C believed it was best to continue with the tutor X had worked with.
36. The Council told Mrs C its education panel would consider X’s case again in May 2023.
37. Mrs C remained dissatisfied with the Council’s handling of X’s education. She said, while the tuition was helpful, the delay continued to cause X to experience a loss of education and had a significant impact on the family. She again asked the Council to accept School Y’s waiting list offer for September 2023 and offer for a placement the following year.
38. The Council’s education panel met in May 2023. However, the outcome of the meeting was not available to be shared with Mrs C until three weeks later. This was that there were still no local special schools which could offer X a placement. The Council asked Mrs C if there were any schools she would like consulted, and whether she would consider a mainstream school with a package of support for X.
39. In June 2023, following further correspondence with Mrs C, the Council accepted School Y’s waiting list offer. It told Mrs C, and explained it had also consulted with another special school (School Z).
40. Shortly after, School Z offered X a placement for the 2023/2024 academic year. The Council told Mrs C it would accept this offer and put support in place for X.
41. Mrs C agreed for X to be placed at School Z but asked the Council to also accept School Y’s offer for the 2024/2025 academic year. This was in case the placement at School Z was unsuccessful. The Council did not agree to do so, and explained this would be considered in X’s annual review.
42. In its final complaint response, the Council again apologised for the delay in finding X a school placement, but it did not change its view on her complaint. It said it had consulted with schools and put tuition in place for X in the interim. However, it was School Y that had given away the placement it offered before the agreed deadline.
43. Mrs C remains unhappy about how the Council handled X’s school placement and the interim support he received. She asked the Ombudsman to consider her complaint.

Analysis and findings

School placement

44. The Council agreed it had been unable to find X a suitable school placement from September 2022 until July 2023 when the academic year ended.
45. I have considered the steps the Council took to find X a suitable school placement during the 2022/2023 academic year.
46. I found the Council was at fault for causing a delay in starting its consultation process to find X a suitable school placement for a six-week period from September 2022. This is because it should have started this process without delay after it received X’s EHC plan from X’s previous local authority. However, it did not consult with any schools until the end of October 2022. I cannot say whether the relatively short delay caused X to miss out on a school placement.
47. I found the Council properly consulted with special schools in and around its area from November 2022 until Summer 2023 when School Z offered X a placement. It was not fault by the Council to consult with schools outside its area. However, the Council had a duty to ensure it had sufficient school placement available to all children of compulsory school age in, or around, its area.
48. There are no set timescales for how long it should have taken the Council to find X a suitable school placement, and I acknowledge Mrs C moved to the Council’s area just before the academic year started which meant the school placements for the academic year would already have been completed.
49. However, I found the Council’s inability to find X a suitable school placement for the 2022/2023 academic year was a service failure. This is because it had failed to properly keep its Local Offer under review to ensure it had sufficient school places available to meet the needs of children and young people in its area. The Council could therefore not offer X a suitable school placement. Based on the circumstances in this case, I would have expected a placement to have started for X by at least January 2023.

Mrs C’s preferred school placement for X

50. Mrs C said the Council’s failure to accept her preferred school offer for X for the 2023/2024 academic year.
51. The evidence shows Mrs C told the Council her preferred school for X was School Y. The Council consulted with the school, which could not offer X a placement in the 2022/2023 academic year. However, it offered X a placement for the 2023/2024 academic year. The offer was available until the end of March 2023.
52. I have not found the Council at fault for failing to accept School Y’s offer by School Y’s deadline. This is because the Council contacted the school to discuss the offer before the deadline. However, School Y gave away its last available space for the 2023/2024 academic year shortly before the deadline it had given the Council. It was therefore School Y which did not adhere to the agreed deadline.
53. In addition, while a council must normally accept a parental preference school offer in circumstances where it does not have any other school available which can meet a child’s needs. In this case, this would only relate to the 2022/2023 academic year for which School Y did not offer X a school placement.
54. The Council was not under a duty to accept School Y’s offer for the 2023/2024 academic year, as it was still consulting with schools in and around its area for this period. This led to an offer from School Z which Mrs C accepted, and X started attending the school from September 2023. Any issues Mrs C subsequently had with X’s education at School Z is a new matter which she should bring to the Council’s attention.

Alternative provision

55. The Council had a duty to provide X with a suitable education which met his needs as set out in his EHC plan from September 2022 when it received the transferring local authority’s EHC plan for X.
56. The evidence shows the Council decided to arrange alternative provision for X in late 2022, and the provision started in January 2023.
57. I have considered whether the Council should have put in place X’s alternative provision sooner. I found the Council at fault for failing to put suitable alternative provision in place for X for a two-month period. This was from November 2022 until his tuition started in January 2023.
58. In reaching my view I was conscious the Council should have consulted schools without delay and would have received their responses in October 2022. It would then have been clear it had no school placements available for X, and alternative provision should have been put in place without delay.
59. I have also considered whether the alternative provision the Council put in place for X in January 2023 was enough to provide him with the education he was entitled to. The Council’s tuition consisted of 1:1 tuition which was in excess 15 hours per week and therefore equivalent to a full-time education.
60. However, while the majority of the special educational needs provision could be provided by his tutor, X did not have any opportunities to engage or receive his education with peers as set out in his EHC plan. This was fault. This is because I have seen no evidence the Council properly considered how it could mitigate X’s lack of school placement and provide some peer engagement and learning for him.

Remedy

61. I have considered the impact the Council’s delays, service failure and fault caused Mrs C and X. I am satisfied:
• Mrs C experienced distress due to the uncertainty the Council inability to find X a suitable school placement caused her. She also experienced distress to support X when he was not in school or had no suitable alternative provision available to him; and
• X experienced a loss of education due to the Council’s delay to consult with schools and put in place alternative provision during a two-month period from November 2022. He also had a loss of opportunity to receive an education in school or a school environment which would enable him to engage with peers as set out in his EHC plan.

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Agreed action

62. To remedy the injustice the Council caused to Mrs C and X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs C, and pay her, to use as she sees fit;
1. £500 to acknowledge the distress and uncertainty the Council’s delay, service failure and fault caused her;
2. £1,200 to acknowledge the loss of education X had in November and December 2022; and
3. £500 to acknowledge the loss of opportunity X had to engage with peers in a school, or other suitable environment, as set out in his EHC plan during the 2022/2023 academic year.

In total the Council should pay Mrs C £2,200.

63. Within three months of the final decision the Council should also:
1.  
2. share with the Ombudsman, the Council’s review of its Local Offer to ensure it has enough mainstream schools, special schools and alternative provision to meet the needs of all children with special educational needs in its area; and
3. remind staff, responsible for arranging and approving alternative provision for children or young people who are not receiving an education in school, to properly consider whether further provision should be provided to meet special educational needs set out in EHC plans, including opportunities to engage with peers.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. The Council caused a service failure when it was unable to find X a school placement and there was fault in its alternative provision offer. As a result, Mrs C and X experienced an injustice. The Council has agreed to my recommendations, 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