Summary: Mrs X complained that the Council delayed arranging a suitable school placement for her child and communicated poorly with her. Mrs X said this caused unnecessary and avoidable distress and frustration, and caused her child stress and anxiety. We find the Council at fault for communicating poorly. We are satisfied the Council has already remedied the injustice caused. We do not find the Council at fault for the school placement.

The complaint

1. The complainant, who I refer to here as Mrs X, complained that the Council delayed arranging a suitable school placement for her child at a special school. She also complained that the Council ignored her emails and failed to update her.
2. Mrs X said this caused unnecessary and avoidable distress and frustration. She said the stress impacted her mental health. She said she constantly had to chase the Council and got told it would call back, but no one did. Mrs X said it has caused her child stress and anxiety.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. 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.
8. 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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What I have and have not investigated

9. Education, Health and Care plans name the type of school a council believes is most suitable for a child. If a parent does not agree with the council’s decision about the type of school, they can appeal to the SEND Tribunal.
10. As I have said above, we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. I do not consider it unreasonable to expect Mrs X to appeal this decision. Therefore, I have not considered the Council’s decision that a mainstream school was a suitable placement for Mrs X’s child because it is outside our jurisdiction.
11. Regarding the part of the complaint about the school placement for Mrs X’s child, I have investigated the time it took the Council to consult with a special school.

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How I considered this complaint

12. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
13. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

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What I found

What should have happened

14. Education, Health and Care (EHC) plans set out the special educational provision required to meet a child’s special educational needs. The law sets out timeframes for councils to complete certain actions for EHC plans.

What happened

15. Mrs X’s child, C, has an Education, Health and Care (EHC) plan.
16. In September 2022, there was a review of C’s EHC plan. Notes of this review said that C may need a specialist placement. The notes said the family wanted to consider a mainstream school as well as a specialist school.
17. In December, the Council’s panel reviewed the request for a specialist placement for C. The panel felt C’s needs could be met in a mainstream school. However, the Council consulted with a specialist setting in December because of Mrs X’s preferences.
18. In February 2023, the Council confirmed Mrs X’s contact details with the specialist setting to arrange a visit. In March, C had an assessment visit at the specialist setting. The specialist setting said they could offer C a place starting in April.
19. The Council did not accept the specialist setting’s offer of a place for C.
20. Mrs X complained.
21. In its complaint response, the Council explained that it did not accept the specialist setting’s offer of a place for C because it felt a mainstream school could meet C’s needs. It said it was gathering more information about C’s needs and would bring C’s case back to the panel to reconsider the request for a specialist setting.
22. The Council agreed that it had communicated poorly with Mrs X. The Council apologised for this.
23. Mrs X then brought her complaint to the Ombudsman.

Analysis

School placement

24. Mrs X complained that the Council delayed arranging a suitable school placement for her child at a special school.
25. As I have said above, I cannot consider the Council’s decision about what type of school could best meet C’s needs. This is because it is outside the Ombudsman’s jurisdiction.
26. However, I have considered the way the Council consulted with the specialist setting.
27. I find that none of the legal timeframes to do with EHC plans applied in this case.
28. I find there were no delays in the Council’s consultation with the specialist setting. There was a small delay of a few weeks between January and February: in January the setting sent the Council an email saying it could offer C an assessment visit. But the Council did not get this email. The setting sent a follow up email a few weeks later, which the Council received and acted on without delay. I do not find this small delay to be fault.
29. I find there was no injustice to C. The Council decided a mainstream school could meet C’s needs. So, even when the specialist setting offered C a place, the Council did not accept this offer. This is a decision the Council is entitled to make.

Poor communication

30. Mrs X complained that the Council ignored her emails and failed to update her.
31. In its complaint response, the Council accepted that it had communicated poorly with Mrs X. It apologised for this.
32. I agree with the Council that its poor communication is fault. I find this fault caused unnecessary and avoidable distress and frustration, which is injustice. I have considered the Ombudsman’s published guidance on remedies. I find that the Council’s apology is a suitable remedy for the level of injustice caused.

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Final decision

33. I have completed my investigation. I uphold the part of Mrs X’s complaint about poor communication. I find the Council has already remedied the injustice caused by that fault.
34. I do not uphold the part of Mrs X’s complaint about the school setting. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman