Summary: Ms B says the Council failed to provide education to her son, failed to keep her up-to-date with what was happening, failed to update her son’s education, health and care plan and delayed responding to her complaint. The Council failed to put in place education for part of the period, did not always respond to Ms B’s queries, failed to meet with her as it agreed to do and delayed responding to her complaint. An apology, reminder to officers and payment to Ms B is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained the Council:
• failed to provide education to her son;
• failed to keep her up to date with what was happening, respond to her queries and telephone calls or arrange a meeting as it agreed to do;
• failed to update her son’s education, health and care plan (EHC plan);
• failed to provide her with adequate explanations about funding; and
• delayed responding to her complaint.
2. Ms B says as a result her son missed out on schooling and it had a significant impact on the rest of the family as he was out of education.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
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)

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Ms B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

Provision of education

10. 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.
11. 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.
12. 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)
13. Full-time education is not defined but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child. However, if a Council is arranging one-to-one tuition, fewer hours may be appropriate, given the increased intensity of learning.

Education, health and care plans

14. A child with special educational needs may have an EHC plan. An EHC plan describes the child's special educational needs and the provision required to meet them.
15. An EHC plan should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child's EHC plan.
16. 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 EHC plan.
17. The special educational needs code of practice (code of practice) says where a child or young person moves to another local authority, the ‘old’ authority must transfer the EHC plan to the ‘new’ authority.
18. The code of practice says the requirement for the child or young person to attend the educational institution specified in the EHC plan continues after the transfer. However, where attendance would be impractical, the new authority must place the child or young person temporarily at an appropriate educational institution other than that specified – for example, where the distance between the child or young person’s new home and the educational institution would be too great – until the EHC plan is formally amended.
19. The code of practice says the new authority may, on the transfer of the EHC plan, bring forward the arrangements for the review of the plan, and may conduct a new EHC needs assessment regardless of when the previous EHC needs assessment took place. The new authority must tell the child’s parent or the young person, within six weeks of the date of transfer, when they will review the plan (as below) and whether they propose to make an EHC needs assessment.
20. The new authority must review the plan before one of the following deadlines, whichever is the later:
• within 12 months of the plan being made or being previously reviewed by the old authority, or
• within 3 months of the plan being transferred.

What happened

Education

21. Ms B’s son has special educational needs and an EHC plan. Ms B’s son was attending a specialist school in another area. Ms B contacted the Council in June 2021 to tell it she and her son would be moving into the Council’s area later that year.
22. Ms B moved into the Council’s area at the beginning of October 2021. The Council received the pupil file from the previous local authority on 5 October. The Council provided Ms B with some information about the moving in process on 8 October. Ms B told the Council about her school preferences for her son on 9 October.
23. The Council allocated the case to an officer who contacted Ms B on 14 October. That officer told Ms B she would explore home tuition for an interim period until the Council had identified a suitable school.
24. The Council began consulting schools on 15 October. None of those schools had a place available for Ms B’s son. The Council consulted further schools.
25. Ms B asked the Council to provide a tutor for her son on 11 November. On 22 November the Council agreed to provide 18 hours education to Ms B’s son, delivered by a tuition company. There was a delay putting that into place as the tuition company did not have a suitable tutor.
26. Ms B chased the Council in December 2021 as she had not received any contact from the tutoring company. The Council said it would look to see whether it could identify an alternative tutor as the company appointed did not have a suitable tutor for Ms B’s son. The Council said it would arrange a meeting with Ms B in the first week of January to discuss tuition arrangements and update her on responses from any consultations.
27. Ms B’s son began receiving 18 hours tutoring per week from 4 January 2022.
28. When putting in a complaint on 12 January Ms B asked the Council to consider reviewing the EHC plan. Ms B raised concerns her son would miss out on a suitable school placement as the information in the EHC plan was out of date.
29. The Council consulted some out of borough schools in January 2022.
30. On 15 February 2022 the Council issued an EHC plan to give Ms B a right of appeal. The Council had not changed anything in the EHC plan other than to convert it into the Council’s format. Ms B appealed to tribunal.
31. In October 2022 the Council identified a specialist school placement for Ms B’s son. The Council agreed to carry out an up-to-date educational psychology and speech and language therapy assessment to update the EHC plan within two terms of his attendance at the new school. The Council then issued an amended EHC plan to name the allocated school. Ms B’s son began attending that school in November 2022.

Complaint process

32. On 12 January 2022 Ms B put in a complaint. The Council responded to the complaint on 24 January.
33. On 7 September after some issues with the tuition service stopping provision Ms B asked the Council to escalate her complaint to the next stage. Ms B asked the Council to do that again on 6 October. The Council contacted Ms B on 10 October to tell her it considered the matters she had raised were new issues but gave her the opportunity to provide further details. Ms B provided those further details on 12 October and the Council acknowledged receipt on 17 October. The Council told Ms B it would respond to her stage two complaint by 31 October. The Council responded to the complaint on 1 November.

Analysis

34. Ms B says the Council failed to provide full-time education to her son between October 2021 and November 2022. I have exercised the Ombudsman’s discretion to go back to October 2021 as I am satisfied Ms B complained within 12 months of the complaint process completing and as there was an appeal during part of the period.
35. I am not, however, considering any failure to provide education to Ms B’s son between 15 February 2022 and October 2022. That is because Ms B had, and exercised, a right of appeal when the Council issued an EHC plan on 15 February 2022. That appeal did not complete until October 2022. The Ombudsman does not have jurisdiction to consider a complaint about failure to provide schooling when there is a right of appeal or during the appeal process.
36. I am satisfied Ms B’s son moved into the Council’s area at the beginning of October 2021. The Council was therefore responsible for ensuring Ms B’s son received full-time education from that point. I appreciate from Ms B’s point of view she had told the Council about her move into its area before she moved. In those circumstances I understand why Ms B would have expected the Council to put in place provision so her son could begin either tuition or a new school from October 2021. However, the Council’s responsibility to arrange schooling for Ms B’s son did not begin until Ms B moved into its area. I therefore would not expect the Council to have made arrangements for Ms B’s son’s education until he moved into the Council’s area.
37. I am satisfied the Council promptly began consulting schools to identify a suitable place for Ms B’s son once he moved into its area. The evidence I have seen satisfies me the reason the Council could not put in place education in a new school was because it could not identify a suitable placement. That is not due to fault by the Council.
38. However, given Ms B’s son had an EHC plan which named a specialist school in another council’s area I would have expected the Council to recognise it would take some time to identify a suitable placement and to have considered putting in place tuition in the interim. The evidence I have seen satisfies me the Council intended to do that in October 2021. However, I have seen no evidence the Council began looking for a tutor for Ms B’s son until November 2021. There was then delay putting the tuition into place until January 2022 due to the difficulty identifying a suitable tutor.
39. As the Council was responsible for ensuring Ms B’s son received education failure to put any education in place for him between October 2021 and January 2022 is fault. That meant Ms B’s son missed out on education for part of one term. To remedy that I recommended the Council pay Ms B £700. I also recommended the Council remind officers of the Council’s section 19 duty and the need to consider alternative provision at an early stage when it experiences delay identifying a suitable school placement. The Council has agreed to my recommendations.
40. The evidence I have seen satisfies me the Council put in place tutoring for Ms B’s son between 4 January 2022 and 14 November 2022. I am satisfied that involved 18 hours per week. I appreciate that does not equate to the number of hours a child receives in school. However, as I say in paragraph 13, one-to-one tutoring is more intensive than education provided in a school environment. I would therefore not expect tutoring to match the number of hours Ms B’s son would have received in education in a school. I consider 18 hours a significant amount of provision when it is provided on a one-to-one basis. I therefore do not criticise the Council for the amount of education provided to Ms B’s son between 4 January 2022 and 14 February 2022, when the appeal right arose or between when the tribunal process completed in October 2022 and Ms B’s son began school in November 2022.
41. Ms B says the Council failed to manage her expectations about how long it would take to identify a school place for her son when she told it about her move into the area in June 2021. I understand Ms B would have preferred more information about the length of time it might take to identify a school place given it has taken some time to do so in her son’s case. However, I do not consider it likely the Council could have anticipated the amount of time it would take. So, even if the Council had given Ms B more information about potential difficulties identifying a school place it is unlikely this would have identified the length of the delay that occurred in this case. I therefore do not criticise the Council here.
42. Ms B says the Council failed to keep her up to date with what was happening or respond to her emails and telephone calls. Although I do not have a copy of all Ms B’s communications with the Council it is clear there were periods when Ms B had to chase the Council for updates. Failure to keep Ms B up-to-date or respond to her emails and telephone calls promptly is fault.
43. Ms B says the Council failed to arrange a meeting with her despite agreeing to do so in December 2021. The evidence I have seen satisfies me the Council agreed in December 2021 to set up a meeting in January 2022. That meeting was to discuss the position with tutoring and to update Ms B on the Council’s search for a new school. I appreciate the tutoring issue had been resolved by January 2022. However, I am satisfied the meeting was not just to discuss the tutoring issue. I therefore would have expected the Council to arrange a meeting, as it had agreed to do. Failing to arrange that meeting is therefore fault.
44. Ms B says the Council failed to answer her questions about tutoring until she spoke to an officer in December 2021. Ms B also says when the Council set up a tutor it did not provide her with any information about it. For the first part of this complaint, I do not have a copy of the communications between Ms B and the Council where she asked it for more information about tutoring. As I have noted though, there is some evidence of delays and failure to respond to Ms B’s correspondence. I consider it likely this also affected this part of the complaint.
45. For the failure to provide information to Ms B about the tutoring service, the Council is clear it expected the tutoring service to provide that information. I understand that would likely normally be the situation. In this case though it is clear Ms B had communicated several concerns to the Council about how things were progressing and the Council had agreed to meet. I consider it likely if the Council had arranged the meeting it had agreed to in December 2021 it could have provided Ms B with more information about the tutoring service to address her queries. I have made clear failure to arrange the meeting when the Council had agreed to do so is fault.
46. Ms B says the Council failed to update her son’s EHC plan when she moved into its area. Ms B says because the Council delayed amending the EHC plan it was not consulting schools on the most up-to-date information. I set out in paragraph 20 what the code of practice says about when an EHC plan should be amended when a child moves into another Council’s area. This makes clear there is no requirement for the Council to automatically amend an EHC plan. Instead, the Council is expected to amend the EHC plan either within three months of the move or within 12 months of the previous review, whichever is the later.
47. In this case Ms B’s son was due for a review of his EHC plan in May 2022 and that is the later date. By that point though Ms B had appealed the February 2022 EHC plan. As the Council was not required to amend the EHC plan when Ms B moved into its area I have no grounds to criticise it.
48. Ms B says the Council failed to provide her with enough information about funding. Ms B is referring here to funding from the Council so she could identify a tutor for her son. The Council is responsible for ensuring education provision is in place. However, I would expect the Council to respond when a parent asks about securing funding to arrange provision themselves. I have made clear the Council was at fault for the delay putting tuition in place.
49. Ms B says the Council delayed responding to her complaint. Under the Council’s complaints procedure it has 10 working days to respond to complaints at both stages one and two. For the stage one complaint I am satisfied Ms B put a complaint in on 12 January 2022 and the Council responded on 24 January 2022. That is within the timescales set out in the Council’s complaints procedure.
50. However, Ms B asked to escalate her complaint on 7 September 2022. The Council delayed seeking clarification from Ms B about her complaint until 10 October, which is after Ms B had chased the Council. That delay is fault. The Council did not respond to the complaint until 1 November 2022 which is slightly outside the timescales in the Council’s complaints procedure.
51. I refer to an appropriate remedy for the missing education for Ms B son between October 2021 and January 2022 earlier in this statement. I am satisfied though the situation has caused Ms B distress and she has experienced delays in responses to her communications and the complaint. To remedy Ms B’s distress and frustration I recommended the Council apologise and pay her £500. The Council has agreed to my recommendations.

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Agreed action

52. Within one month of my decision the Council should:
• apologise to Ms B for the distress and frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Ms B £1,200; and
• send a reminder to officers about the Council’s section 19 responsibility to ensure a child receives education and the need to consider making a referral for a tutor at an early stage if a school cannot be identified.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman