Summary: Miss X complains about the Council’s failure to tell her there was no place available for her child at their preferred school until the day before they were due to start there and a lack of alternative education provision. The Council has agreed to take further action to remedy the injustice caused to Miss X and her child by its poor communication. There is no evidence of fault by the Council in its handling of alternative education provision for Miss X’s child.

The complaint

1. Miss X complains about the Council’s handling of her child, Child Y’s special education needs (SEN) since January 2023. She complains the Council failed to inform her the school placement it had identified for her child was not available until the day before Child Y was due to start there. She alleges the Council repeatedly lied to her or ignored her contact and concerns about this issue and identifying an alternative suitable school placement for her child. Child Y missed out on two months of education because of the Council’s errors and is still currently not receiving the provision set out in their Education, Health and Care (EHC) plan. This has caused significant distress and uncertainty for Miss X and Child Y. Miss X would like the Council to admit its errors and to do more to ensure Child Y receives the education provision in their EHC plan.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 have not investigated any ongoing matters surrounding Child Y’s Education, Health and Care (EHC) plan. The law prevents us from investigating these issues because Miss X has made an appeal to the SEND Tribunal about the same matters.

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How I considered this complaint

9. I have spoken to Miss X and considered the information she has provided in support of her concerns.
10. I have considered the information the Council has provided in response to my enquiries.
11. Miss 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

Relevant law and guidance

Education, Health and Care (EHC) Plans

12. A child 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.
13. The EHC plan is set out in sections. Section F specifies the special educational provision needed by the child and Section I specifies the name and/or type of educational placement.
14. We cannot direct changes to the sections about their education or the name of the educational placement. Only the SEND Tribunal or the Council can do this.
15. 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)

Alternative education

16. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can use various legal powers where it considers a child’s non-attendance to be unauthorised, including prosecution or issuing a fine.
17. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) We refer to this as section 19 or alternative education provision.
18. 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 the educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.

What happened

Background

20. Child Y has difficulties with verbal and executive functioning skills. They also present with Attention and Hyperactivity difficulties, low resilience and an inability to feel secure in relationships with teachers and peers. Since May 2022, Child Y stopped attending mainstream school at School C and had been attending an Alternative Provision placement at School B3.

School placement

21. In Spring 2023, the Council agreed to complete an Education, Health and Care Needs Assessment (EHCNA) for Child Y. As part of this process, the Council sought Miss X’s views on a preferred placement for Child Y. Miss X requested a placement at School B4, which is part of the same school group as School B3.
22. Miss X started to prepare Child Y for transition from School B3 to School B4. In early June 2023, Child Y attended an induction at School B4. School B4 also invited Child Y to select their optional GCSE subjects and provided details of their form tutor.
23. At the end of June 2023, School B4 emailed the Council to explain it had no available space at the school site for Child Y but it would provide a placement until 15 September 2023. Following this, School B4 said it could only provide tuition and alternative provision to Child Y off site until a suitable permanent SEN placement was identified.
24. The Council issued Child Y’s draft EHC plan to Miss X in late July 2023. Section I of the plan was left blank and Miss X was invited to name her preferred school placement for Child Y. Miss X confirmed she wanted School B4 named in Child Y’s EHC plan.
25. On 4 August 2023, the Council met with Miss X online to discuss Child Y’s placement. The Council says this is when it informed Miss X there was no place for Child Y at School B4. There are no contemporaneous notes or records of the meeting to show what was discussed. Miss X says the Council did not tell her at this meeting that there was no place for Child Y at School B4.
26. A few weeks later, Miss X asked the Council’s School Transport Team to provide transport for Child Y to School B4. The School Transport Team confirmed the arrangements it had made for Child Y’s travel to School B4 from the start of term on 5 September 2023.
27. The Council issued Child Y’s final EHC plan to Miss X on 23 August 2023. Section I of the EHC plan stated the type of placement Child Y required. The covering letter that accompanied the EHC plan named School B4 as the school setting.
28. On 4 September 2023, the Head of School C informed Miss X there was no place available at School B4 for Child Y. Miss X became very distressed and made several unsuccessful attempts over the next few days to contact the Council and senior staff at School B4. Miss X says this was the first time she became aware Child Y did not have a place at School B4.
29. Miss X complained to the Council about the way in which it had dealt with Child Y’s case. The Council’s final stage two complaint response to Miss X, in late November 2023, upheld her complaint about poor communication. The Council apologised for the distress caused to Miss X and Child Y. It also explained the action it had taken to learn from its handling of Child Y’s case.

Was there fault causing injustice?

30. Based on the evidence I have seen and a balance of probabilities, it is more likely than not that Miss X was not informed there was no place for Child Y at School B4 until 4 September 2023.
31. Most of the Council’s records and correspondence with Miss X up to this point suggests School B4 was the placement being offered to Child Y. The Council’s poor communication in respect of this specific point was fault which has caused Miss X and Child Y significant distress and uncertainty.
32. Although the Council has since apologised to Miss X for its poor communication, I am not satisfied this goes far enough to remedy the injustice caused to Miss X and Child Y. I have recommended further action the Council should take to appropriately address this at the end of this statement.

Alternative education provision

33. Child Y had a placement with School B4 until 15 September 2023. Following this, Miss X says the Council did not provide suitable alternative education provision to Child Y until the end of October 2023.
34. From 11 September 2023 and again in early October 2023, the Council had email contact with Miss X in which it set out the alternative education provision options it proposed for Child Y. Miss X declined the options the Council proposed.
35. On 9 October 2023, Miss X met with the Head of Tuition at School B4 who set out in a follow up email the proposed timetable of alternative education provision for Child Y. They also explained adjustments could be made to best suit Child Y’s needs. Miss X continued to decline the offers made by the Council and School B4 until the end of October 2023.

Was there fault causing injustice?

36. There is no doubt of the distress caused to Child Y and Miss X by the Council’s earlier poor communication about Child Y’s school placement. Miss X says this caused such significant trauma and distress to Child Y, that they were unable to face the thought of attending School B4.
37. It is however clear the Council made consistent efforts to find some way to re-engage Child Y in education. Throughout September and October 2023, the Council and School B4 provided a range of options to Miss X of how it could support Child X while it continued to seek a suitable school placement to name in their EHC plan.
38. Miss X’s strong disagreement with the proposals and her initial refusal to engage with the offers the Council made is not evidence of fault.

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Agreed action

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

• make an apology to Child Y for its poor communication about their school placement. The apology to Child Y should only be provided if Miss X feels this is appropriate and in a format that best suits Child Y’s needs; and,
• make a payment of £200 each to Miss X and Child Y for the distress and uncertainty caused by its poor communication about the school placement.

40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have found fault with the Council. This fault has caused Miss X and Child Y injustice and the Council has agreed to take further action to appropriately remedy that injustice. I have therefore completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman