Summary: Miss X complained the Council failed to provide an education for her child. She said this impacted her work and caused her unnecessary distress. She said her child missed out on education and it impacted their mental health and self-esteem. We find service failure which caused injustice. The Council has agreed to apologise and make a payment to remedy the injustice caused.

The complaint

1. Miss X complained the Council failed to provide an education for her child.
2. Miss X said this impacted her work because her child was at home, and caused her unnecessary distress. She said the missed education impacted on her child, and it impacted their mental health and self-esteem.

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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. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
10. 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.

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What I have and have not investigated

11. Miss X complained the Council failed to provide an education for her child, B, for years. As I have said above, we cannot investigate late complaints unless we decide there are good reasons.
12. I have considered Miss X’s reasons for not complaining to us earlier than December 2023. I do not consider there are good reasons for us to exercise our discretion and investigate any further back. Therefore, I have considered the Council’s actions between December 2022 (a year before she complained to us) to September 2023 (when B was due to start a new educational placement).
13. If Miss X wishes to complain about B’s educational provision from September 2023 onwards, she may do so. She can then bring a fresh complaint to us about provision from September 2023 onwards.
14. In March 2023, the Council issued B’s education, health and care (EHC) plan. A parent or young person can appeal the educational provision set out in an EHC plan and the named educational placement, amongst other things, to the SEND Tribunal.
15. As I have set out above, when someone has the right to appeal to the SEND Tribunal we usually cannot investigate unless we consider it would be unreasonable to expect the person to use this right.
16. In this case, the Council did not name an educational placement in B’s March 2023 EHC plan: it said this was to be confirmed. Miss X said she did not appeal the EHC plan because the Council told her it was looking for an educational placement. She said she trusted the Council was doing this.
17. I consider it unreasonable to have expected Miss X to appeal the EHC plan in March 2023. This is because there is nothing in the plan that she could reasonably have appealed. I therefore find there are good reasons to exercise our discretion and investigate the period from March 2023 (when Miss X had appeal rights) to August 2023 (when the Council issued a new EHC plan).

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How I considered this complaint

18. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
19. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

20. A child with special educational needs may have an education, health and care (EHC) plan. This plan sets out the child’s needs and what arrangements should be made to meet them.
21. The council has a duty to make sure the child receives the special educational provision set out in their 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.

What happened

22. Miss X’s child, B, has special educational needs and an education, health and care (EHC) plan. Before December 2022 (the start of the scope of this investigation), B had been in an educational placement which did not work. B then had tutoring. This ultimately broke down for various reasons, including that B’s attendance was sporadic.
23. In March 2023, the Council issued an EHC plan for B. It did not name an educational placement or say what kind of setting it would be. It said this was “to be confirmed”. The EHC plan set out the special educational provision needed to meet B’s needs. It set out how educational staff would work with B, how B learns best, and sensory diet activities including an occupational therapist’s recommendations. The plan said B needed an educational placement that could understand their sensory needs and respond appropriately.
24. From March to July, the Council consulted with educational placements. It found a placement which said it could meet B’s needs and had a place for B starting in September.
25. In July, Miss X complained. The Council acknowledged there were gaps in B’s education. It sympathised with the challenges B faced.
26. In August, the Council issued an EHC plan which named the placement to start in September.
27. Miss X then complained to the Ombudsman.

Analysis

28. Miss X complained the Council failed to provide an education for her child, B.
29. The Council accepts that B received no education between December 2022 and September 2023. I find this is service failure (fault) because I find the Council had made efforts to find a suitable placement for B but they had repeatedly broken down.
30. I find this service failure caused B an injustice in that they missed out on education. I find this also caused Miss X injustice in that it impacted her work and caused unnecessary distress.
31. 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) 
32. In its response to Ombudsman enquiries, the Council accepted that it should have:
• continued to work alongside B and their family to ensure appropriate access to support was available;
• gathered evidence that B was unable to attend an education setting and/or access education;
• worked with B and their family to source an appropriate alternative educational provider;
• ensured that an appropriate transition plan was in place regarding next steps to return to education; and,
• regularly reviewed B’s ability to engage and increased/amended provision accordingly, if provision had been in place.
33. The Council recognised it is at fault and this caused injustice. It said it recognised it should have supported the family better and ensured a holistic approach. The Council said it wants to:
• apologise to Miss X and B;
• make a payment of £300 to Miss X to reflect her time and trouble; and,
• make a payment of £5000 to reflect when B “may have been able to access provision and this was not in place”.
34. I am satisfied that the above remedies are appropriate, proportionate, and in line with our published guidance on remedies.
35. The Council also set out the improvements it has undergone, and continues to undergo, to ensure a similar fault does not occur again. I am satisfied with this so I will not recommend any further service improvements.

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Agreed action

36. As I set out above, the Council has recognised it is at fault and has set out how it intends to remedy the injustice caused. I am satisfied with these remedies.
37. Therefore, within four weeks of this decision, the Council will action these remedies by:
• apologising to Miss X in writing for the injustice caused to B and Miss X by the fault; and,
• making a payment to Miss X of £5300. This is made up of £5000 to remedy the injustice caused to B by the failure to provide their special educational provision, and £300 for the unnecessary distress to Miss X.
38. 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 its apology.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. I find service failure which caused injustice. The Council has agreed to action the remedies it has proposed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman