Summary: Mrs X complains about the way the Council has dealt with her concerns about her child’s (Child Y) education. The Council was at fault for not acting sooner to secure an alternative placement for Child Y for over two years and for not ensuring Child Y received the provision set out in their Education, Health and Care Plan (EHCP). The Council has agreed to apologise and make payments to Child Y and Mrs X for the missed education provision and poor handling of Mrs X’s complaint.

The complaint

1. Mrs X complains about the way the Council has dealt with her concerns about her child, Child Y’s education. She says in June 2019 the Council accepted that Child Y’s current school could not meet their needs but has failed to find the right type of specialist school for Child Y since then. In addition, Mrs X says the Council has failed to:
1. provide Child Y with a suitable education since September 2019;
2. ensure the provision in Child Y’s Education, Health and Care Plan (EHCP) was met from September 2019 to September 2022;
3. secure suitable fulltime education for Child Y from September 2019 to September 2022;
4. ensure appropriate alternative provision from September 2019 to September 2022; and,
5. progress Mrs X’s complaint to stage two of the complaint process.
2. I have exercised discretion to investigate Mrs X’s concerns about Child Y’s education from September 2019. This is because the issues causing injustice to Child Y and Mrs X have been ongoing since this time.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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.
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 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

7. We have spoken to Mrs X and considered the information she has provided in support of her concerns.
8. I have considered the information the Council has provided in response to our enquiries.
9. 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.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant guidance

Education, Health and Care Plan reviews

11. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
12. EHCPs should be used to actively monitor children and young people’s progress towards their outcomes and longer-term aspirations. They must be reviewed by the Council as a minimum every 12 months.
13. Councils must conduct a reassessment of a child or young person’s EHCP if a request is made by the child’s parent. A Council can refuse a request for a reassessment (from the child’s parent, young person or educational institution attended) if less than six months have passed since the last EHC needs assessment was conducted.
14. The first review must be held within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review, and the council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHCP or previous review).
15. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)

Alternative education

16. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. 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)
20. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
21. 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)
22. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
23. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

What happened

24. Child Y has special educational needs. In April 2019, Child Y started to attend School Z, which was the alternative provision placement named in their Education Health and Care Plan (EHCP). Almost immediately, Child Y’s behavioural difficulties meant that they were excluded from usual lessons at School Z. Child Y began a part time timetable, where they continued to attend School Z for one morning a week and spent two days per week at another specialist provision (School B).
25. Child Y’s placement at School Z was limited to a period of two years, so the Council needed to ensure it had secured an alternative placement in good time for Child Y’s transition to another setting.
26. In November 2019, the Council completed an annual review of Child Y’s EHCP. It appears this concluded that School Z was an unsuitable setting for Child Y and they required a specialist Social, Emotional and Mental Health (SEMH) placement to best meet their needs.
27. Mrs X commissioned a review of Child Y from an Educational Psychologist in April 2020, which recommended targeted classroom help and a differentiated curriculum for Child Y, in addition to a further assessment for Attention Deficit Hyperactivity Disorder (ADHD), Occupational Therapy assessment and psychotherapy. The Educational Psychologist also offered to work with Mrs X and the Council in identifying a suitable placement to meet Child Y’s needs. It is unclear what action the Council took in light of these recommendations.
28. The Council started a further annual review of Child Y’s EHCP in December 2020. Child Y remained on the roll of School Z and continued to attend one morning per week, together with two days’ attendance at School B. The Council submitted Child Y’s draft EHCP to its Specialist Education Panel for consideration in March 2021 due to the change in placement.
29. The Council started the process of consulting other education placements for Child Y in November 2021 and this process continued with consultations being made to ten different placements between November 2021 and the end of June 2022. During this time, Child Y remained on the roll at School Z and continued to attend School B until Easter 2022. Child Y’s education provision dropped to one morning per week at School Z from 25 April 2022 to 21 July 2022.
30. In August 2022, the School C (a specialist SEMH provision) agreed to accept Child Y and they started attending in September 2022.

Mrs X’s complaint to the Council

31. In early February 2022, Mrs X made an online complaint to the Council about its handling of Child Y’s education provision. Mrs X had to resubmit this complaint to the Council on 18 February 2022. Mrs X was unhappy the Council had failed to secure a suitable SEMH placement for Child Y and that they had not been receiving an appropriate education for two years because of the Council’s inaction.
32. The Council responded to Mrs X’s stage one complaint on 14 March 2022. It apologised for the delay in identifying a suitable placement for Child Y and explained it was still in the process of consulting with potential schools. The Council said it would continue working with Mrs X to find a suitable placement for Child Y.
33. Mrs X brought her complaint to us shortly after this because she remained dissatisfied with the Council’s handling.

Analysis

34. The Council has provided limited information in response to our enquiries. It does however appear the Council took more than two years from the point it accepted Child Y needed an alternative education placement to identify and transfer them from School Z to School C.
35. During this time, Mrs X continued to raise concerns about the lack of fulltime education Child Y was receiving and the impact this was having on them and their family. Mrs X reported that Child Y had made two suicide attempts during this time due in part to the distress they experienced each time they had to attend School Z. This will no doubt have been extremely upsetting and distressing for Child Y, Mrs X and the rest of Child Y’s family.
36. The Council was at fault for not acting sooner to secure a suitable alternative placement for Child Y. The Council says it made concerted efforts to consult with a number of other providers over this time. The evidence I have seen however shows there were significant periods of drift and inaction in the Council’s consultations with other schools. It is also unclear why the Council’s approaches to various settings were not all made at the same time to help avoid some of the delay that inevitably occurred in this case.
37. Of the ten providers the Council sought to consult for placement of Child Y, four failed to respond at all and another four provided significantly late responses to the Council’s requests. I have seen no evidence the Council sought to chase any of these providers once the 15-day deadline for response had passed. Even the provider (School C) that eventually accepted Child Y took three times longer than it should to respond to the Council’s consultation request.
38. These delays in the Council’s handling meant that between 2 September 2019 and 8 April 2022, Child Y only received two and a half days of education provision per term week. There is no evidence from the Council to show that it undertook the steps required to assess how much education was appropriate for Child Y during this time or the amount of education they could cope with. This was fault by the Council which caused significant injustice to Child Y.
39. From 25 April 2022 to 21 July 2022, Child Y only received one morning of provision at School Z per week as their placement at School B ended. Again, there is no evidence to show the Council assessed the amount of education Child Y could cope with during this period, which was fault.
40. The Council initially overlooked Mrs X’s stage one complaint in early February 2022. This was fault, which caused avoidable inconvenience to Mrs X, who had to resubmit her complaint. When the Council did respond to Mrs X’s complaint, it failed to properly address her concerns. While the Council acknowledged and apologised for the continued delays in securing a suitable placement for Child Y, it provided no meaningful resolution to the impact this caused.
41. The Council’s failure to accept Mrs X’s escalated complaint about this situation until it had resolved Child Y’s placement was ill-judged and served only to cause Mrs X further frustration. Mrs X was put to unnecessary time and trouble bringing her complaint to us when the matter could and should have been resolved by the Council.
42. I am aware the Council commissioned an independent review of its SEN services which was completed in July 2021. This highlighted areas for improvement which relate to the way in which the Council dealt with this case. The Council is in the final stages of completing the action plan it created to address the issues identified by the review, so it is not yet possible to know whether these changes have helped resolve some of the problems highlighted by this case. As a result, I do not consider it beneficial to make service improvement recommendations in this instance and my recommendations below are limited to addressing the personal injustice caused to Child Y and Mrs X.

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Agreed action

43. Within one month of my final decision, the Council agrees to:

• make a written apology to Mrs X and Child Y for the faults identified in this decision statement. The apology to Child Y should only be provided if Mrs X feels this is appropriate and in a format that best suits Child Y’s needs;
• pay £9,000 to Mrs X for the benefit of Child Y for the education provision they missed due to the Council’s delay in securing an alternative placement when it knew School Z was no longer suitable; and,
• pay £500 to Mrs X for the distress, time and trouble caused by the Council’s delayed action and poor complaint handling.

44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation and uphold Mrs X’s complaint. Mrs X and Child Y were caused injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman