Summary: Ms X complained the Council failed to find a school place for her daughter after a Tribunal Order and she has missed out on suitable education for a significant period. We found the Council at fault as it had not been able to secure a school place or meet its legal duty to provide suitable full time education. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Ms X complains the Council has failed to arrange a school placement for her daughter since a Tribunal Order and the Council has not provided suitable alternative provision or education for her since she has been out of school for over a year. This has caused significant distress and uncertainty for the family, and she says her daughter has been impacted by missing out on opportunities to make educational or social progress.

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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 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.
4. 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)
5. 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comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
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 cannot investigate the period from June 2022 and March 2023. During this time, Ms X lodged an appeal with the SEND Tribunal and therefore is outside of the Ombudsman’s jurisdiction. The term “jurisdiction” refers to our legal powers to investigate a complaint. Paragraphs 4 and 5 refer to the reasons for this.
9. I have investigated the period after the SEND Tribunal appeal was heard. I have investigated from March 2023.

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How I considered this complaint

10. I discussed the complaint with Ms X and considered her views.
11. I made enquiries of the Council and considered its written responses and information it provided.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Education, Health and Care Plans (EHC Plans)

13. 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 (Section B), special educational provision (Section F), or the name of the educational placement (Section I). Only the tribunal or the council can do this.

Alternative provision

14. 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.
15. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
16. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN).
17. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
18. We issued a focus report “Out of school, out of sight?" in July 2022. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children receive suitable full-time education.

Background – summary of key facts

19. Ms X’s daughter (“J”) has complex medical needs and learning difficulties.
20. In June 2022, the Council issued a final EHC plan for J. It named a mainstream secondary school for her to attend (“School 1”) in September after finishing primary school. Ms X appealed Sections B, F, and I. She wanted School 2 to be named.
21. In September 2022, J did not start at School 1 due to anxiety. In November 2022, School 1 arranged for J to attend an alternative provision placement one full day a week. She did very well at these sessions. J had been offered online tuition but could not access it as it was too difficult for her at that stage.
22. Between September 2022 and February 2023, the Council consulted several schools.

What happened – summary of key relevant events

23. In mid-March 2023, the SEND Tribunal issued its order for the Council to make amendments to Sections B and F, and change Section I in J’s EHC plan to name a type of setting: “a special school placement for pupils with complex needs”. It concluded School 2 would not be suitable for J’s needs.
24. Between late March 2023 and July 2023, the Council consulted several schools.
25. At the end of June 2023, Ms X’s representative formally complained to the Council with concerns as it had still not sourced a school placement for J since the Tribunal Order and for a lack of updates.
26. In mid-July 2023, Ms X emailed the Council to ask for J to defer a year when a placement was found as she was so far behind. She later also requested if J could attend the alternative provision placement for an additional day per week. The Council acknowledged these.
27. In late July 2023, the Council sent a Stage One complaint response. It accepted it had not always kept Ms X updated. It apologised the process of finding a school place for J caused frustration and disappointment. It would continue to work with her until it found a placement. Ms X escalated her complaint. She wanted a school place for J as a matter of urgency.
28. In early August 2023, the Council sent at Stage Two complaint response. It said it had actioned the Tribunal Order, but it had not named a specific school. It had actively worked to find a placement through sending several consultations, but to no positive offers. It said alternative provision would be an appropriate option to pursue for J and it would continue to assess if a learning package could be put in place for the new school year.
29. In late August 2023, an internal decision making Panel considered Ms X’s request to hold J back a school year. It suggested an Education Otherwise Than at School (“EOTAS”) package would be more appropriate as there was uncertainty about her placement.
30. In early September 2023, Ms X chased the Council about the extra day request. The Council offered potential discussions for an EOTAS interim package for J. It sent a brochure of various other alternative provision options and asked for Ms X’s preferences. It also said private tutoring could be looked at which could be done in a location away from home.
31. Ms X said J only wanted an additional day at the alternative provision placement and she did not want private tutoring. The Council suggested another alternative for tutoring. It appeared Ms X did not respond or follow up on this suggestion. In mid-October 2023, Ms X complained to us.
32. At the end of October 2023, Ms X’s representative contacted the Council and said Ms X wanted a school place for J. The Council said the aim was to find a placement but wanted to put together an interim package of support in the meantime.
33. In mid-November 2023, the Panel considered Ms X’s additional day request. It needed more information to make a decision. At the start of December 2023, the Panel reconsidered the request. It said the alternative provision placement could not increase J’s attendance due to statutory constraints limiting what it could offer. It noted Ms X had declined the offer of an EOTAS package. The Council received three further negative school consultation responses.
34. In mid-January 2024, the Panel agreed the Council should direct School 3 (Ms X’s second parental preference) to admit J. It amended her final EHC plan and named School 3 in Section I.

Analysis

Special school placement

35. I acknowledge the Council has made reasonable efforts to try and find a suitable school place since the Tribunal Order with numerous consultations. I also recognise the difficulties it faced when none offered J a place. However, the Council has not met its legal duty to provide J with a suitable education in a special school which can meet her needs or deliver the provision in her EHC plan. The lack of suitable education provision is fault.

Alternative provision

36. Ms X’s main priority was for the Council to find a school place for J, which the Council has actively tried to do. But J was not in school, and councils have a section 19 duty to make suitable education arrangements when a child of compulsory school age who because of exclusion, illness, or otherwise may not receive a suitable education unless the council arranges it for them.
37. The Council was aware J attended an alternative provision placement one day a week, arranged by School 1. After the Tribunal Order, I cannot see the Council reassessed or reviewed the suitability of what J was receiving. I cannot see if it considered whether this could be increased or if it could offer any other or additional arrangements. I am not satisfied it fully considered its section 19 duties from March 2023. This is fault.
38. There were delays with Ms X’s extra day request for J at the alternative provision placement in July 2023. It appears the Council did not really engage in discussions with Ms X about any other alternative provision options until September 2023, when Ms X chased for a decision. I note at this point, the Council did encourage Ms X to consider other options and try to get further education in place for J, but Ms X and J declined as they wanted the extra day.
39. With this in mind, it took until November 2023 for the Panel to consider it and December 2023 when the Council said the alternative provision placement could not do an extra day for legal reasons. In my view, there is uncertainty with whether Ms X would have considered more options for J had she known this much sooner. The Council’s delay with its consideration of its section 19 duties and her request is fault. This has caused injustice to Ms X with avoidable frustration and uncertainty.
40. Taking into account the above, J has not received full-time (or equivalent) suitable education since March 2023. This is fault. While she received some provision, this was only one day a week. She was not attending the school named in her EHC plan and I cannot see the Council delivered the provision set out in Section F. This has caused injustice to J as she has missed out on a considerable period of education and provision she was entitled to, and which the Council has a legal duty to provide.
41. I note it appears J now has a school place since Ms X complained to us. This period onwards is outside the scope of my investigation.
42. In a previous recent decision relating to the Council’s failure to find a special school placement for a child, the Council had shared plans to mitigate the shortage of special school places in the future to try and meet the increased demand for these. We also asked the Council to provide training and guidance to relevant staff on its section 19 responsibilities to prevent future recurrence. It has already done this since Ms X’s complaint to us. Therefore, I have not considered it necessary to repeat the same service improvements in this case.

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Agreed action

43. To remedy the personal injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Apologise to Ms X for the injustice caused by the faults identified;
• Pay Ms X a symbolic payment of £4,400 to recognise the loss of suitable full-time education (or equivalent) for J between March 2023 and January 2024. This can be used for J’s educational benefit; and
• Pay Ms X a symbolic payment of £250 to recognise her uncertainty, distress and frustration caused.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I found fault with the Council which caused injustice to Ms X and J. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman