Summary: Mr X complained that the Council delayed in issuing a final Education, Health and Care Plan for his son, and failed to provide suitable alternative education while he had no school place. We find there has been fault causing a loss of suitable education for the son and avoidable distress and frustration for the family. The Council has agreed a symbolic payment for this injustice. We are therefore closing the complaint.

The complaint

1. Mr X complained that the Council delayed:
1. in issuing his son’s (Y’s) final Education, Health and Care (EHC) Plan;
2. failed to respond to the complainant’s many emails; and
3. failed to provide appropriate alternative education while Y was without a school place.
2. Mr X says that the Council’s faults have caused avoidable distress and frustration, a loss of work opportunities for him, and Y has missed out on suitable education.
3. The Council has investigated the complaint and upheld Mr X’s concerns about poor communication and a period of loss of education. The Council apologised. But Mr X does not consider the Council has understood the adverse impact on the family or Y or provided an appropriate remedy.

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The Ombudsman’s role and powers

4. 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’.
5. 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).
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. 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).
9. 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

10. I have investigated matters from January 2024 to December 2024 when Y was placed at a special school, School B.
11. Mr X had a right of appeal to the SEND Tribunal in July 2024 when the Council issued the final EHC Plan, which he exercised. Normally, we do not investigate a complaint once a right of appeal is triggered. But, in this case, Y had no school place and therefore the Council had a duty to provide alternative education, in accordance with his final EHC Plan, until Y was placed at a suitable school.

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How I considered this complaint

12. I considered evidence provided by the Council and by Mr X as well as relevant law, policy and guidance as set out below. I issued a draft decision statement but required further information from the Council. Accordingly, I issued an amended draft decision in light of this additional information.
13. I have taken into account the additional comments when reaching my final decision.

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What I found

14. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply). There are exemptions to the timescale. In this case, where the educational institution is closed for at least four weeks, which may delay the submission of information, that is a legitimate exemption.

15. EHC Plans are set out in sections. Section I sets out the name of, or type of, school required. If a qualifying school is considered appropriate, a council can name that school in certain circumstances.

Transfer between councils

16. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014).

17. Where an assessment is in progress, the new council should decide whether it should carry out a new assessment if requested by the parents/carers.   

Alternative education

18. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
19. 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)).
20. In more general terms of educational provision and attempts at reintegration, the Department of Education (DfE) statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states “there will be a range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the local authority, for example where the child can still attend school with some support”. The guidance envisages that in the first instance schools are responsible for managing attendance issues relating to ill-health and special educational needs.
21. The DfE has recently updated its guidance.  
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. In practice, we would expect to see councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision.

The Council’s policy

24. The Council has a dedicated team of officers who support and maintain the plans for children without a school place. The Council also has a team who seek appropriate providers of alternative education in consultation with the SEND team. The Council is developing an alternative education strategy.
25. The Council has recently been reorganised so that special educational needs officers have lower caseloads with each officer having allocated educational settings so to work better with schools and parents/carers for pupils with EHC Plans.

Key facts

26. Y has a diagnosis of Autistic Spectrum Condition (ASC). The family moved to the Council’s area in December 2023. The Council received notification from the previous council of this move just before the Christmas break. The previous council had issued a draft EHC Plan for Y in early December 2023. The Council was told Y had been attending a pupil referral unit on a parttime basis.
27. At the end of January 2024, the Council’s special educational needs Panel considered what education would be suitable for Y but decided it required advice from the previous council.
28. Mr X requested alternative education in the meantime. The Council agreed to tutoring at Y’s home from a provider (Provider B) for five hours per week. This started at the end of February 2024. Mr X says that the first two tutors said that they could not teach Y. The third tutor understood Y’s needs better.
29. Mr X says that Y found it difficult to concentrate when at home. Although five hours were offered, they were not always used because the third tutor could not offer alternative days. Mr X asked the Council for a school place.
30. The Council offered a mainstream school. Mr X declined this because he thought this would set up Y to fail because he required a specialist placement.
31. As part of the Council’s consideration of Mr X’s complaints, it accepted that, between March and May 2024, Y did not receive suitable education.
32. In early March 2024, the Council issued a draft EHC Plan and consulted Mr X’s preferred special school, School C. Mr X responded promptly to the draft EHC Plan.
33. In April, School C declined admission, providing a comprehensive account of why it could not agree to admit Y. The Council decided that it could not name that school in Y’s EHC Plan.
34. In April 2024, Mr X asked for holiday activities for Y and some respite care. In mid- May, the request was referred to the Council’s children services.
35. The Council took no action to progress the EHC Plan until mid-May when it contacted Mr X after he had been chasing up the Council.
36. The Council says that it arranged another tutor to provide home tuition to Y which started in mid-May 2024. The Council says that this tuition continued until Y started at School C. Mr X says that this tuition took place between June to the end of the summer term, July 2024. It consisted of five hours per week although Mr X says the teaching was unreliable, often did not take place and five hours per week was too little.
37. The Council says that Y’s behaviours were such that often he did not engage in the learning provided. The Council says that offering more than five hours was not appropriate.
38. In June and July 2024, the Council consulted two other special schools. Both schools declined to admit Y.
39. In early July 2024, the Council issued a final EHC Plan stating that Y required a special school. But it did not name one. The Council consulted School C again.
40. Mr X lodged an appeal to the SEND Tribunal. School C again refused admission. The Council considered School C’s reasons for refusing admission. But, in accordance with its power to name a school in certain circumstances, it decided to name School C on Y’s EHC Plan.
41. Mr X says that Y started there at the beginning of December 2024 and has provided evidence of this. There were a few transition meetings before then.
42. The Council says Y started at the end of October 2024.

Findings: Complaint (a)-the Council delayed in issuing Y’s final EHC Plan

43. Once a draft EHC Plan is issued, a council must give parents/carers fifteen days to respond and to express a preference for a school.
44. The Council received a draft EHC Plan from the previous council in late December 2023. The Council decided to seek further advice from the previous council about what type of school was required. While this added to the time to issue a final EHC Plan, I consider it appropriate for the Council to have sought this advice.
45. In early March, the Council issued a further draft EHC Plan. I consider that the Council should have issued a final EHC Plan by early April 2024 (four weeks after the draft). It was another three months before the Council issued a final EHC Plan. This delay amounts to fault.
46. Had the Council issued a final EHC Plan in April, Mr X’s right of appeal to the SEND Tribunal would have been triggered sooner. I consider Mr X would have exercised his right of appeal. I cannot say that Y would have been placed at his special school sooner. But there was a lost opportunity to ensure Y received appropriate education sooner and enable Mr X to pursue his work commitments more easily.

Complaint (b)-the Council failed to respond to the complainant’s many emails

47. As part of the Council’s investigation of Mr X’s complaints, the Council accepted that it had failed to respond to Mr X’s emails, and it has apologised. I accept the Council’s findings of fault here and this caused avoidable frustration and distress to the family.

Complaint (c)-the Council failed to provide suitable alternative education

48. The Council has already accepted it did not provide suitable alternative education between mid-March and May 2024.
49. Mr X says that the alternative education between June and July 2024 was too little and was unreliable and, contrary to what the Council says, this tuition stopped by September 2024.
50. On the balance of probability, I accept Mr X’s account of events. I am also satisfied that Y did not start at School C until the beginning of December 2024.
51. This means that the lack of suitable alternative education runs from mid-March to December 2024.

Action

52. 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.
53. 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 (between £300 to £500) whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
54. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
55. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

56. Within one month of the final statement, the Council will:
1. apologise to Mr X for the faults identified and make a symbolic payment of £500 for his avoidable distress;
2. the Council has accepted that it did not provide suitable alternative education between March and May 2024. But the period of lost education is longer than this and, although the Council offered some alternative education between June and July 2024, this was not always provided. For the period of March to July 2024, when the alternative education was unreliable, the Council will make a symbolic payment of £500 to Mr X to be used for Y’s benefit;
3. Y did not start at School C until the beginning of December 2024. Therefore, Y had no education as required between September to November 2024. The Council will make a symbolic payment of £1,750 to Mr X to be used for the benefit of Y.
57. I am not recommending any service improvements because the Council has recently reorganised its special educational needs teams, and it also has a strategy to develop its alternative education provision.
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. I find fault causing injustice. The Council accepts the findings and recommendations, and therefore I am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman