Summary: Ms X complained the Council failed to secure a place for their child at their preferred education placement. We found no fault in the Council not securing the place. But we found fault with its communications about this issue and delay in answering Ms X’s complaint. These faults caused unnecessary distress. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to remedy this injustice.

The complaint

1. I have called the complainant ‘Ms X’. She complains about the Council’s provision of education to her child ‘Y’, currently detained in hospital under the Mental Health Act. Specifically, Ms X says the Council:

• failed in 2022 to secure a place for Y at their preferred education placement;
• has failed more generally to identify an education placement for Y, which has delayed their discharge from hospital;
• failed to answer her complaint in reasonable time.

2. Ms X says this has caused Y’s health to decline, as they have lost faith in the assurances of support given by the Council. Poor communications about these matters and delay have also caused unnecessary frustration for them both.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)
6. 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.
7. 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)
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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How I considered this complaint

9. Before issuing this decision statement I considered:

• Ms X’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence between Ms X and the Council pre-dating our investigation of her complaint;
• information provided by the Council in response to written enquiries;
• a letter sent to Ms X by the Council in January 2024 setting out its updated position on matters covered by this investigation;
• any relevant law, national guidance or Council policy referred to in the text below;
• any relevant guidance published by this office, including that we publish on remedies;
• a report we issued in June 2023. This considered delays in the Council’s handling of complaints made about its special educational needs service 22 003 403 - Local Government and Social Care Ombudsman.

10. I also sent Ms X and the Council a copy of a draft version of this decision statement to comment on. I took account of their responses before finalising the decision.

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What I found

Key law and statutory guidance

11. A child with special educational needs may have an EHC Plan setting out the child’s needs, and arrangements to meet their needs.
12. Section I of the Plan will name the education setting, or type of education setting, the child or young person will attend.
13. Government guidance, contained in the Special Educational Needs Code of Practice, does not have specific advice on circumstances where children or young people are detained under the Mental Health Act. However, it does have sections about young people detained in youth custody. It says that where councils maintain an EHC Plan for such young persons, they must ensure it names an education setting the young person can attend “on release”.
14. Parents can appeal to the SEND Tribunal about the content of an EHC plan, once finalised.

Council complaint procedure

15. The Council publishes its complaint procedure online. The procedure has two stages. So, if a complainant, is unhappy with the first reply to their complaint, they can ask for a review at the second stage. The Council says that at each stage it will answer the complaint within 20 working days, except at stage two for ‘complex cases’ where it might take 65 working days to reply. It says that it will explain if a reply may take longer.

Background and key facts

16. Since 2020 Y has been a hospital inpatient, detained under the Mental Health Act 1983.
17. Y has special educational needs and has an EHC Plan. Following review, the Council issued final versions of the Plan in January 2022, June 2022 and January 2023. These have all named a hospital school in Section I of the Plan.
18. A March 2022 review of the Plan said Y wanted to attend a named specialist education setting. In May 2022 the Council consulted the setting asking if it could name it on Y’s EHC Plan from September 2022. At first, the setting said it could not meet Y’s needs. However, after contact from Ms X, it agreed to reconsider. Then, in July 2022 the setting wrote to the Council and said it would accept Y at the placement, subject to assurances about the support they would have in place to help them attend.
19. The Council then wrote back saying it did not think the setting could meet Y’s education needs. It also sent an email to Ms X saying that it did not consider the education setting could meet Y’s needs and giving its reasons.
20. Ms X asked the Council to reconsider. The Council then spoke to the setting again, before writing to Ms X in mid-July saying a placement “may still be viable”. It said this would depend on Y’s discharge home, confirmation of health service support and a risk assessment.
21. At the start of September 2022, the education setting wrote to Ms X. It said its discussions with the Council focused on Y having a transition plan to engage with it from December 2022, and for them to attend from September 2023. Ms X replied that this was the first she knew of this proposal. In those exchanges, the setting explained that it had now filled all its placements for September 2022.
22. Over the next two months, there followed discussions about the possibility of Y attending the setting from September 2023. These included discussing if Y could gain a relevant qualification during the 2022/23 academic year, to help enable this. The Council recorded in November 2022, the setting would enrol Y.
23. However, in December 2022 the Council told Ms X and Y the setting could not support Y to gain the qualification needed during the 22 / 23 academic year. An email the setting sent at the end of November 2022 confirms this. The note recorded Y still wanted to attend the setting but the Council had concerns about if it could meet their needs. In particular, because of physical constraints on the building which might make it unsuitable for Y’s needs which the education setting could not resolve.
24. In January 2023 the education setting sent an email to the Council saying it could not provide a place for Y “now or in September”. It said this was due to constraints on its building which it could not change and uncertainty about its likely relocation. The education setting also sent an email to Ms X to explain its position.

Ms X’s complaint and subsequent events

25. In October 2022 Ms X wrote to the Council, saying it had failed to deliver an earlier commitment to secure Y's preferred education setting from September 2022. Further, that Y’s current provision did not enable them to gain the qualification needed to begin the provision in September 2023. The Council treated this email as a complaint. In acknowledging it, the Council said that it saw “no reason” the hospital school could not liaise with Y’s preferred education setting to obtain the qualification.
26. In January 2023 the Council issued an updated version of Y’s EHC Plan. This did not name Y’s preferred education setting in ‘Section I’. Ms X has appealed the content of the Plan, including Section I. She considers the Council at fault for failing to name any setting Y could attend on discharge. It is her understanding the Council will not do this as it does not consider it can name a setting until Y has a date for discharge or is discharged.
27. The Council did not reply to Ms X’s complaint until April 2023. In between it sent one update in March 2023, apologising for the delay and explaining how the Special Educational Needs service was prioritising its work.
28. When the Council replied it said that it continued to liaise with the hospital school to ensure it could support Y. It said the hospital school could contact it, should it consider Y needed more support. It said it would continue to look for a suitable placement for Y on their discharge from hospital.
29. Ms X replied the same day, saying the Council had not addressed her complaint that it had failed to secure a place for Y at their preferred education setting in September 2022. The Council registered this at stage 2 of its complaint procedure.
30. Ms X chased a reply in late June 2023. The Council acknowledged her email but did not provide a substantive reply.
31. In January 2024, during this investigation, the Council provided its Stage 2 reply to Ms X’s complaint. It acknowledged having discussions around Y attending their preferred setting from July 2022. It says it subsequently had discussion about Y having a slow transition to attend the setting, with support, from around December 2022 onward so they could attend the setting from September 2023.
32. It said however, that it never agreed the preferred setting could meet Y’s education needs. And that further there was never an agreed discharge date for Y from hospital that would enable it to complete a risk assessment and transition plan for Y, necessary to enable that. It said it did not know why the education setting did not hold open a place for Y.

My findings

My approach to the Ombudsman’s jurisdiction and Ms X’s complaint about the Council’s naming of a placement in Section I of Y’s EHC Plan

33. The term jurisdiction refers to our legal powers to investigate a complaint. I have considered the extent to which these may restrict our investigation, given parental rights of appeal to the SEND Tribunal about the content of an EHC Plan.
34. In particular, I have considered how it impacts on Ms X’s complaint the Council has failed to name a placement on Y’s EHC Plan they can attend on discharge from hospital. I do not dispute Ms X’s assertion the Council can, in principle, name an education setting (or type of setting) Y can attend on her discharge from hospital. I do not consider it would have to wait for Y’s actual discharge to do this.
35. But where a parent has appealed the Council’s decision not to name a particular setting (or type of setting) on an EHC Plan we have no power to investigate a complaint. This is relevant when considering the EHC Plan issued by the Council in January 2023. Because the Council’s decision not to name any placement in Section I forms part of Ms X’s appeal. So, I cannot take a view on whether the Council was at fault, in the specific circumstances of the case, not to name a placement on Y’s EHC Plan at that time.
36. However, I have decided to investigate the Council’s liaison with Y’s preferred education setting between May 2022 and January 2023.
37. During this time Ms X also had a right of appeal, following the issue of the June 2022 EHC Plan. Potentially, she could therefore have asked a SEND Tribunal to name Y’s preferred setting on their Plan.
38. However, I consider it reasonable in this case that Ms X did not use that right of appeal. This is because at the relevant time the Council was engaging with the education setting and working to see if it could meet this preference. I consider it only became clear it would not (or could not) do so in December 2022.
39. In these circumstances, it was both reasonable and understandable Ms X let her appeal rights lapse. And I consider this provides us special reasons to investigate the complaint.

The complaint the Council failed to secure a placement for Y at her preferred setting in September 2022

40. From May 2022, the Council actively considered securing a place for Y at her preferred setting from September 2022. However, it decided against that in July 2022, considering the setting could not meet Y’s needs at that time.
41. It gave its reasons for this decision and communicated these to Ms X. I cannot find fault in its decision based on its officer’s professional judgment at the time.
42. However, when Ms X asked the Council to reconsider, I find some confusion crept into its communications with her. The Council told her it considered a placement may still be viable. But it did not set out whether it considered it might be viable from September 2022 or later. Consequently, for several more weeks Ms X and Y had the impression Y might begin attending the education setting from September 2022. And it was not the Council, but the education setting which corrected that.
43. This poor communication was a fault. It caused injustice to Ms X and Y in raising their expectations which caused them unnecessary distress.
44. I also find there were some unclear communications that followed in Autumn 2022 around the proposed transition plan for Y to attend the education setting from September 2023. I found no fault in the Council’s approach towards trying to support Y with a qualification which may have enabled them to attend the setting. I find the Council entered discussions with colleagues from health, the hospital school and the education setting in good faith. It did nothing that prevented any planned tuition or support, linked to a qualification, coming to fruition. I consider the plan failed finally because the education setting said it could not provide the support needed. But I do not find Ms X or Y received clear explanation for this. This too was a fault causing uncertainty and distress as a result.
45. I do not find any further fault in communications in December 2022 and January 2023, when it became clear the education setting did not support offering a place to Y from September 2023. Both the Council and the setting gave their reasons to Ms X.

The complaint about delay in the complaint procedure

46. The Council has delayed unacceptably in answering Ms X’s complaint. I have not made specific enquiries into this matter given the report referred to in paragraph 9 which found an extensive backlog of unanswered complaints about the Council’s special educational needs service. We made a series of recommendations designed to ensure the Council tackled this issue. We recognised it would take time for the Council to resolve the backlog and have monitored the steps it has taken subsequently separate to this investigation.
47. However, I must still record the delay in answering Ms X’s complaint as a fault. Ms X’s complaint was not complex and so it should have taken no more than three months for it to complete the Council’s complaint procedure. But in total it took around 15 months, equivalent to a year of delay, for it to do so.
48. The delay caused Ms X uncertainty, as for many months she did not know the Council’s position on the matters she raised with it. We consider this an injustice, as distress.

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Agreed action

49. In paragraphs 43 and 45 I identified where fault by the Council caused injustice to Ms X and Y. In paragraph 48 I identified where fault caused Ms X further injustice. The Council has accepted these findings and to remedy this injustice it has agreed that within 20 working days of this decision, it will:
1. apologise to Ms X and Y, accepting the findings of this investigation and in line with the advice on apologies we publish in our guidance on remedies Guidance on remedies - Local Government and Social Care Ombudsman (section 3.2);
2. pay Ms X £500; £200 of this to reflect the distress caused to Ms X and Y for the poor communications around its contacts with Y’s preferred education setting during 2022; and £300 for the delay in replying to her complaint.
50. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

51. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Ms X and Y. The Council accepts this finding and has agreed action that I consider will remedy the injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman