Summary: The Council failed to properly monitor Ms X’s son’s, Z’s, alternative education package while he was educated outside of school. This caused frustration, uncertainty and time and trouble. The Council has agreed to our recommendations for a financial remedy and service improvements. The Council was not at fault for the length of time it took to find Z a new school place.

The complaint

1. Ms X complains the Council:
• took too long to find Z a new school after the school he was at, School A, said it could no longer meet his needs;
• failed to secure suitable alternative education for him whilst he was out of school; and
• failed to deal adequately with her complaints.
2. Ms X said the several months Z was out of school was stressful for them both and that Z’s mental health has been negatively impacted.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended).
6. We exercised discretion in this case, as Ms X’s complaint related mainly to how long it took the Council to find a new school placement for her son, which she could not have anticipated based on Z’s November 2020 Annual Review.
7. If we are satisfied with a council’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)
8. 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

9. I considered evidence provided by the Council and Ms X.
10. I considered our Guidance on Remedies.
11. I considered the relevant law and guidance as set out below.
12. I considered comments on previous draft decisions before coming to this final decision.

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Law and guidance

Education, Health and Care Plans (EHC Plans)

13. Children with complex needs might need an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC plan is made available.
14. 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)

Duty to provide alternative education

15. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)). We refer to this as section 19, or alternative education, provision.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))

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What I found

What happened

17. Z is a secondary school age child with several developmental conditions. He has an EHC Plan.
18. In November 2020, School A advised they could no longer meet Z’s needs. The Council carried out an Annual Review of Z’s EHC Plan in the same month.
19. School A said in the Annual Review that it could provide Ms X’s son with a temporary, alternative education package to be accessed mainly from home but the Council needed to find him a new school as soon as possible.
20. The Annual Review did not set out what the alternative education package from the school would contain, only that he would remain in full-time, or the equivalent of full-time, education.
21. We asked the Council to demonstrate how it assured itself that this package would meet Z’s needs as set out in his EHC Plan. The Council responded to say the school was responsible for providing the package. It provided no further detail, other than to say it had discussed with the school and the social worker whether Z was able to engage with the alternative provision.
22. In the meantime, the Council approached several schools in November 2020 to see if they would accept Z. By mid-January 2021, these schools all either informed the Council they could not meet Z’s needs, did not have space or they did not respond.
23. In late January 2021 the Council then approached several other schools. Again most schools did not have space or could not meet Z’s needs.
24. In March 2021, a school offered Z a place but Ms X did not think the school was suitable, so she did not give her permission for Z to take part in a trial day. The Council continued to consult schools for placements, including independent schools, and the next offer of a school place was made in June 2021, for a start date of September 2021. This offer was accepted by Ms X and Z currently attends this school.
25. Ms X raised concerns about Z’s mental health deteriorating and him not engaging with the alternative education package several times between November 2020 and June 2021 including through the Council’s complaints procedure. The Council said in its stage three complaint response that it did not take steps to review the package as early as it could have done and accepted fault for this.
26. Ms X raised some issues in her complaint to the Council which it failed to address. She said the Council stated Z had been offered swimming sessions and art classes but that was not the case. Instead Ms X said the school had offered to reimburse her if she took him swimming and Z was not offered art therapy. These concerns were not responded to by the Council.

My findings

27. Ms X raised some issues in her complaint to the Council which it failed to address. The Council agreed that its initial complaint response to Ms X was unhelpful in addressing her concerns. This was fault leading to frustration and time and trouble for Ms X. I have recommended a symbolic financial payment to acknowledge this.
28. The Council acted appropriately and in a timely manner when it consulted with schools between November 2020 and June 2021. There was no fault in the Council’s actions.
29. The courts have said councils have a non-delegable duty to ensure a child receives suitable full-time education. In its responses to Mrs X and the Ombudsman, the Council said several times that the school was responsible for providing Z’s alternative provision while he was out of school. This is not in line with the law and is fault. The Council has agreed action to prevent reoccurrence of this fault causing injustice to others.
30. Once it became aware Z was not engaging, it should have taken steps to consider whether his EHC plan needed reviewing, or whether the package could have been altered. I cannot say that Z would have engaged more had the Council monitored his package more regularly and offered different alternative provision. However, Mrs X is left with uncertainty over whether Z could have had improved educational and social outcomes during the period he was educated outside of school, if these faults had not occurred. I have recommended a symbolic financial payment to acknowledge injustice caused by this.

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Agreed actions

31. Within one month of the date of the final decision, the Council should;
• apologise to Ms X for the faults identified in this decision statement;
• pay Ms X £200 in recognition of the avoidable time and trouble she went to during the complaints process when her complaints were not all responded to; and
• pay Ms X £200, in recognition of the uncertainty caused to her and her son when the Council failed to regularly monitor Z’s alternative education package.
32. Within three months of the date of the final decision, the Council has agreed to demonstrate that it has reminded staff, through appropriate training, of:
• the importance of the Council regularly monitoring the progress of a child’s alternative education package while they are being educated outside of school; and
• the Council’s legal duty to ensure that the alternative education being accessed by the child is suitable and continues to be suitable for them for the entire period they are out of school.

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Final decision

I have concluded my investigation. I have found fault leading to injustice and the Council has agreed to remedy the injustice and take action to prevent similar fault in future.

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Investigator's decision on behalf of the Ombudsman