Summary: Mrs X complained the Council failed to identify a suitable school placement or provide suitable alternative provision for her foster daughter, Y. The Council’s failure to identify an alternative school placement and the delay in arranging suitable educational provision amounts to fault. This fault has caused Mrs X and Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the Council failed to identify a suitable school placement or provide suitable alternative provision for her foster daughter, Y. She complains the Council refused to allow Y to return to a tutoring service, Company B, until a suitable school can be found, despite showing great progress there between February and July 2023.
2. Mrs X complained the lack of suitable provision has had a major detrimental effect on Y who has started to regress and is sad, lonely and frustrated. It has also affected Mrs Y’s wellbeing and has had a significant financial impact on the family.

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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 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)
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).

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• Mrs 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

Education, Health and Care plans

7. 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. The council has a duty to secure the special educational provision specified in Section F

Alternative provision

8. 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.

What happened here

9. Mrs X has been Y’s foster carer for many years. Y has an EHC Plan and was on roll at School 1. Mrs X says problems began to occur at School 1 from October 2021 and the situation got progressively worse. By January 2023 Y was only attending school for two hours a day. Mrs X says School 1 wanted to give notice on the placement but agreed to wait until another school could be identified.
10. In February 2023 School 1 arranged tuition with Company B. Y attended Company B for two hours each morning and School 1 for two hours each afternoon.
11. However, in May 2023 School 1 informed the Council that although the reduced timetable and tuition had worked well initially, there had been issues since Easter. It said Y was self-harming, refusing to access education and absconding from school. School 1 said it was not meeting her educational needs and was unable to keep Y safe at school. They asked for a meeting and annual review to plan for the next steps.
12. Following a meeting later that month School 1 gave notice that Y’s placement would end on the last day of the school year in July 2023. In the meantime they suggested Y continue to attend Company B in the morning and would look at alternative arrangements for the afternoon.
13. Y was subsequently involved in an incident with another pupil and stopped attending School 1 in early June 2023. She then had tuition with Company B for four hours a day. Mrs X says Y felt safe at Company B and her educational levels increased significantly. Mrs X asked that Y continued to have tuition with Company B until a suitable school could be found. She was keen to ensure that arrangements were in place for the start of the school year in September 2023.
14. The Council says it consulted six schools in June 2023. It also made a referral to its preferred tuition service in August 2023 and arranged a place at a play service for September 2023. The Council did not agree to tuition with Company B.
15. Mrs X made a complaint in early September 2023 about the Council’s decision not to allow Y to return to tuition at Company B until a suitable school was found. Company B had confirmed Y could attend full time on a temporary or permanent basis and it would include social and leisure activities in the curriculum. Mrs X said that in the absence of any other provision Y has to spend the day at work or home with Mrs X or with family members. She questioned how this was in Y’s best interests. Mrs X also noted the Council had a duty to secure the provision in Y’s EHC Plan, which it was not currently doing.
16. Mrs X asserted Y needed consistency and that attending Company B, where she felt comfortable and was learning, was the best way forward until a school could be found. Mrs X was also concerned that none of the local schools were suitable for Y. She wanted to ensure that if Y went to a specialist school it was the right one for her.
17. The Council responded and acknowledged Mrs X’s concerns. It said the SEN team was working closely with Children’s social care and the virtual schools team to secure an appropriate placement. As an interim measure the Council had commissioned a package of tuition and play therapy support.
18. Mrs X met with the play service and spoke to the tuition service but was not happy with the level of provision offered or that the tuition would take place at their home. As both the play service and the tuition service had offered sessions at the same time Y could not do both and would only have 10 hours provision a week. There would be no provision in the afternoon. Mrs X did not consider the package was suitable or sufficient to meet Y’s needs.
19. She says Y attended three sessions with the play service where she had gone to the play gym twice and the park once with another child who had very little speech. Mrs X says this did not help Y’s social skills. Y did not want to go and became very frustrated on the mornings she was due to go. Mrs X was also unhappy the tuition service wanted to work with Y at home or in a library. She asserted that neither of these options were suitable.
20. Mrs X also questioned the suitability of the school the Council had asked her to visit. She noted the Council was expected to prioritise schools judged by Ofsted to be ‘good’ or ‘outstanding’ when seeking a place for looked-after children, but the school it had suggested was judged to ‘require improvement’. Mrs X did not feel the school could meet Y’s needs. She again asked the Council to arrange for Y to attend Company B from 9 until 3 each day until a suitable school could be found.
21. The Council responded formally to Mrs X’s complaint in late October 2023. It set out a summary of all of the schools the Council had consulted since Y left School 1, and their responses. Some schools had yet to respond and the Council would follow this up.
22. In relation to Company B, the Council acknowledged that some schools in the area commissioned this provision, but as the Council did not commission it directly it was not assured of the quality of its education. The Council did not agree with putting this provision in place and said its priority was to find a suitable school placement.
23. Mrs X was not satisfied by the Council’s response and has asked the Ombudsman to investigate her concerns. Mrs X was due to go on holiday in mid- November 2023. She says she had arranged for family to care for Y before and after school hours and had repeatedly told the Council it would need to ensure there was provision during school hours. As there was no provision in place by half term, Mrs X arranged for Y to attend Company B for the week before she went away and the two weeks she was on holiday. She told the Council of the arrangements and asked it to reimburse her the cost.
24. Mrs X says that while she was on holiday she received an email from the Council saying it would pay her expenses for the last few months and would now commission Company B. Although the Council has now paid Mrs X’s loss of earnings/ expenses since September 2023 and has agreed to tuition at Company B, Mrs X does not consider this resolves her complaint.
25. In response to my enquiries the Council says it has endeavoured to find an alternative school placement but has not yet been able to find suitable school. It has now reviewed Company B and agreed to commission this provision.
26. It recognises the lack of school placement and delay in agreeing to commission Company B has had an impact on the family and apologises. It also notes there was an offer of education in September 2023. This was tuition commissioned with it preferred provider and a play service so that Y could interact with other children and young people.
27. It notes Mrs X did not consider the provision suitable as the timings and location of the tuition did not work with the family work schedule and for Y. The Council says it attempted to find an alternative location for the tuition and to help engage Y in play therapy, but this was not successful.
28. In relation to Company B, the Council says it was concerned the provision was unregistered and not part of its commissioned services. There were also some concerns that there could be safeguarding concerns. This led to a delay in the Council taking over the commissioning of this provision. The Council had to carry out a face-to-face visit to fulfil the quality assurance and review the safeguarding arrangements.
29. In addition the Council says it has tried to secure a long term suitable educational placement for Y, but this has proved very challenging. It has provided a list of the schools it has consulted which shows the lack of available offers for Y. The Council says it has limited power in making directions around placement for these types of independent school. It will continue to consult for a suitable school placement for Y and will follow up on outstanding consultation responses.
30. The Council acknowledges that despite its attempts to put in place provision Y was without education for a period in the Autumn term 2023.

Analysis

31. It is clear the Council has made significant efforts to find an alternative school placement for Y. Unfortunately it has yet to identify a suitable school that can meet Y’s needs. I consider the failure to identify a suitable school placement is a service failure.
32. 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) 
33. I also consider the failure to provide suitable alternative provision in September and October 2023 is fault. I recognise the Council offered tuition with its preferred provider and a play therapy service, but this was not full-time provision. It is also unclear from the information provided how the Council considered the suitability of this provision for Y. Or how it addressed Mrs X’s concerns that Y would not engage with tuition at her home, which Mrs X would have to be present for, and was unwilling to attend the play sessions.
34. The Council says it initially considered the offer of tuition and play therapy was suitable, however on review, and with further discussion with Mrs Y, it agreed to commission Company B directly. I consider the Council should have taken action to review the provision offered by Company B, the quality of its education and any safeguarding concerns it had sooner. Y now receives five hours tuition each day with Company B.
35. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
36. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 to £2400 per term to acknowledge the impact of that loss. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education the transfer to secondary school or the period preparing for public exams.
37. Given Y’s age, the stage of her education and the education and support she missed, I consider a payment of £600 for the half term she missed would be appropriate.
38. The Council has already reimbursed Mrs X for the lost earnings/ expenses she incurred while Y was at home or at work with her in September and October 2023, and this is to be welcomed. However I consider the Council should also make a symbolic payment to recognise the distress and difficulties Mrs X experienced during this period as a result of the Council’s failings.

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Agreed action

39. The Council has agreed to:
• apologise to Mrs X and Y for the failure to identify a suitable school place and the delays in agreeing alternative educational provision at Company B.
• make a symbolic payment of £600 to Mrs X to recognise Y’s missed education in September and October 2023. Mrs X should use this money for Y’s educational benefit as she sees fit.
• pay Mrs X £300 to acknowledge the distress, frustration and uncertainty she experienced and the time and trouble she was put to as a result of the Council’s failings.
40. The Council should take this action within one month of the final decision on this matter and provide us with evidence it has complied with the above actions.

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Final decision

41. The Council’s failure to identify an alternative school placement and the delay in arranging suitable educational provision amounts to fault. This fault has caused Mrs X and Y an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman