Summary: Mr X complained that the Council delayed in arranging a place for his son at the school named by the SEND Tribunal and failed to put in place suitable alternative provision. We found the Council was at fault because there was a delay in admitting the child to his new school. As a result, he missed out on provision. In recognition of the injustice caused, the Council has agreed to make a payment to Mr X.

The complaint

1. Mr X complains that the Council:
• failed to put in place alternative provision in September 2022 when his son’s school could not meet his needs;
• failed to ensure the alternative provision offered in January 2023 was adequate;
• delayed in arranging a place for his son at the school named by the SEND Tribunal; and
• delayed in responding to his complaint.

Back to top

The Ombudsman’s role and powers

2. 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)
3. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

6. I have investigated Mr X’s complaint that the Council delayed in arranging a place for his son at the school named by the SEND Tribunal and that the provision it put in place in the meantime was inadequate. I have also considered Mr X’s complaint that the Council delayed in responding to his complaint.
7. I have not investigated Mr X’s complaint that the Council failed to put in place alternative provision between September and December 2022. This is because the courts have established that, if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, connected to, or could have been part of, the appeal. The period we cannot investigate starts from the date the appealable decision was made and given to the parents. The period ends when the Tribunal reaches its decision.

Back to top

How I considered this complaint

8. I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Content of an EHC Plan

11. The EHC Plan is set out in sections which include:
• Section B: Special educational needs;
• Section F: The special educational provision needed by the child or the young person;
• Section I: The name and/or type of educational placement.
12. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC plan.

Appeal rights

13. 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.
14. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
15. The council has a time limit within which it must carry out an order of the Tribunal. The time limit can vary depending on the type of order. For example, the council must:
• issue an EHC plan within five weeks;
• change an EHC plan within five weeks; and
• change the name of the school named in the plan within two weeks.
16. If the Tribunal orders the council to name a different school in the child’s EHC plan, the school must admit the child. The duty to admit the child starts as soon as the EHC plan is made.
17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
18. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’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.
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Injustice we cannot remedy because a right to appeal to tribunal was or could have been used

20. 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).
21. Alternative provision
22. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
24. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
25. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Key facts

26. Mr X’s son, C, has a diagnosis of autistic spectrum disorder. He has an EHC plan. He started infant school in September 2020 and there was an annual review of his EHC plan in September 2021.
27. The Council issued a new EHC plan in February 2022. It named C’s current school which was a mainstream primary school. Mr X appealed against the placement because he considered the school could not meet C’s needs.
28. Mr and Mrs X removed C from the school and elected to home educate him. They commissioned a tuition package for him.
29. In August 2022 the Council accepted the school could not meet C’s needs.
30. On 17 November, as part of the appeal proceedings, there was a judicial alternative dispute resolution hearing. The judge recommended that the Council consider providing tuition for C as it had agreed that a special school would be appropriate but it was unable to offer one for the time being.
31. The following day the Council offered tuition for C. It says it discussed the appropriate amount of tuition with Mr and Mrs X and it was agreed that, because of the more intense nature of one-to-one tuition, any more than three hours a day would be overwhelming for C.
32. On 24 November the Council commissioned Company Y to provide tuition three hours a day, five days a week.
33. On 16 December the SEND Tribunal ordered the Council to name School A (a special school) in C’s EHC plan.
34. On 11 January 2023 Company Y began providing home tuition three hours per day five days a week.
35. On 20 January the Council issued a revised EHC plan naming School A.
36. On 9 March the Council commissioned a company, Company Z, to provide speech and language therapy (SALT) as this could not be provided by School A. The company was also commissioned to deliver training to the school on using C’s communication device. The training was delayed because of lack of capacity within Company Z. Meantime, C continued to receive SALT via a private therapist commissioned by Mr and Mrs X.
37. On 24 April the school told the Council it could not admit C until the training had been provided.
38. On 4 May Mr X complained to the Council saying the home tuition was inconsistent, ineffective and offered no specialist support for C. He also said the Council had failed to secure C a place at School A as ordered by the Tribunal.
39. On 16 May Company Z told the Council it was not able to provide the training to the school.
40. The following day the Council contacted Mr and Mrs X’s private therapist to begin negotiations to commission her to provide the training instead.
41. On 31 May it was agreed that the private therapist would provide the training for the school. However, shortly afterwards, Company Z advised it was now able to provide the training. So, the Council cancelled the training with the private therapist.
42. On 14 June Company Z delivered the training to the school. C started at the school on 19 June.
43. On 14 July the Council responded to Mr X’s complaint. He was dissatisfied with the Council’s response and complained to us in September 2023.

Analysis

44. The Council has accepted there was a delay in admitting C to School A and has apologised for this. It has explained that the delay was because of the necessary training of school staff by a qualified SALT. It says that both Council officers and the school understood that, without this training, staff supporting C would have had no means of reliable communication with him. The Council and the school both felt this would be detrimental to his start at a new school and to his education in general and the school said it could not admit C until the training had been provided. However, it transpired after C started at the school that his ability to communicate was not dependent on the use of the communication device.
45. The Council says the delay in delivering the training was not because of lack of action on its part but because of difficulties with securing an available therapist.
46. While I understand the reasons for the delay in admitting C to School A, the Council was responsible for admitting him when the new EHC plan was issued on 20 January 2023. The delay in doing so was fault and caused C injustice.
47. The Council acted appropriately by putting in place alternative provision between January and June 2023. And I find no grounds to question the amount of provision as one-to-one tuition is much more intense than provision delivered in groups. However, C has complex SEN and these were not met as he did not receive the provision specified in Section F of his EHC plan during this period. He was also socially isolated from his peers. This was a significant injustice.
48. The delay in admitting C to his new school also caused Mr and Mrs X distress and anxiety.

Complaint response

49. Mr X complained to the Council 4 May 2023. The Council did not respond until 14 July 23.
50. The Council’s complaints procedure states that it will respond to a complaint within 10 working days. The delay in responding to Mr X’s complaint was fault and caused him further distress.

Back to top

Agreed action

51. I have not recommended a further apology because the Council has already apologised to Mr X.
52. The Council has agreed that, within one month, it will:
• pay Mr X £1500 in recognition of the loss of provision and distress C suffered. This payment should be used for C’s educational benefit; and
• pay Mr X £500 in recognition of the distress and anxiety he suffered.
53. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

54. I find fault causing injustice.
55. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman