Summary: The complainant alleged that the Council delayed in finding his son an alternative school placement when it became aware that he would have to leave his current placement. We have found some fault by the Council causing an injustice. The Council has agreed to provide the recommended remedy. We are therefore closing the complaint.

The complaint

1. The complainant, Mr X, complained that, between May 2022 and July 2024, the Council failed to provide suitable education for his son, Y, it also sent an out-of-date Education, Health and Care (EHC) Plan to the schools it consulted and its communication with the complainant was very poor.
2. As a result of having no school place, Y became anxious and isolated, requiring support from the Child and Adolescent Mental Health Services (CAMHS) and the complainant was caused avoidable time and trouble, frustration and distress.

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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.
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
6. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
8. 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)
9. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin)
10. 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)
11. 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

12. Mr X had a right of appeal to the SEND Tribunal in May 2022 when the Council said it would not amend the EHC Plan. I have exercised discretion to look at events after this date because it is clear the Council accepted Y required an alternative school placement. So, Mr X had no need to appeal seeking an alternative placement, believing the Council would do as it intended.
13. Mr X also had a right of appeal in July 2023 when the Council issued a final EHC Plan, stating that a specialist placement needed to be confirmed. At this time, Y had no school place and the Council had already agreed to provide alternative education.
14. Mr X appealed to the SEND Tribunal. The appeal was about Mr X’s request for Y to be placed at a particular special school. He also raised concerns about the Council’s conduct during the appeal.
15. Due to the restrictions on our jurisdiction, I cannot investigate matters after July 2023 because Mr X exercised his SEND Tribunal appeal rights, and the matters complained of after this date were a substantive part of that appeal. It also means that I cannot look at the alternative education provided by the Council from September 2023.

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How I considered this complaint

16. I made enquiries of the Council, shared its comments with Mr X and spoke to him on the telephone. I issued a draft decision statement to the Council and to Mr X and I have taken into account their further comments.

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What I found

Special educational needs

17. Children with special educational needs may have an EHC Plan, setting out their needs and the provision to meet them. Section I names the school and/or type of provision required. Section J sets out details of the personal budget required to meet the special educational provision.
18. 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 2014). The courts have said the duty to arrange this provision is owed personally to the child and is non-delegable.  

19. Section 43 of the Children and Families Act 2014 says certain schools must admit a pupil if the EHC plan names it.

Reviewing EHC Plans

20. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

21. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal. There is also a right of appeal to the SEND tribunal where a parent/carer disagrees with the named school and/or type of provision.

Key facts-EHC planning

22. This is a brief account of the main events.
23. Y attended a special independent school, School B. Y has a diagnosis of an autistic spectrum condition (ASC) and Pathological Demand Avoidance. He is described as an able pupil.
24. At an annual review of Y’s EHC Plan in May 2022, Mr X says that School B stated that it was not a suitable placement for Y because he was capable of taking General Certificates of Secondary Education (GCSEs) which School B did not provide.
25. The Council wrote to Mr X asking him if he was asking for a change of placement. He replied that he was, and the Council consulted his preferred choice, School C. School C replied stating it could meet need, but it was not in a position to offer a placement at that time.
26. The Council also consulted a number of other schools, sending a copy of the May 2022 annual review report, and the EHC Plan of December 2021. The Council says it received responses from all the schools which were required to respond. But they were unable to offer a place.
27. In September 2022, the Council decided to maintain the EHC Plan. The Council told Mr X of his right of appeal to the SEND Tribunal. The Council confirmed that Y would remain at School B while it looked for more suitable placements. Y remained at School B for the academic year, 2022/2023.
28. Mr X did not appeal because he was satisfied that the Council was looking for a future suitable placement. For that reason, I have exercised discretion because Mr X had no reason to resort to this appeal remedy.
29. In September and November 2022, the Council consulted other schools, one of the schools, School E, which said that it was suitable, but it did not have an available place.
30. It seems that there were no consultations between the end of November 2022 to the end of March 2023.
31. The Council then consulted another four schools. In March 2023, the Council emailed Mr X to tell him that there were four schools, which could meet need, but they did not have available places at the time. One of those schools, School F, was one of Mr X’s preferred choices.
32. At the annual review of May 2023, School B stated it was withdrawing Y’s placement at the end of July 2023. At the end of May 2023, School B emailed the Council to tell it this.
33. The May 2023 annual review report provided up to date information about Y’s special educational needs, his strengths and the proposed amendments to Y’s EHC Plan. The Council consulted another four schools in June and July 2023, all stating that they could not meet need or had no available placement.
34. Mr X says that he was told by the then caseworker that, one of the schools, School F, could meet need but did not have space. Mr X believes that School F would have had a space for Y in September 2023.
35. The Council told Mr X that it would arrange alternative education for Y if there was no school placement for September 2023. The Council sent a referral to its provider of tuition in July 2023.
36. In July 2023, Mr X made a formal complaint to the Council about the failure to find a school place for Y, knowing in advance that he would be without a school place from September 2023.
37. In July 2023, the Council issued a final amended EHC Plan stating Y required a specialist setting.
38. Mr X says that Y became very distressed and anxious not knowing which school he would attend from September 2023. Mr X had to involve support from CAMHS because Y posed a risk to himself.
39. In September 2023, Mr X launched a SEND Tribunal appeal concerning Y’s placement expressing a wish for School F, believing that it could meet need as he had been told. The Council says, however, that Mr X was aware from its March 2023 email that School F did not have a place available.
40. In October 2023, the Council reconsulted School E (which it had consulted in September 2022), and it agreed to place Y on the waiting list. But it could not give an indication of when a placement might become available. A place, however, became available for September 2024 and Y is now placed there.
41. Mr X says that there were a series of SEN caseworkers during this period and often they would not respond to his queries or emails. Mr X considers that the Council has failed to recognise that this poor communication has compounded a difficult situation, and partly accounts for the failure to find an alternative school placement for Y starting in September 2023.
42. The Council agreed fifteen hours tuition, 2:1, for Y starting in September 2023. The Council says that the number of hours was agreed with the parents. The tuition concentrated on the core subjects, English and Mathematics.

The Council’s complaint response

43. On 8 March 2024, the Council provided its final response on Mr X’s complaint. It listed the schools consulted in September 2022. The Council did not uphold the complaint that there had been a delay in finding Y a school place.
44. The Council did uphold the complaint that Mr X had been misinformed about the suitability of a place at School F and that there was evidence of ‘miscommunication’.
45. The Council has told us that in April 2024 formal agreement was given to increase capacity within its special educational needs department and there is a recruitment programme to support the stability of staff. The Council also has training programmes for staff to improve appropriate communication and compliance with statutory timescales.
46. In addition, the Council explains that it has been working to increase its special schools and capacity with an additional 127 places from September 2024. However, increasing capacity is not solely within the Council’s control and it is important to consider capacity issues in the context of a national unprecedented demand for schools which can meet special educational needs.

Findings-EHC process

47. The Council was aware in 2022 that School B was not a suitable long-term placement because Y could take GCSEs. But it was satisfied that Y could remain at School B for the academic year of 2022 to 2023 while it looked for a future alternative placement for September 2023.
48. The Council starting its the search for an alternative placement, and in June 2022 it confirmed with Mr X that he was looking for an alternative placement. The Council started to consult some possible schools. That is to the Council’s credit. Therefore, I do not find fault at this stage.
49. The Council consulted a school, School E, in September 2022, which said that it would place Y on its waiting list.
50. In September 2022, the Council agreed to maintain Y’s EHC Plan but also to continue to look for an alternative placement. The Council has provided evidence of other schools it consulted after this date.
51. Between the end of November 2022 to the end of March 2023, the Council did not consult any other school in this period. As part of the Council’s complaint response, it accepted that there had been a lull in the consultations. Further searches began when a new caseworker took over at the end of March 2023.
52. I find fault during this above period (end of November 2022 to March 2023) when the Council should have continued with its search for an alternative placement. That was a lost opportunity, but I could not say a placement would have been found, starting in September 2023.
53. In May 2023, the Council was aware that School B was ending its placement. It renewed its search for an alternative school during June and July 2023, unsuccessfully. The Council agreed to provide alternative education if a school placement could not be found by September 2023.
54. In July 2023, the Council issued an amended final EHC Plan stating a specialist placement was required.
55. At this point, Mr X had a right of appeal to the SEND Tribunal. Our jurisdiction does not permit the Ombudsman to investigate matters closely related to that appeal. This includes the Council’s conduct during the appeal and the interim education provided by the Council. So, I cannot investigate r X’s concerns after July 2023.
56. Mr X considers that, but for the delays, the lack of consistent caseworkers and the sending of an out-of-date EHC Plan to schools, Y might have been placed at School E for September 2023. But, over the two-year period, the Council consulted many schools, most of which stated they could not meet Y’s needs. I cannot say why this was and whether sending these schools an out-of-date EHC Plan was the cause. But I note that School E agreed it could meet need, and to place Y on its waiting list in September 2022 when the EHC Plan had not been updated.
57. So, I cannot say that the identified faults led to the failure to find an alternative placement sooner.
58. I had asked the Council about its efforts to increase capacity in its special schools. The Council has explained the action it has taken and explained that there is a national unprecedented demand. I do not consider I require further information because the Council has explained the action it is taking to meet demand.

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Agreed action

59. We have published guidance to explain how we recommend 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.
60. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
61. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
62. Within one month of the final statement, the Council will:
1. apologise to Mr X and make a symbolic payment of £750 to recognize his and Y’s avoidable distress.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. I find that there has been some fault causing an injustice between the period of May 2022 to July 2023. Matters after this date are outside our jurisdiction to investigate. I have therefore completed my investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman