Summary: Miss X complained the Council failed to provide her child, Y, with the special educational provision set out in his Education, Health and Care Plan. The Council accepted fault for failing to provide Y with the special educational provision. The Council has agreed to apologise and make symbolic payments to Miss X to remedy the injustice caused.

The complaint

1. Miss X complains the Council failed to provide the full educational provision in Y’s Education, Health and Care Plan, when it failed to provide a school place at a specialist setting between September 2022 and January 2024.
2. Miss X says the failure:

• had a significant negative impact on Y’s education and overall quality of life. It caused his social development to regress and caused him distress
• caused her and her husband distress, frustration and affected their ability to work. This put financial strain on the family finances and placed an immense burden on the family dynamics.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. We must also consider whether any fault has had an adverse impact on the person making the complaint. We 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)
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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What I have and have not investigated

9. The law says 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)
10. I have exercised my discretion to investigate Miss X’s complaints from June 2022, when Y and his family first moved into the Council’s area. This is because Miss X has not at any time allowed the matter to rest and because it is appropriate to do so in order to make sense of the complaint.

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How I considered this complaint

11. I read the papers submitted by Miss X and another investigator discussed the complaint with her.
12. I considered the Council’s comments about the complaint and the supporting documents it provided.

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What I found

Special Educational Needs

13. A child or young person with special educational needs (SEN) 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 which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

14. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)
15. 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 (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
16. Parents have a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
17. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Alternative provision

18. 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.
19. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
20. 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))
21. 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)
22. 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’)

What happened

The Council’s transfer of Y’s EHC Plan from the old council

23. In June 2022 Miss X notified the new Council she and her family would moving into its area in July that year. She subsequently told a home tutor commissioned by the Council the move was planned for 1 August 2022.
24. Miss X told the Council there was a current EHC Plan for her son Y, issued by their old council. She said Y was currently attending a special needs school. She asked what she needed to do to enable Y to move to a local special needs school when they moved.
25. On 10 June 2022 the Council contacted the previous council and received Y’s EHC Plan. The EHC Plan was dated 3 November 2021.
26. On 22 September 2022 the Council issued a revised EHC Plan following a review. This was within the 12 month required time period since the last review. The Plan sets out the SEN provision to be delivered by school staff in a school setting, such as exploration of different activities, the development of social skills through play based learning and daily opportunities to complete play activities with peers. Section I describes the type of educational setting as a “Specialist School for children with Severe Learning Difficulties”.
27. On 14 July 2023 the Council issued a revised EHC Plan following a review. The Council decided to do this earlier than required to ensure consulted schools received up to date information on Y’s educational needs. This named a “specialist setting” in Section I. The provision was similar to before.

Searches for a school place to provide the educational provision detailed in Y’s EHC Plan

28. On 16 June 2022, within a few days of receiving Y’s EHC Plan, the Council started trying to find a school place for Y to provide the educational provision required. The Council consulted six maintained (state) schools it thought might be able to provide the special educational provision. All the schools replied and none of them had a space for Y at that time.
29. On 22 September 2022 the Council commenced an internal process to approve consulting independent special schools for a place for Y. This was approved on 7 December 2022.
30. The Council repeatedly conducted rounds of consultations with schools in its search for a school place for Y over the following months. Each round involved consultation with a list of maintained special schools and academies (state schools) or independent schools. The Council contacted more than 20 schools during this period. Many of the schools were contacted more than once to check if a space had become available. The Council consulted lists of schools on the following dates:

• 16 June 2022 (state schools)
• 7 December 2022 (independent schools)
• 12 December 2022 (independent schools)
• 5 January 2023 (independent schools)
• 17 January 2023 (state schools)
• 20 March 2023 (independent schools)
• 21 March 2023 (state schools)
• 11 April 2023 (independent schools)
• 3 May 2023 (independent schools)
• 30 May 2023 (independent schools)
• 29 June 2023 (independent schools)
• 10 July 2023 (state schools)
• 13 July 2023 (independent schools)
• 18 July 2023 (independent schools)
• 19 September 2023 (independent schools)
• 2 October 2023 (state schools)
• 11 October 2023 (independent schools)

31. All the consultations in this period, apart from the final one, were unsuccessful. This was because the schools were at capacity or felt they could not meet Y’s needs.
32. On 17 November 2023 one of the independent schools contacted the Council about offering a place to Y subject to an assessment visit. Miss X and Y visited the school. They liked the school and Miss X told the Council she would like Y to attend. In December 2023 the school made a placement offer. On 3 January 2024, following correspondence between the school and Council about costs and contractual information, the Council approved the placement.
33. On 23 January 2024, Y started attending the independent school. The Council updated Y’s EHC Plan on 5 February 2024. Y’s new school was named in his new EHC Plan.

Provision of interim home tutoring and consideration of alternative provision

34. On 23 June 2022, shortly after the first attempt to find a school place for Y, the Council started a process to secure a tutor to provide interim home tutoring as Y was unable to access a school. It was agreed Y would receive five hours tutoring per week in daily one hour sessions. This would build up to 10 hours per week in two hour sessions at some point in the future.
35. On 9 September 2022 a home tutor started providing five hours of education per week. This was described on the Council’s records as “SEND Interim Home Tuition”.
36. Y received one hour of home tutoring per day for the duration of the academic year 2022 to 2023.
37. In June 2023, during a review of Y’s EHC Plan, Miss X asked the Council about the possibility of securing additional alternative provision for Y. She asked if the Council could provide him some out-of-school activities to help with his personal social development whilst he awaited a school place. The Council issued an amended final EHC Plan on 14 July 2023. The educational provision in section F of the plan remained focused on provision in a school environment. The EHC Plan does not include specific reference to provision of alternative out-of-school activities and none were provided. At this point, Miss X had a right of appeal to the SEND Tribunal about the SEN provision.
38. On 1 September 2023 Y’s home tuition restarted for the new academic year and increased from one hour a day to one and a half hours per day. It increased to two hours a day from 13 November 2023.
39. The home tutoring stopped when Y started at his new school in January 2024.

Miss X’s complaints to the Council

40. From July 2022 Miss X regularly contacted the Council about Y’s need for a school place and asked for updates. She raised concerns about the time it was taking to find a school place for Y and described negative impacts on Y and the rest of the family.
41. On 21 March 2023 she made a formal complaint to the Council about Y not having a school place. She said the home tutor was delivering one hour of teaching per day and doing a fantastic job. However, she explained Y was not receiving the educational provision and placement detailed in his EHC Plan. He had missed two school terms. He was having no access to the things he needed for his emotional and social development. Miss X said Y was having no speech and language therapy, however this was not recorded as a provision in Y’s EHC Plan at the time.
42. On 4 April 2023 the Council responded to Miss X’s complaint in a letter. The Council explained:

• its attempts to find Y a place at a state special school in June 2022, January 2023 and March 2023. Fifteen schools had been consulted. None offered a place.
• its attempts to find Y a place at independent special needs schools. It described the internal approval process required to approve searches of independent schools. Schools were contacted in October 2022, December 2022 and January 2023. One school offered a conditional place subject to a taster day which was subsequently withdrawn. The Council said that withdrawal was not the expected outcome because the school had seen Y’s EHC Plan and had time to consider how it would be able to meet his needs.
• it was aware took a long time to facilitate the taster day. It said this was due to case worker capacity.
• it would continue to consult state and independent special needs schools to try to find a place for Y.
• it was aware the one hour of home tuition per day is not meeting all of Y’s needs; noting social and play skills with peers. It acknowledged Miss X’s frustration that the arrangement could not be long term.
• Y could be referred to the NHS Speech and Language Therapy Service for an initial assessment of his current needs. This was to provide information for Y’s EHC Plan at its next review. (Y was subsequently referred to the NHS service in June 2023).
• it did not find any evidence that it had failed to deliver what was required of it.
• it could improve its approach to responding to placement offers at independent schools where the offer depends on a taster day. It said it would take action to better explain that a placement is not guaranteed in those circumstances. It also said it would ensure that the visits were arranged in a timely manner.

43. On 5 October 2023 Miss X complained to the Council again. She described her deep concerns and frustration about the delay for a school placement for Y. They had been waiting for a placement for nearly two years. She said she appreciated the home tutoring the Council had provided. However, she explained she still needed to supervise Y’s education which prevented her from seeking employment. This put a considerable financial strain on the family. Miss X also explained the situation was having negative effects on Y’s social development and quality of life. She said it was crucial for Y to receive education in an environment that enabled him to interact with his peers.
44. On 23 October 2023 the Council responded to Miss X’s complaint. The Council’s response:

• summarised its attempts to secure a school place for Y and explained why it was unsuccessful.
• noted the interim home tuition it was providing for Y.
• said it had been unable to find any evidence it did not deliver what was required.
• acknowledged Y had been out of formal education setting for over a year, putting additional pressure on the family and limiting Y’s education.

Analysis

Transfer and reviews of the EHC Plan

45. I found no evidence the Council was at fault in the way it transferred and reviewed Y’s EHC Plan.
46. The Council transferred the EHC Plan from the old council promptly in June 2022 when Miss X told it she and her family were moving to its area. The Council also reviewed the EHC Plan and issued a new version within 12 months of the last review date. It continued to review Y’s EHC Plan as required.

Failing to secure the educational provision in Y’s EHC Plan

47. Between June 2022 and October 2023 the Council carried out 17 rounds of consultations with state schools and independent schools. It reviewed Y’s EHC Plan when it thought doing so might help to secure a school place for Y. This indicates a consistent effort of the Council to deliver the educational provision Y was entitled to. However, it was unable to find a school placement for Y. This is service failure.
48. In mitigation, the Council provided interim home tutoring to Y, but he missed out on the SEN provision, which needed to be delivered in a school setting.
49. I find the Council was at fault for failing to secure the provision in Y’s EHC Plan when it was unable to find a school placement for him between 6 September 2021 and 23 January 2024. This fault caused injustice to Y and Miss X.
50. Y missed four and a half terms of the SEN provision detailed in Section F of his EHC Plan. During this period he had none of the school and peer related provision his EHC Plan said he was entitled to. This had a direct negative impact on his development. This is an injustice.
51. Our Guidance on Remedies states that where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact on the child. I recommend the Council should pay Miss X £1,200 for each term missed, to be used for Y's educational benefit.
52. In reaching this view I have taken into account that Y was receiving some education throughout. But I have also considered that he has special educational needs and that there is potentially time for additional provision now to remedy some or all of the loss. The Council has agreed to my recommendation.

Distress and frustration experienced by Miss X

53. The Council’s failure to secure a school place for Y had an understandable negative impact on Miss X and caused her distress. Emails from Miss X to the Council throughout the period demonstrate she was very upset about the negative impacts on Y.
54. Miss X also had to make significant changes to her own daily life due to Y being at home throughout the period. She told us her and her husband’s jobs had been affected by the need to supervise and care for Y. This had a financial impact on the family.
55. Our Guidance on Remedies states we will normally recommend a remedy payment for distress of up to £500. In this case I consider the distress caused to Miss X is at the top of the scale and amounts to £500, and I recommend the Council apologises to Miss X. The Council has agreed to my recommendations.

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Agreed action

56. Within one month of my final decision, the Council has agreed to:

• provide a written apology to Miss X for the delay in providing Y the special educational provision in his EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
• pay Miss X £5,400 for the benefit of Y’s education and to recognise the lost special educational provision because of the delay in securing him a school place in line with his EHC Plan.
• pay Miss X £500 to recognise the distress and frustration she experienced.

57. The Council will provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation and find the Council was at fault. The Council has agreed to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman