Summary: Ms X complained the Council failed to take sufficient action to ensure her child, Z, who has an Education, Health and Care (EHC) Plan, received suitable education after they were permanently excluded from school. She says this meant Z was out of education for longer than needed. The law prevents us investigating most of these events, as they occurred too long ago or because Ms X had a right of appeal to the tribunal, and it was reasonable for her to have used it. However we found the Council did fail to arrange some special educational needs provision for Z for ten term-time months and this matter was not linked to the issues Ms X could have appealed to the tribunal. It also significantly delayed responding to Ms X’s complaint. In recognition of the injustice caused to Z and Ms X, the Council has agreed to apologise, pay Ms X £2,150 and carry out service improvements.

The complaint

1. Ms X complains the Council failed to take sufficient action to ensure her child, Z, received education after they were permanently excluded from school in late 2021. Ms X said the Council:
1. failed to provide the SEN provision specified in Z’s January and December 2022 EHC Plans, including access to a teaching assistant;
2. failed to make sufficient efforts to find Z an alternative education placement after they were permanently excluded in late 2021;
3. failed to provide Z with a laptop so they could work from home in late 2021;
4. failed to ensure Z had adequate social interaction after their 2021 permanent exclusion through the Council’s short breaks scheme; and
5. failed to deal with Ms X’s complaints properly.
2. Ms X said the Council’s faults have caused her child to be out of education for longer than necessary and caused them both distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (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. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin)
9. 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)
10. 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

Events leading up to Z’s permanent exclusion from School 1

11. The Ombudsman investigated an earlier complaint by Ms X in 2022 that Z’s school was wrong to permanently exclude them the year before.
12. We decided we could not investigate the school’s decision to exclude, as the Ombudsman cannot investigate what happens in schools. However, we did investigate whether the Independent Review Panel considered Ms X’s case properly regarding the exclusion and decided it did.
13. Ms X has again raised complaints relating to Z’s exclusion in this case. I have not re-investigated these as they were considered in a separate investigation.

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How I considered this complaint

14. I considered the information provided by Ms X and the Council.
15. I considered the relevant policies and guidance as set out below.
16. I considered our Guidance on Remedies.
17. Ms X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

What happened

Events before late 2021 – short breaks

18. Z has an EHC Plan. The Council allocated Z 100 hours of short break support in July 2020. Short breaks are activities for children and young people with a disability.
19. During this time, Z did not always receive the full amount of short break support due to reduced capacity in the service during COVID-19.

Events from late 2021 to July 2022

20. Z was permanently excluded from School 1 in late 2021. The Council put in place 15 hours a week of 1:1 online tuition for Z within two weeks of their permanent exclusion from School 1.
21. 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. There is no definition of full-time but as 1:1 tuition is more concentrated it will be less than the hours the pupil would get if they were in a classroom setting with other pupils.
22. 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”. (R (on the application of DS) v Wolverhampton City Council 2017)
23. The Council told Ms X that the school was responsible for ensuing Z had a laptop to use for tuition. Overtime, Z’s attendance at these lessons dropped and by summer 2022 they had stopped attending.
24. The school held an annual review of Z’s EHC Plan in late 2021 following their permanent exclusion. The school recommended Z’s EHC Plan be amended and for schools to be consulted for them to attend. The Council decided it would amend Z’s EHC Plan and wrote to Ms X. It began consulting schools for Z between December 2021 and March 2022 and again in October 2022.
25. The Council issued an amended final EHC Plan in January 2022, along with a letter setting out how Ms X could appeal to the tribunal. The EHC Plan named School 1 from September 2020 to the date Z was permanently excluded. It did not name any other school. The special educational provision set out in section F of the EHC Plan was by and large school led, including support around interacting with Z’s peers at school. For example, “School will allocate a familiar person to meet [Z] on arrival at school daily. Also “All Staff to use a kinaesthetic approach to teaching and learning during every lesson and provide 1:1 or small group support where this is needed (small group of no more than 3).”
26. However some key provision in Section F did not require attendance in a school. Section F said Z “will have a social communication programme, this will be integrated into their daily curriculum activities and reviewed half-termly by a Speech and Language Therapist”.

Findings on events from late 2021 to July 2022 and Z’s earlier short breaks

27. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
28. The short breaks provision allocated in 2020 and any issues accessing it in 2021 occurred too long ago and there is not a good reason for us to investigate now.
29. The events regarding the laptop from late 2021 also occurred too long ago. Ms X could have complained to us at the time, especially as she had made a previous complaint to us about the exclusion at the end of 2021 and we came to a final decision in 2022. Therefore, we will not investigate her complaints about the laptop or the short break support during this time that could have allowed Z to have social interaction with peers, or the Council’s consultation of schools during this period.
30. In addition, the law says we cannot investigate a complaint if someone could have taken the matter to a tribunal, unless we decided it was not reasonable for them to have done so. I have decided it was reasonable for Ms X to have appealed to the tribunal after the final amended EHC Plan was issued in January 2022. Once the Council amended the EHC Plan and did not add anything in section F to take account of Z being at home following their exclusion, and it did not amend the education setting in section I, it was reasonable to expect Ms X to have appealed to the Tribunal to get this resolved.
31. If a child is not attending school, or not receiving the special educational provision in their EHC Plan, and we decide the reason for this is linked to, or is a consequence of, a parent’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. Ms X could have appealed to the tribunal to get this resolved so I have not investigated Ms X’s complaints about the suitability of provision made during this time or the Council’s failure to deliver most of what was in this EHC Plan.
32. However there was a key form of provision in Section F that could be delivered at home. The speech and language therapy and social communication programme was listed as important provision for assisting Z to access education. This was still not delivered while Z was receiving at-home tuition.
33. For elements of the EHC Plan which could be delivered at home, the Council was still under a duty to deliver what was in Section F of the Plan, which is separate to matters appealable to the SEND Tribunal.
34. The Council failed to deliver the social communication and speech and language provision between January and July 2022 despite it being possible to deliver this while Z was not attending a school. This was fault by the Council. This fault caused Z to miss important SEN provision from Z’s Plan and uncertainty about whether Z would have been better able to engage with their at-home tutoring, were it not for this fault.
35. I have decided to exercise discretion to look at this period of missed provision, despite the missed provision beginning a year and six months before Ms X complained to the Ombudsman. The reason for this is that Ms X’s complaint about this issue was subject to a delay in the Council’s response of approximately six months. If it were not for this delay, this issue would have been brought to us in time.

Events from September 2022 to May 2023

36. The Council held another annual review in October 2022 which recommended amendments to sections A and B of Z’s EHC Plan. The Council began a new set of consultations with schools from November 2022 to May 2023.
37. The Council issued an amended final EHC Plan in December 2022. It again named School 1 from September 2020 to the date Z was permanently excluded in 2021. It did not name any other school despite Z no longer attending. The amendments that had been made, were made to sections A and B that described the family’s views and Z’s needs. The Council kept the same provision in section F, despite this listing provision to be led in schools. The Council said it did this so it could carry out consultations with other schools. This Plan listed the same social communication and speech and language input that it did in the January 2022 EHC Plan.
38. Z continued to have access to the 1:1 online tuition for 15 hours a week but Z’s attendance was very low at around 12%. During this time, Z could not access any of the Section F provision from Z’s Plan that was to be delivered in a school. In addition, Z continued not to receive the speech and language therapy and social communication programme in the Plan either, despite this being deliverable at home.
39. Following the consultations with around seven special schools, in May 2023 the Council amended Z’s EHC Plan to name School 2. Z began attending School 2 earlier in March 2023.
40. In January 2023, Ms X asked the Council to have Z’s 100 hours of short break support funded as a direct payment and for the payments to be backdated to 2020 as Z had been unable to use it during COVID-19. These direct payments could be used to hire a personal assistant for Z to take Z to activities in the community or specialist leisure facilities.
41. The Council agreed to set up direct payments from January 2023 but refused to backdate it to 2020.

Findings on September 2022 to May 2023

42. As these are events that happened within 12 months of Ms X complaining to us, I have considered if there is anything I could investigate further.
43. The Council was right to set up direct payments for Z following Ms X’s request in January 2023. There was no fault in the Council’s decision not to backdate Z’s direct payments to 2020 as this would not be a typical remedy for any upheld complaint that sessions had been missed. The Council was not at fault. In any case, as set out in paragraph 27 we are not investigating this earlier complaint regarding the reasons for any loss of short breaks as this complaint is late.
44. The Ombudsman cannot direct changes to the sections of EHC Plans setting out needs, education, or the name of the educational placement. Only the SEND Tribunal can do this. 
45. Regarding the suitability of education provided during this time, I have decided again it was reasonable for Ms X to have appealed to tribunal against the December 2022 EHC Plan. Once again, the Council had amended Z’s EHC Plan and not changed anything in section F to take account of the Council educating Z at home (online) for 15 hours a week since Z’s permanent exclusion. The Council did not amend the education setting in section I to name a type of setting or another educational placement.
46. Ms X could have appealed to the tribunal to get this resolved, especially as the Council’s online education of Z had been in place for over a year and she felt it was not working. Ms X’s dissatisfaction with the suitability of this education is too closely linked to the disagreement with the EHC Plan, or the need to have sections F and I amended, for us to be able to investigate.
47. The Ombudsman can usually look at complaints that councils have failed to deliver the provision listed in section F of an EHC Plan, and if we find fault leading to injustice, we can recommend a remedy. In this case the reason Z did not receive most of the support set out in section F of Z’s EHC Plan was because it was designed for delivery at a school and for supporting Z with their interaction with other pupils. Z could not do this as the Council had not named a school in section I that was able to take Z, despite its consultations with schools.
48. The education Z received and most of the special educational support that was or was not available to Z was too closely linked to the reasons Ms X could have appealed to the tribunal - to have sections F and I amended - for us to be able to investigate.
49. However as explained in paragraphs 31-33 above, the social communication programme and speech and language therapy input from Section F was deliverable at home. Again, the Council failed to arrange this provision for Z. This was fault by the Council.
50. This fault caused Z to miss out on this provision from December 2022 to March 2023, when Z began attending School 2. This fault contributed further to the uncertainty about whether Z could have had better educational outcomes during this time were it not for the fault.

Ms X’s complaint to the Council

51. The Council’s corporate complaints procedure says it will respond to complaints received under this process within a maximum of twenty working days at stage one. It says it will then respond to complaints at stage two, if this is requested, within 25 working days of the request.
52. Ms X complained to the Council in a letter dated 28 September 2022. In summary, she said she was unhappy with the level of education and support her son, Z, had received since they were excluded from Z’s school in late 2021 and how Z’s Education, Health and Care Needs Assessment was carried out in 2020.
53. The Council said it received this complaint on 3 October 2022 and it responded at stage one on 25 October. It partly upheld two of her complaints and did not uphold the others. It explained its reasons for this.
54. Ms X was unhappy with the Council’s response and shortly after, asked for the complaint to be escalated to stage two of the complaints process.
55. The Council appointed an independent person to investigate the complaint rather than a member of the corporate complaints team, due to lack of capacity within that team.
56. The independent person carried out a detailed investigation under the corporate complaints procedure. However, this investigation ran well over the given timeframe of 25 working days. Instead, the Council did not respond at stage two until almost eight months later, in July 2023. The Council apologised and said the reason for this was due to a lack of capacity among staff in its corporate complaints team.
57. In its response at stage two, the Council upheld some of Ms X’s complaints and agreed to carry out two service improvement recommendations:
1. It would investigate possible improvements it could make to its EHC Plan system and its communication with schools about EHC Plans; and
2. It would look at how information is shared with its service users regarding direct payments and related services.
58. It also agreed to carry out several actions with Ms X directly in its stage two complaint response. It said it would:
1. Explain to Ms X why the manager of the SEND team was not aware that Z’s EHC Plan was not reviewed as scheduled in July 2021, and outline what improvements it has made to its processes to prevent this occurring in future;
2. Explain to Ms X what role its Behaviour, Attendance and Children Missing Education (BACME) team play in the reviewing of EHC Plans;
3. Clarify with Ms X what services its SEND team offer and signpost her to any additional support she may benefit from; and
4. Explain to Ms X why one of her complaints to the Council was partly, rather than fully, upheld at stage one in October 2022.
59. Ms X was unhappy with the Council’s response at stage two and complained to the Ombudsman in July 2023.

Finding on complaint handling

60. The Council was a few days late responding to Ms X’s complaint at stage one. However, this delay did not cause a significant injustice to Ms X.
61. The complaint was investigated thoroughly at both stage one and stage two. In this regard, the Council was not at fault.
62. However, there was significant delay in the Council responding at stage two of its corporate complaints procedure.
63. An independent person investigated the complaint at stage two due to a lack of capacity among the Council’s staff handling corporate complaints. However, the Council remains responsible for the timeliness of this response.
64. According to its policy, the Council should have responded by 21 December 2022. Instead, the Council responded almost seven months after this date. This delay was fault by the Council. This fault caused Ms X frustration and uncertainty.
65. The Council also failed to carry out all the actions it said it would in its stage two complaint response and still had not done so several months later. This was fault by the Council and caused Ms X further frustration.

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Agreed action

66. Within one month of the final decision, the Council has agreed to:
1. Apologise to Ms X and Z for the injustice caused by the faults in this case;
2. Pay Ms X £150 to recognize the frustration caused to her by its delayed complaint handling;
3. Pay Ms X £2,000, to be used for Z’s benefit, to recognize the ten term-time months they were without a social communication programme regularly reviewed by a Speech and Language Therapist, as set out in Z’s EHC Plan;
4. Carry out all the recommendations the Council said it would in its stage two complaint response, as set out in paragraphs 56a – b, and 57a – d of this decision.
67. Within three months of the final decision, the Council should:
1. Remind its SEND staff that the Council is under a duty to arrange the provision in Section F of children and young people’s EHC Plans;
2. Demonstrate how it has improved its timeliness for investigating corporate complaints; and
3. Set out how it will improve, or has improved, its systems for checking that actions arising from complaint investigations are carried out as agreed.
68. The Council should provide us with evidence it has complied with the above actions.
69. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.

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Final decision

70. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay Ms X a financial remedy and carry out service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman