Summary: Ms X complained the Council failed to provide formal education for her child until April 2023. Ms X complained the education provided since April 2023 has not been suitable full-time education. We found fault with the education provided by the Council from January 2023 to the end of the 2023/2024 academic year. We also found fault with the way in which the Council handled Ms X’s complaint. The Council agreed to apologise to Ms X and pay her £2,000 for her child’s missed education. The Council also agreed to pay Ms X £150 for the frustration and inconvenience caused through its handling of her complaint.

The complaint

1. Ms X complained the Council failed to provide formal education for her child until April 2023. Mrs X also complained the Council failed to provide suitable full-time education since April 2023.
2. Ms X complained the Council failed to issue her child’s Education, Health and Care Plan within the statutory timescales.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(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. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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)
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. I have not investigated Ms X’s complaint about delays in production of her child’s Education, Health and Care Plan. The Council produced the Final Education, Health and Care Plan for Ms X’s child on 6 April 2023 and shared this with Ms X on 13 April 2024. All but two days of any delays in producing Ms X’s child’s Education, Health and Care Plan was over 12 months from the date Ms X brought her complaint to the Local Government and Social Care Ombudsman (the Ombudsman) on 11 April 2024.
12. The bulk of any delays in production of the Education, Health and Care Plan took place before 11 April 2023. The Ombudsman cannot investigate a complaint about matters a person takes more than 12 months to complain to the Ombudsman about. Ms X knew about the delays in production of the Education, Health and Care Plan but did not bring this to the attention of the Ombudsman sooner. The two days of delays within the latest 12 months does not present a significant personal injustice to Ms X. There is no good reason to investigate this part of Ms X’s complaint now.
13. I have also not investigated the failure of the Council to put in place any Special Educational Needs (SEN) provision for Y before 6 April 2023. This is because Ms X’s child did not have a final Education, Health and Care Plan before 6 April 2023. Since Ms X’s child did not have a Final Education, Health and Care Plan, the Council had no duty to provide any specific SEN provision before its completion. Ms X’s child had a Statement of SEN in their previous council area in Wales. However, an English council has no duty to provide any of the provisions detailed within a Statement of SEN when a child moves into their area.
14. I have investigated Ms X’s child’s access to education from September 2022 to the end of the academic year 2022/2023. While this goes beyond the 12-month time period detailed in paragraphs 11 and 12, these complaint issues were ongoing after 11 April 2023 so fell within 12 months of Ms X’s complaint to the Ombudsman. This is good reason to exercise our discretion to investigate matters further back than 12 months.
15. I have not investigated parts of Y’s access to education or provision of the EHC Plan provisions from 1 August 2023 to the date of this decision. I have explained my rationale for this in further detail in paragraphs 89 to 93.

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How I considered this complaint

16. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
17. Both Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

18. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
19. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
20. 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.
21. 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))
22. 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 educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
23. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
24. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

25. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled
26. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
27. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council complaints procedure

28. The Council uses a two-stage complaints procedure. At Stage 1 the Council says it will respond to a person’s complaint within 10 working days. However, in complex matters the Council says it will take a maximum of 20 working days but must tell a person at the outset.
29. If a person requests consideration of their complaint at Stage 2, the Council says it will provide a response within 40 working days of request.

What happened

30. In May 2022, Ms X moved into the Council area from Wales with her child, who I shall refer to as Y. In Wales, Y had an Statement of SEN.
31. In September 2022, Y started to attend an Independent Specialist school.
32. On 21 September 2022, the Council issued a Draft EHC Plan for Y.
33. Ms X complained to her MP on 20 October 2022. Ms X said:
• Y’s school was not putting in place provision detailed in Section F of the Draft EHC Plan.
• She had agreed with the Council and school for the school to educate Y at home in the morning and in school in the afternoon. But, the school was sending home a Teaching Assistant to provide education to Y rather than a fully qualified teacher.
• She did not consider Y’s school was suitable provision for Y as it cannot provide full-time provision and does not understand Y’s medical needs.
34. On 25 October 2022, Ms X’s MP passed on the complaint to the Council.
35. On 2 November 2022, Ms X told the Council and Y’s school that she would not send Y back to school after an incident with allowing Y’s blood sugar levels to drop. Ms X said she did not consider Y’s school could manage Y’s medical needs.
36. In November 2022, Ms X discussed Y’s EHC Plan and access to education with the Council. The Council upheld its thinking that Y’s school was suitable provision for Y but made enquiries of other schools for availability for Y in case Y did not return.
37. On 5 December 2022, the Council discussed Y’s education with Y’s school. Y’s school said Y had disengaged from school entirely from 17 November 2022 but told the Council it would continue to try to engage Y in education. On the same date, Y’s school served a notice on Y’s placement at the school. The school said it would continue to make education available to Y until 4 January 2023 but considered it would no longer be suitable for Y to remain enrolled at the school after this date.
38. The Council discussed Y’s access to education with Ms X on 6 December 2022. The Council said it would look to provide a package of educational provision for Y outside school. The Council said this would be 15 hours each week first to allow Y time to acclimatise and build successful relationships before providing more provision.
39. The Council agreed a 15-hour a week package of education for Y with Provider 1. Provider 1 needed to attend a training session on sensory support before working with Y with this arranged for 17 January 2023.
40. On 18 December 2022, the school confirmed with the Council it had put in notice to remove Y from enrolment from 4 January 2023.
41. In January 2023, the Council contacted a second educational provider, Provider 2, to provide education for Y once Y had acclimatised to the first 15 hours each week.
42. On 1 February 2023, Y started to receive 15 hours education from Provider 1 each week.
43. On 29 March 2023, Provider 2 started to provide 10 hours of education each week for Y alongside the 15 hours from Provider 1.
44. On 6 April 2023, the Council produced a Final EHC Plan for Y. The Council sent the Final EHC Plan to Ms X on 13 April 2023. The Final EHC Plan detailed over 20 pages of educational provision Y would need under Section F. The main educational provision the Council needed to source detailed in the Final EHC Plan included:
• 1:1 support throughout the school-day for mobilising and help with fine motor skills.
• Full-time support with medical needs from appropriately trained member of staff.
• Consistent staff members trained in multi-sensory impairment.
• 1:1 education for the entire school-day through a “fully-qualified member of staff” consisting of 15 hours tuition on core subjects and 15 hours of educational support across the home and community.
• Y’s education overseen by a qualified teacher.
• Access to regular activities such as swimming, walking or group work that encourages movement.
• When Y is too unwell to attend school a fully qualified member of staff to deliver Y’s education either at home or hospital on a 1:1 basis either face to face or online (on advice from healthcare professionals).
• Provision of educational resources such as an Ipad Pro, Books through RNIB Bookstore, Specialist VI PE Equipment, exercise books, maths equipment and resources for practical learning.
45. On 17 May 2023, Ms X made a formal complaint to the Council. Ms X said:
• The Council was not providing a trained member of staff to meet Y’s medical needs as detailed in Section F of the Final EHC Plan.
• Healthcare staff were not suitably trained for Y’s needs.
• Y’s tutors could not take Y outside for walks or teach life skills because of the lack of medical training and support.
46. Ms X contacted the Council in May 2023 to ask if it could find a suitable place that Y could receive some EOTAS outside the home setting so she could return to work. At present, Y being at home for the full education meant that Ms X needed to use more of her time caring for him due to the lack of full support for Y’s needs.
47. On 20 June 2023, the Council started to provide Y with 1:1 medical support for 30 hours each week in line with Y’s EHC Plan.
48. On 23 June 2023, the Council issued a Stage 1 complaint response to Ms X. The Council said:
• It had arranged for an adult to be present throughout the day to support Y’s medical needs.
• Healthcare staff will be undertaking extra training to ensure they know how to meet Y’s needs.
• It apologised for the delay in sourcing healthcare support staff but two full-time staff would be supporting Y during the day soon.
• It understood life skills had been provided by Y’s tutors and they have taken Y out for walks.
49. On 20 July 2023, the Council confirmed it had sourced a place at Little Miracles centre from September 2023 so Y could receive some education outside the home environment.
50. Following discussions with Ms X, the Council re-issued Y’s Final EHC Plan on 1 August 2023. The main changes to the Final EHC Plan included:
• Naming Education Otherwise Than At School (EOTAS) in Section I.
• Removal of reference to finding a school placement for Y and instead including a 30-hour each week education package designed, overseen, deliver and reviewed by a qualified teacher outside the home.
• Confirmation that 30-hour EOTAS package would include direct academic teaching on national curriculum, community-based activities, social group activities and weekly sports sessions (such as swimming).
• Confirmation that Y should receive the same provisions when in hospital or at home when too unwell to attend placement, these should be face-to-face or virtual based on advice of medical professionals.
• Continuation of full-time care support for Y’s medical needs.
51. Ms X appealed the Final EHC Plan issued on 1 August 2023 to the SEND Tribunal on 15 August 2023. Ms X appealed Sections B and F of the 1 August 2023 EHC Plan including:
• The number of hours of education Y should receive each week.
• What kind of education/curriculum Y should receive during their educational hours.
• The qualifications of the teaching staff providing Y’s provision.
• Additional support staff for Y including a SENCo and Teaching Assistant.
• Provision of Speech and Language Therapy, Therapeutic support, MindJam, Occupational Therapy and Physiotherapy.
• Access to group learning and how this should be provided.
52. Provider 2 provided Y with 6 hours of education each day, split across two tutors, from the start of September 2023. Provider 1 stopped providing any provision.
53. On 25 September 2023, the Council’s Sensory Support Services completed an audit of Little Miracles centre for Y’s education out of the home. Little Miracles passed the audit with some recommendations.
54. Ms X and the Council entered discussions about the suitability of Little Miracles for Y. Ms X raised concerns about the safety of Little Miracles. Ms X’s concerns included lighting in the toilets, clutter on the floors presenting a trip hazard to Y, storage of Y’s insulin and compliance with recommendations by the sensory team.
55. On 3 October 2023, Y attended Little Miracles to begin the transition process.
56. On 4 October 2023, Ms X reiterated her dissatisfaction with the safety of Little Miracles for Y and said Y would not attend until the issues were resolved.
57. The Council sought input from various professionals about Ms X’s concerns. A Qualified Teacher of Vision Improvement said they had visited Little Miracles and confirmed any trip hazards had been removed. The Qualified Teacher of Vision Improvement also said the space was safe for Y and the lighting in the toilets was suitable. They advised they did not see any reason Y could not start fully at Little Miracles. The Council’s diabetes team also confirmed storage arrangements for Y’s insulin were suitable.
58. Discussions continued between Ms X and the Council about the safety of Little Miracles. The Council ensured all measures from the sensory team recommendations were put in place, took advice from medical professionals about storage of insulin and sought input from the Occupational Therapist. The Council proposed for Y’s attendance to restart at Little Miracles from 13 November 2023.
59. On 1 November 2023, Ms X sought escalation of her complaint with the Council.
60. On 7 November 2023, Ms X reiterated concern about Little Miracles safety for Y. Ms X said she visited Little Miracles and was not satisfied with how it implemented the recommendations from the sensory team audit. Ms X also expressed concerns about the storage of insulin. The Council responded to advise it had taken advice directly from health professionals and the specialist teaching team on this matter in deciding Little Miracles was safe for Y.
61. The Council started to arrange attendance for Y at another setting for 13 December 2023 to access social group work. Ms X told the Council Y was going into hospital so would need to postpone these arrangements.
62. Since December 2023, Y has spent most of his academic year in hospital receiving education through the hospital school. The Council agreed with Ms X to put transition to Little Miracles and the other social group setting on hold because of Y’s health.
63. On 15 January 2024, the Council provided Ms X with a “supplementary” complaint response. The Council said:
• From May 2023, it had provided medically trained staff to work alongside Y’s tutors to meet Y’s medical needs.
• It accepted Provider 1 was not providing the full 15 hours a week provision they should have been and was repeatedly absent because of illness. The Council offered £400 for this missed provision.
• It considered Y’s school was a suitable setting for Y in September 2022. And, it was not defined whether a child with SEN should, or should not, be placed at an Ofsted school rated “inadequate”.
• It understood Ms X wanted education for Y out of the home so Ms X could return to work. The Council said it had found a suitable placement at Little Miracles for Y to receive this education.
64. Ms X requested consideration of her complaint further. The Council provided its Stage 2 complaint response on 29 February 2024. The Council said there was no merits to completing a further investigation and it was satisfied with its previous response. The Council reiterated its offer of £400 for lost education. The Council also offer £150 as gesture of goodwill for its complaint handling delays.
65. On 1 July 2024, the tribunal provided the outcome of its consideration of Ms X’s appeal. The Council has appealed the Tribunal’s decision to the Upper Tier Tribunal which remains outstanding to the date of this decision.

Analysis

Provision of education from September 2022 to 5 April 2023

66. When Ms X and Y moved into the Council area, the Council arranged for Y to attend an Independent Specialist school. The Council provided Y with a place at a school it considered could meet Y’s needs. The Council acted correctly to make a school place available to Y and made a suitable decision to consider that this school placement was suitable for Y. None of Ms X, the school or the Council could have known the school was not suitable for Y before Y started at the school.
67. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the actions of the school from September 2022 to 25 October 2022 in providing education for Y.
68. The Council was first made aware of Ms X’s concerns that the school could not provide suitable education for Y on 25 October 2022, when Ms X’s MP passed over Ms X’s letter of complaint.
69. The Council must consider a child’s access to education on an individual basis. When the Council received Ms X’s complaint on 25 October 2022, Y was still attending school, although on the agreed on part-time basis. The Council considered Y’s access to education and decided Y could access education in the agreed-on manner through the school. The Council considered Y’s school was suitable and accessible education. This was a decision the Council was entitled to make, and cannot find fault.
70. The situation with Y’s access to education changed on 5 December 2022. On this date, Y school confirmed with the Council Y had not accessed education since 17 November 2022 and sent notification that it would stop providing education for Y from 4 January 2023.
71. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education.
72. The Council took the correct action in December 2022 to contact an alternative provision of education provider to provide education for Y. However, the Council delayed in starting this alternative provision of education. A council’s section 19 duty arises when it becomes aware a child would be absent from school for more than 15 days, from the sixth day of the child’s absence. It would have been clear to the Council on 5 December 2022 that Y would not have access to education from 4 January 2023. It would also have been clear that Y would likely have been absent for 26 school-days by 4 January 2023, given Y’s lack of engagement since 17 November 2022.
73. Given the lack of education for Y leading up to 4 January 2023, the Council should have arranged for Y’s education through Provider 1 to start from 4 January 2023. Y’s education did not start until four weeks later, this was fault. While there were mitigating factors in Y receiving education sooner, such as Provider 1 needing to undergo training, this does not remove the fault by the Council.
74. From 1 February 2023 to 29 March 2023, Y should have received 15 hours of education each week from Provider 1, not considering any missed sessions through the tutor’s absence. Ms X has complained the education provided was not full-time. A council does not have to provide full-time education for a child through alternative provision of education. A council must consider a child’s individual needs and tailor any alternative provision of education to meet those needs. The Council has detailed its thinking in December 2022 that it considered 15 hours of education for Y was suitable at first. This was to allow Y time to acclimatise and build successful relationships with the aim to provide further education once Y had settled into this. The Council made a decision it was entitled to make and the Ombudsman would not find fault with this.
75. From 29 March 2023 to 5 April 2023, the Council increased Y’s access to education by a further 10 hours. The Council considered this increased access to education suitable for Y’s needs. As detailed in paragraph 74 the Council has made a rationalised decision about how much education to provide Y and I do not find fault.
76. I have addressed Y’s missed education through tutor’s absences from 1 February 2023 to 6 April 2023 in paragraph 80.

Provision of education and EHC Plan provision from 6 April 2023 to 21 July 2023

77. From 6 April 2023, the Council had a continued responsibility to provide education for Y under its alternative provision of education Section 19 duty. The Council also had a duty to provide Y with the full Section F provision detailed in the Final EHC Plan of 6 April 2023.
78. There is a direct cross-over between the Council’s Section 19 duty and Y’s EHC Plan provision. Y’s EHC Plan detailed that Y should receive 1:1 education for the entire school-day by a “fully qualified members of staff” and overseen by a qualified teacher. This should total 30 hours of education each week.
79. From 6 April 2023, the Council continued to provide 25 hours of education each week to Y, excluding missed provision through staff absences. This meant Y missed 5 hours of education each week Y was entitled to, in line with the EHC Plan, from 6 April 2023 to the end of the academic year. This loss of 65 hours of educational provision was fault.
80. From 1 February 2023 to the end of the academic, Y also missed a total of 88 hours of educational provision through tutor absences and illness from Provider 1. This lost educational provision is fault by the Council. In total, Y missed 153 hours of educational provision Y should have received from 1 February 2023 to the end of the academic year. This equates to nearly 5 weeks of missed education.
81. Ms X has questioned the quality of the education provided, namely the tutors were not fully qualified teachers. A council does not have to employ fully-qualified teachers as tutors for a child through alternative provision of education. And, Y’s EHC Plan detailed that “fully qualified members of staff” provided Y’s education. The tutors hired by the Council were “fully qualified” and Y’s educational package was overseen by a full-qualified teacher. I do not find fault with who the Council hired to provide education for Y or how it fulfilled this EHC Plan provision.
82. The Council ensured Y had access to the full educational equipment and resources detailed in Y’s EHC Plan through the alternative provision of education providers and provided Y with an IPad on 29 March 2023. The Council has fulfilled this part of the EHC Plan and I do not find fault.
83. However, the Council did not provide other EHC Plan provisions from 6 April 2023 to the end of the academic year. The Council has accepted that it failed to provide access to social group work activities for Y. This was fault.
84. However, while the Council did not provide Y with access the weekly sports sessions it kept this matter under review due to concerns about Y’s health and mobility. The Council has shown it was prepared for Y to access exercise programmes including yoga and walking once it felt Y’s health was at a suitable level for this. I cannot find fault with the Council for its decision not to provide an EHC Plan provision that it considered could put Y at risk.
85. The Council has also accepted it failed to provide Y with 1:1 support for their medical needs until 20 June 2023. This was fault. This meant Y went from 17 April 2023, the start of the term following the 6 April 2023 EHC Plan, until 20 June 2023 without the 1:1 medical support detailed in their EHC Plan. This totalled 8 school weeks without this support. From 20 June 2023, the Council put in place suitable medical support in line with Y’s EHC Plan.
86. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
87. As detailed in paragraphs 73 and 80, from 4 January 2023 to the end of the academic year, Y missed 9 weeks of education because of the fault of the Council. Y also missed 8 weeks of 1:1 medical support and did not receive any social group activities as detailed in their EHC Plan for a full term. Given Y’s particular medical needs, the lack of medical support would have caused a direct impact on Y’s access to education from 17 April 2023 until 20 June 2023. While Y would still have received education during this time, this would have impacted on Y’s ability to receive this education.
88. Considering the full loss of direct education and missed provisions from 4 January 2023 to the end of the academic year, I consider the Council should pay Ms X £2,000 for Y’s lost educational provision. The Council should also apologise for this lost educational provision.

Provision of education and EHC Plan provision from 1 August 2023 to end of academic year 2023/2024

89. The Council produced an amended final EHC Plan for Y on 1 August 2023. Ms X appealed this amended final EHC Plan to the SEND Tribunal on 15 August 2023.
90. When a person appeals to the SEND Tribunal, this places a jurisdictional bar on the Ombudsman investigating the same matter.
91. By law, the Ombudsman cannot consider matters which have been subject to appeal, or are inextricably related to them. This restriction starts from the point at which a council issues the Final EHC Plan and ends at the conclusion of the appeal process.
92. Despite the appeal, the Council was still under a duty to provide the provision detailed in Section F. In some circumstances the Ombudsman can investigate the Council’s failure to put in place Section F provision despite an appeal. The Ombudsman can do this if the matters of the appeal are separable to the failure of the Council to put the provision already named in the EHC Plan in place.
93. In this circumstance, the Ombudsman cannot investigate whether the Council has put in place certain aspects of Y’s EHC Plan provision because of the appeal to the SEND Tribunal. Notably, we cannot investigate provision of Y’s general education through the tutors. This is because Ms X has not only appealed the amount of provision, but who should be providing the provision and how well trained the person providing the provision is. We cannot separate out this appeal from the actual provision meaning the Ombudsman cannot investigate this because of the ongoing appeal to the Tribunal. There is no discretion available to the Ombudsman to bring this matter into jurisdiction.
94. We can investigate whether the Council provided the 1:1 medical provision, provision of education in hospital for Y and how the Council sought to provided education outside the home. There is enough distinction from the appeal to the tribunal to enable the Ombudsman to consider this.
95. As detailed in paragraph 47, the Council started providing 1:1 medical provision since 20 June 2023. The Council has continued to provide this 1:1 medical provision when Y received tutoring outside the hospital.
96. The Council has provided evidence of Y’s attendance records at the hospital school. These attendance records show that Y repeatedly received education while in hospital through the hospital school. The Council has showed it put measures in place to continue to provide Y with education during Y’s time in hospital and I do not find fault. The exact amount of provision by the hospital school would be determined by medical professionals at the hospital school and is outside the jurisdiction of the Ombudsman to investigate.
97. The Council arranged for Y to attend Little Miracles to receive education outside the home. The Council chose Little Miracles as it considered this a suitable place, which Y had already accessed with Ms X in the past. Little Miracles also offered weekly social skills groups which the Council considered Y could access to fulfil the social elements of Y’s EHC Plan.
98. While the Council planned for Y to attend Little Miracles, Ms X expressed concerns about the suitability of this placement. The Council has shown it took on-board professional opinion in deciding that Little Miracles was a suitable placement for Y. This included opinions from SEN teachers specialising in visual impairment and health professionals. The Council also completed an audit of Little Miracles which signed it off as a suitable placement for Y. It is not the place of the Ombudsman to question professional opinion or supplant our thinking over that of professionals in their relevant filed.
99. I am satisfied the Council took suitable steps to find an appropriate placement for Y and took on-board opinion from suitable professionals in their relevant fields to ensure this placement was suitable for Y. I do not find fault with the Council for its approach to trying to transition Y to an educational placement outside the home.

Complaint handling

100. Ms X made a formal Stage 1 complaint on 17 May 2023 with the Council providing its response on 23 June 2023. This meant the Council took 16 working days outside its complaint timescales to provide a complaint response at Stage 1 of its process. This was fault.
101. Following Ms X’s request for escalation of her complaint on 1 November 2023, the Council provided a “supplementary” response 50 working days later. The Council has no reference to a “supplementary” response within its complaints handling process. The Council should have issued a Stage 2 complaint response. Issuing of this “supplementary” response by the Council was fault.
102. When Ms X requested consideration of her complaint again on 15 January 2024, the Council issued its Stage 2 complaint response on 29 February 2024. The Council acted correctly to issue a Stage 2 complaint response within 40 days of 15 January 2024 and signpost Ms X to the Ombudsman. I do not find fault with this.
103. The Council has already offered Ms X £150 for the inconvenience and frustration caused through the delays in handling her complaint. The Council acted outside its complaints procedure and failed to adhere to the timescales detailed in its complaints procedure, causing delays of about two months. This offer of £150 is in line with the Ombudsman’s guidance on remedies for this fault and injustice.

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Agreed action

104. Within two months of the Ombudsman’s final decision the Council should:
• Provide an apology to Ms X and pay her £2,000 for Y’s lost education, and educational provision from their EHC Plan, from 4 January 2023 to the end of the academic year.
• Provide an apology to Ms X and pay her £150 for the delays outside its complaint procedure in handling Ms X’s complaint.
105. The Council should provide us with evidence it has complied with the above actions.

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Final decision

106. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.
      

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Investigator's decision on behalf of the Ombudsman