Summary: Mrs X complained about the Council’s handling of her son’s alternative provision and special educational needs provision after March 2024. We found the Council was at fault for not monitoring what provision the child received and if it was suitable for his needs. This meant that Mrs X’s son likely missed out on education and support he was entitled to. The Council agreed to apologise and pay Mrs X a remedy for the injustice she experienced.

The complaint

1. Mrs X complains that since the Council issued the final Education, Health and Care Plan for her son, S, in late March 2024 it failed to:
• provide suitable education for S;
• provide all the provision from section F of his ECH Plan; and
• communicate with her effectively about the progress of securing a specialist school for S.
2. Mrs X says this had a detrimental impact on her and on S. He is getting more isolated, and his social anxiety increases with each month he is not attending a specialist placement that could meet his needs. Mrs X questions what long term impact this will have on S’s ability to meet his potential. She has also spent avoidable time in chasing the Council for updates about how it progressed S’s case and school consultations.
3. Mrs X would like the Council to find a suitable school place for S without a delay and ensure he has access to all the provision named in section F of his EHC Plan.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
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 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)
9. 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.
10. 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).
11. 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.
12. 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)

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Educational provision – available and accessible

15. 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)
16. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
17. 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))
18. 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)

Special Educational Needs

19. A child with special educational needs may have an Education, Health and Care Plan (EHC Plan). This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about special educational needs and provision, or name a different school. Only the Tribunal can do this.
20. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
21. The Council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).

What happened

22. In January 2024 S’s school alerted the Council to S’s attendance issues.
23. In late February 2024 the Council recommended S should attend a high level Communication and Interaction Centre. But S should continue in a mainstream school with extra funding until such a place is secured for him. In the same month S’s school put eight hours of online provision for him to access.
24. In late March 2024 the Council issued S’s final EHC Plan. The Plan named a mainstream school. Around the same time the Council consulted with a school which was Mrs X’s preferred placement, but it said it could not meet S’s needs.
25. Mrs X asked the Council if S’s online tuition could include science as this was his area of interest.
26. Mrs X made a complaint to the Council in late May 2024. She said S was out of school. She told the Council S’s school provided some online learning for S, but he was not getting any provisions from the section F of his EHC Plan.
27. The Council responded to her complaint the following month. It said:
• it agreed specialist placement in February and consulted with Mrs X’s preferred school; and
• the communication between the Council and Mrs X about this case was below service standards and apologised for it.
28. Mrs X was unhappy about the response and on the same day she asked the Council to consider her complaint further.
29. In July 2024 the Council held an annual review of S’s EHC Plan. Around this time S’s online provision increased from eight hours to 25 hours per week.
30. Mrs X asked the Ombudsman to investigate in August 2024. At the time the Council was still considering her complaint so we asked her to come back to us once she completed the Council’s complaints process.
31. Within a couple of weeks the Council issued its final response to Mrs X’s complaint. It said that:
• its initial response did not adequately address her complaint and did not explain the learning actions the Council committed to as a result of her complaint;
• the service would provide a further, fuller response by 13 September 2024.
32. In early October 2024 the Council provided a further response to Mrs X’s complaint. It said that:
• the school named in S’s March EHC Plan implemented online learning for him, although the Council was unsure how many hours he received;
• it was still working on identifying an appropriate school for S;
• the Council reviewed S’s Plan in July, and was yet to issue a final Plan following the review;
• it accepted it should have kept an oversight of S’s educational provision from the moment he received an EHC Plan in March 2024; and
• to remedy the lost educational opportunities for S it was to pay Mrs X £900.
33. Mrs X remained unhappy and asked the Ombudsman to investigate.
34. Between late October 2024 and late November 2024 the Council consulted with four more schools to check if they could meet S’s needs. One of the consults was successful and said S could start school in early December 2024.
35. In December, S started to attend his new school.

Analysis

Alternative provision and provision from EHC Plan

36. The Council accepted that it was at fault for not keeping appropriate oversight of S’s educational provision since March 2024 when he received a final EHC Plan. This includes educational provision as well as the specialist provision from section F of S’s Plan.
37. Whilst S did get some online provision between February 2024 and December 2024, we have seen no records to show how the Council decided that the initial hours of education per week were suitable to a S’s age, ability and aptitude and to any special educational needs recorded in his Plan. This is fault.
38. We consider its likely that between February and July 2024 S missed out on some of the educational provision to suitably meet his needs. This meant that an already vulnerable young person had been left without a crucial support they were entitled to for just over a term. The Council’s records show that Mrs X raised concerns about S’s isolation and her worry about S’s engagement with potential future school placements. The Council offered to pay Mrs X £900 to recognise this loss, however we consider the Council should pay her £1200.
39. The following term, S received 25 hours per week of online tuition which he engaged with, however he was still missing the social interactions and most of the provision from section F of his Plan.
40. The Council’s records show that it did not consult with any schools between March and late October 2024. Then between late October and late November it consulted with four places, one of which the Council named in S’s EHC Plan. We consider the delay in consulting with schools amounts to fault. This caused Mrs X and S significant avoidable uncertainty about what would have happened had the Council acted without fault. Mrs X says the school that met S’s needs had a place available in September for him to start, but the Council failed to send a consultation in. We cannot say that, even on balance, whether this confirms the significant uncertainty Mrs X experienced as a result of the Council’s actions.

Communication standards

41. In June 2024 the Council accepted that its communications with Mrs X about this case fell below the expected standards, and it apologised for it.
42. We consider that alongside the apology, the Council should pay Mrs X £100 for the frustration and uncertainty she experienced as a result of the Council’s poor communications.

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Action

43. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X for its failure to monitor the provision S received between February and July 2024 to ensure it suitably meet his needs and the distress and frustration this has caused her. The Council should refer to our guidance on making an effective apology;
• pay Mrs X £300 to remedy the distress and unnecessary uncertainty she experienced as a result of the Council’s delay between March and November 2024 in securing a new school placement for S;
• pay Mrs X £100 to recognise the frustration she experienced as a result of the Council’s communications which fell below the expected standard and
• pay Mrs X, on behalf of S, £1200 to remedy injustice caused the loss of educational and SEN provision between February and July 2024. She should use the money as she feels best to support his social and educational needs.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman