Summary: There is no fault in the Council’s decision not to provide alternative education when Ms M withdrew her son B from school. In any event, Ms M had a right of appeal to the Tribunal. The Council has taken too long to amend B’s EHC Plan, but the Council has already offered a suitable remedy for the impact of the delay.

The complaint

1. Ms M complains the Council failed to arrange alternative education for her son, B, when he stopped attending school in September 2023.

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The Ombudsman’s role and powers

2. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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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How I considered this complaint

5. I considered information provided by Ms M and the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. Ms M’s son, B, has an education, health and care (EHC) plan maintained by the Council. He was a pupil at a special school. He stopped attending school in September 2023. Ms M says she withdrew him from school because of bullying.
7. The Council held a review of B’s EHC plan in October 2023. Ms M requested a change of placement. The Council declined.
8. Unhappy with the Council’s decision, Ms M began mediation with the Council. Following mediation, the Council agreed to obtain advice from an educational psychologist and undertake a new review. The Council also provided funding for B’s school to arrange home tuition.
9. The Council held a new review on 30 April 2024, the earliest mutually convenient date. The Council agreed to name a different school in B’s EHC plan and began consultations. Consultations did not go smoothly, however. Ms M’s preferred school was reluctant to admit B, and no other schools had capacity.
10. Ms M complained to the Council. The Council responded at both stages of its complaints process.
11. The Council said that it was not responsible for B’s education when Ms M withdrew him from school in September 2023 because there was a school place available for him which the Council considered suitable. The Council explained that it had considered Ms M’s concerns about bullying and the suitability of the school during the annual review.
12. However, the Council acknowledged that things had not gone to plan following the April 2024 review. In particular, the Council had not been able to complete the process on time because of problems with the schools it had consulted. B continued to receive home tuition, but the Council acknowledged this fell short of the school place to which he was entitled. The Council outlined how it planned to resolve the problem and offered a symbolic payment of £250 per month for the impact on B’s education. The Council said it would make the payment from 18 June until it issued B’s amended Plan.
13. Unhappy with the Council’s response, Ms M complained to us.

Consideration

14. Ms M believes the Council should have made alternative arrangements for B’s education when she withdrew him from school in September 2023.
15. Councils have a duty to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
16. The Council says it was not required to arrange education for B because there was a school place available which it was reasonable for him to attend.
17. Ms M disagrees.
18. The disagreement between Ms M and the Council boils down to a question about the suitability of B’s school. Ms M withdrew B from the school because she no longer considered it suitable. The Council reviewed B’s EHC Plan and decided the school remained suitable.
19. There is no fault here.
20. In any event, Ms M had a right of appeal to the SEND Tribunal to challenge the Council’s decision. We do not consider complaints where a parent has a right of appeal and we consider it would be appropriate for them to use it.
21. It is beyond our expertise and authority to assess the suitability of B’s school. It would have been reasonable for Ms M to have appealed to the SEND Tribunal to challenge the Council’s decision.
22. Ms M and the Council engaged in mediation. Councils are required to arrange mediation if requested to try and avoid the need for an appeal.
23. The mediation concluded with an agreement that the Council would obtain advice from an Educational Psychologist and review B’s EHC Plan. The Council held the review meeting as soon as possible on 30 April 2024. Regulations say the Council should complete the review and issue an amended EHC Plan within 12 weeks of the review meeting. The Council was unable to meet this deadline. That is fault.
24. However, the Council arranged five hours of home tuition and agreed a symbolic payment of £250 per month until it issued the final amended Plan.
25. While this is clearly not ideal, the Council took action to mitigate the impact on B and explained how it intended to resolve the problems.
26. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
27. 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. We have published guidance to explain our approach.
28. The Council has already taken action that is broadly in line with our guidance. There is nothing more I can add.

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Decision

29. I have completed my investigation. There is no fault in the Council’s decision not to provide alternative education when Ms M withdrew B from school. In any event, Ms M had a right of appeal to the Tribunal. The Council has taken too long to amend B’s EHC Plan following the review agreed during mediation, but the Council has already offered a suitable remedy for the impact of the delay.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman