Summary: Mrs B says the Council failed to put in place education for her son, failed to identify a suitable school placement and failed to put in place provision in her son’s education, health and care plan. Part of the complaint is outside the Ombudsman’s jurisdiction. For that part within the Ombudsman’s jurisdiction there is evidence of failure to put in place sufficient education for Mrs B’s son, delay identifying a school placement and delay putting in place special educational needs provision. An apology, payment to Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• failed to put in place education for her son from March 2022;
• failed to identify a suitable school placement for her son;
• failed to make provision for her son’s swimming lessons;
• delayed putting in place speech and language therapy until March 2023;
• failed to put in place sensory integration therapy; and
• unreasonably refused to allow her to be the second person supporting her son which might have enabled him to remain in school.
2. Mrs B says the Council’s actions have led to her son missing out on education and special educational needs provision which has put her and her family under significant stress.

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The Ombudsman’s role and powers

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. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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

8. I have investigated Mrs B’s concerns about what happened after her son was permanently excluded from school in March 2022. I have not investigated Mrs B’s concerns about the Council’s failure to agree for her to be the second person to provide 2:1 support for her son before he was excluded from school. That is because this relates to whether Mrs B’s son needs 2:1 provision. That, in turn, relates to the provision in his education, health and care plan (EHCP). If Mrs B believes her son requires 2:1 provision she has a right of appeal in relation to the provision set out in her son’s EHCP. That matter is therefore outside the Ombudsman’s jurisdiction.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mrs B and the organisation now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
11. 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 found

What should have happened

12. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
13. Section 19 of the Education Act 1996 says local authorities are responsible for the provision of 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 full-time education for excluded pupils must begin no later than the sixth day of the exclusion.
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 sight?' July 2022). We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware a council may need to act whatever the reason for absence (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
16. A child with special educational needs may have an EHCP. An EHCP describes the child's special educational needs and the provision required to meet them.
17. An EHCP should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child's EHCP.
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child's EHCP.

What happened

19. Until March 2022 Mrs B’s son was attending an academy school. Mrs B’s son was permanently excluded from the school in March 2022. The Council began consulting schools but could not identify a placement. The Council arranged for tutors to provide some education to Mrs B’s son at home. That provision began in April 2022. Mrs B stopped that provision in May 2022 and asked for a personal budget to enable her to provide education to her son.
20. The Council put that personal budget in place in June 2022 and continued to consult various schools. The Council also agreed a personal budget for swimming lessons for Mrs B’s son in August 2022 when it became clear the previously allocated school did not intend to allow Mrs B’s son to access swimming on the school premises as it had previously said it would.
21. From September 2022 the Council put in place tuition from another provider totalling six hours per week tuition. The Council continued to consult schools with a view to identifying a suitable placement for Mrs B’s son. None of the schools the Council consulted said they could offer Mrs B’s son a place.
22. The Council made a referral for a speech and language therapist towards the end of 2022 but the one the Council identified was not acceptable to Mrs B.
23. In March 2023 Mrs B asked the Council to consult a specific school. The Council consulted that school but it said it was not suitable. The Council continued to consult other schools but could not identify a placement.
24. In April 2023 an independent speech and language therapist began providing therapy to Mrs B’s son. In September 2023 the Council began funding sensory occupational therapy sessions.
25. The Council issued a final EHCP on 4 September. That named only a type of school in section I. Mrs B has put in an appeal.
26. The current situation is a school has now carried out an observation of Mrs B’s son with a view to him starting at the school. Mrs B says although she has concerns about the travel time to the school as it is some distance away she intends to accept it as she has no other option.
27. The Council accepts it failed to provide education or support between March and September 2022 and provided only limited hours since September 2022. The Council offered £4,500 for the missed provision.
28. The Council also accepted there had been a delay putting in place speech and language therapy and sensory integration therapy and offered £1,500.
29. The Council offered £500 for time and trouble and distress from the complaints process. The total remedy offered by the Council is therefore £6,500.

Analysis

30. Mrs B says the Council failed to put in place education for her son from March 2022 when he was excluded from his previous school. The Ombudsman will not normally consider a complaint about matters where there is an alternative route for remedy. For children with an EHCP the parent or carer has a right of appeal about the type of placement named in section I of the EHCP or any failure to name a school in section I. That appeal right arises when a final EHCP is issued.
31. In this case the Council provided me with a copy of three final EHCPs during the period I am investigating. The first is dated 30 May 2022, the second 15 March 2023 and the third was issued on 4 September 2023. However, having considered some of the Council’s other documentary evidence I am not convinced the final EHCP from March 2023 was issued given further draft plans were issued in June 2023. Nor do I have a copy of any covering letter to Mrs B for the May 2022 EHCP and there is no reference in Mrs B’s communications with the Council after May 2022 to suggest she received an EHCP. It is therefore my view, on the balance of probability, only the September 2023 EHCP was issued which gave Mrs B a right of appeal.
32. Mrs B appealed the September 2023 EHCP. What that means is any failure to provide education after September 2023 is outside the Ombudsman’s jurisdiction as Mrs B has exercised her appeal right. My conclusions for the period March 2022-September 2023 are based on my conclusion Mrs B did not have an appeal right which she could have exercised between those dates.
33. The evidence I have seen satisfies me the Council acted when Mrs B’s son was excluded from school in March 2022 to put in place alternative provision while it sought an alternative school place for him. It did not put that provision in place by the sixth day though and that is fault. I am satisfied though from April 2022 until September 2023 the Council either had in place alternative provision for Mrs B’s son or it has been available to him but Mrs B has chosen to educate her son at home for part of the period (May-July 2022). I therefore could not say the Council failed to put in place any education for Mrs B’s son from April 2022 onwards.
34. I am satisfied though the Council has only put in place a limited amount of education for Mrs B’s son between April 2022 and September 2023. I am satisfied Mrs B’s son has only had a maximum of six hours education per week since April 2022. Part of the reason for this is the availability of the tutors allocated to work with Mrs B’s son. I understand the Council’s difficulty in identifying suitable tutors. I also recognise one-to-one tuition is more intensive than full-time tuition at school and therefore the Council would not be expected to put in place the same number of hours tuition based on what is available in a school environment. However, I consider six hours per week education is unlikely to have given Mrs B’s son sufficient education given there is no evidence he could not have coped with an increased amount of hours. As the Council has only put in place limited education and there is no evidence it has reviewed that, as the Ombudsman would expect it to do, I consider the Council at fault for the period March 2022 to July 2023 as Mrs B’s son remained out of education and only receiving a small amount of hours per week.
35. Mrs B is also concerned about the Council’s failure to identify a suitable school placement for her son. The documentary evidence I have seen satisfies me the Council has made attempts to identify a school placement for Mrs B’s son and is continuing to do so. I have some concerns though as the documentary evidence shows the Council often consulted an individual school or a couple of schools at a time. Given Mrs B’s son’s behavioural difficulties I consider the Council should have known it could take some time to find a suitable school. In those circumstances I would have expected the Council to consult multiple schools at the same time.
36. In addition, there were gaps between March 2022 and August 2022, between December 2022 and March 2023 and between March 2023 and June 2023 when the Council did not issue any consultations to schools. Failure to consult multiple schools earlier and failing to consult schools during significant gaps is fault. I cannot say this meant Mrs B’s son missed out on a placement before September 2023 due to fault by the Council though. That would be dependent on the Council identifying a suitable school to meet his needs. I consider though Mrs B has suffered an injustice as she is left with some uncertainty about whether the situation could have been resolved earlier.
37. Mrs B says the Council failed to make provision for her son’s swimming lessons. The documentary evidence shows the Council put in place a personal budget for Mrs B’s son to access swimming lessons for 12 weeks from August 2022. I am satisfied the Council did not act before that because the previously allocated school initially said it could facilitate Mrs B’s son coming into the school to have swimming lessons. In those circumstances I do not criticise the Council for failing to put in place a personal budget before August 2022. That is the point at which it became clear the previously allocated school was not going to facilitate the swimming lessons.
38. I am concerned to note though that despite Mrs B asking the Council to pay for swimming lessons since then it has not made any further payments. That is fault. The Council has agreed to backdate the payments for 2023 and put in place a payment for the spring term in 2024. Following that the Council intends to review the provision going forward to make sure it is still required. If it is I would expect the Council to make the appropriate arrangements to pay.
39. The Council accepts Mrs B’s son missed out on speech and language therapy until March 2023 and sensory integration therapy until September 2023. That is fault. The Council is responsible for ensuring the provision in an EHCP is put into place. Delay putting those provisions in place means Mrs B’s son missed out on speech and language therapy between March 2022 and March 2023. Mrs B’s son also missed out on sensory integration therapy between March 2022 and September 2023.
40. The Council has offered Mrs B £6,500 as a financial remedy. £4,500 of that is to reflect the missed education provision, £1,500 to reflect the lack of sensory occupational therapy and speech and language therapy and £500 to reflect Mrs B’s distress and time and trouble. It is clear the Council’s calculations relate to the period up until the end of the school year in 2023 which is also the only period the Ombudsman could consider as Mrs B exercised her appeal right in September 2023. Taking into account the fact Mrs B’s son received some education and some special educational needs provision between April 2022 and July 2023 I consider the remedy the Council offered for the missing education and special educational needs provision a satisfactory one to remedy the injustice to Mrs B and her son. However, it is clear the injustice to Mrs B has been significant and she is left with some uncertainty about whether the Council could have secured a school placement earlier if it had consulted more schools more often. To remedy that I consider a payment of £750 more appropriate than the £500 the Council has offered. The Council has agreed to my recommendation.
41. I am aware the Council has now identified a placement for Mrs B’s son. Given that and as Mrs B has appealed to tribunal, I do not make any further recommendation around reviewing the amount of hours alternative provision in place for Mrs B’s son until he is able to start at the school or, in the alternative, the appeal is heard. However, I recommended the Council send a memo to officers in education to make clear when a child receives alternative provision the Council keeps the number of hours provided under review. That memo should also remind officers of the need to ensure prompt consultations with schools take place when a child is out of education, the requirement to put in place provision by day 6 and that it sends consultations to multiple schools at the same time rather than sending out individual consultations. The Council should also provide evidence to the Ombudsman it has in place a process to identify alternative speech and language therapists or occupational therapists when a shortage is preventing provision in a child’s EHCP being put into place. The Council has agreed to my recommendations.

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Agreed action

42. Within one month of my decision the Council should:
• apologise to Mrs B;
• pay Mrs B £6,750;
• pay Mrs B for the missing swimming payments for 2023 and the spring term of 2024;
• send a memo to officers in education to make clear when a child receives alternative provision the Council keeps the number of hours provided under review. That memo should also remind officers of the need to ensure prompt consultations with schools take place when a child is out of education, the requirement to put in place provision by day 6 and that it sends consultations to multiple schools at the same time rather than sending out individual consultations;
• provide evidence to the Ombudsman it has in place a process to identify alternative speech and language therapists or occupational therapists when a shortage is preventing provision in a child's EHCP being put into place.
43. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

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Final decision

44. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman