Summary: Miss X complained the Council failed to provide her son (Y) with education and free school meals. We found fault with the Council for failing to provide Y education. We recommended the Council apologise to Miss X and pay £1400 in recognition of Y’s missed education and £250 for uncertainty and distress.

The complaint

1. Miss X complains the Council:
1. Failed to provide her son (Y) full-time education or a suitable alternative provision between October 2021 and June 2022.
2. Delayed issuing Y’s Education Health and Care Plan (‘EHC plan’).
3. Did not provide adequate hours of education between June and September 2022.
4. Did not provide Y with free school meal entitlement (FSME) when he was out of education.
5. Breached data protection regulations.
6. Did not deal with Y’s exclusion from his previous school.
7. Did not take on children’s social care duties from another council once Miss X moved into its area.
2. Miss X says the Council’s actions caused her and Y uncertainty and distress and affected Y’s educational opportunity. She wants the Council to compensate Y for missed education and meal entitlement and for her time and trouble pursuing her complaint.

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What I have and have not investigated

3. I have investigated complained a) to d) above. I have not investigated:
• (e) as Miss X may raise this with the Information Commissioner’s Office (ICO) which is the correct organisation to address her complaint.
• (f) as we cannot investigate what happens in schools. Miss X also confirmed she appealed to Y’s previous school.
• (g) because this is premature; Miss X has not yet completed the Council’s complaints process.

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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’. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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)
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 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.

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How I considered this complaint

10. I considered information provided by Miss X and discussed her complaint with her. I also made enquiries with the Council and considered its response and evidence provided.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law, Policy and Guidance

Full-Time Education

12. 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))
13. The education provided by the council must be full-time unless the council decides 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)
14. A child reaches compulsory school-age on or after their fifth birthday. If they turn five between 1 January and 31 March, then they are of compulsory school-age on 31 March.
15. In the Council’s area Spring term ended on 8 April 2022 and children returned to school on 25 April 2022.

Education Health and Care Plans

16. A child with special educational needs (SEN) may have an Education, Health and Care (EHC plan). This sets out the child’s needs and what arrangements should be made to meet them. This includes details of the child’s school or educational placement.
17. 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. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• as part of the assessment councils must gather advice from relevant professionals. Those consulted have a maximum of six weeks to provide the advice.
• if a council decides to issue a plan it must give the child’s parent or the young person 15 days to comment on a draft EHC plan and ask for a particular school or other institution to be named in it.
• the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• 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).
18. The EHC plan is set out in sections which includes the child or young person’s special educational needs, the special educational provision needed by the child or the young person and the name and/or type of school. 
19. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 ss1&2 Children and Families Act). 
20. Alternative provision must be arranged in line with a child or young person’s EHC plan. (SEN Code, Section 10.42)
21. Parents of children under compulsory school-age can:

• Ask for a particular maintained nursery school to be named in their child’s EHC plan. The local authority must name the school unless it would be unsuitable for the age, ability, aptitude or SEN of the child, or the attendance of the child there would be incompatible with the efficient education of others or the efficient use of resources.
• Make representations in favour of an independent, private or voluntary early year setting for their child. If the local authority considers such provision appropriate, it is entitled to specify this in the plan and if it does, it must fund the provision.
• However, the local authority cannot require an independent, private, or voluntary setting to admit a child, unless the setting agrees. The local authority should ensure that parents have full information on the range of provision available within the authority’s area and may wish to offer parents the opportunity to visit such provision.
• Where a parent does not make a request for a particular nursery or school, or does so, and their request is not met, the local authority must specify mainstream provision in the EHC plan unless it would be against the wishes of the parent or incompatible with the education of others. The local authority can rely on the exception of incompatibility with the education of others only if it can show that there are no reasonable steps it could take to prevent incompatibility.

Free School Meals

22. The government’s national guidance says some children are entitled to Free School Meals (FSM). This includes all infant schoolchildren (Reception, Year 1, and Year 2) who attend a Local Authority funded school and other primary and secondary schoolchildren if their household received certain qualifying benefits.
23. The Council adopts the FSME government guidance. Parents must make an application to the school or local authority for assessment as to their child’s eligibility. The Council’s website provides the online application form and further information.

What happened

24. Miss X moved with her family to the Council’s area, but her son (Y), aged four continued to attend primary school outside the area.
25. On 30 September 2021 Miss X sought an EHC assessment for Y. The Council enquired with Y’s school and obtained evidence.
26. On 19 October, Y was permanently excluded. Miss X told the Council Y was out of education and sought help.
27. On 28 October, a Council officer visited Miss X. The officer advised Miss X she could apply for a new school, find a local nursery placement, or contact the Council’s SEN department for further help. Miss X was also told Y could remain at home until he reached compulsory school-age. In Y’s case, his date of birth meant he reached this point on 31 March 2022.
28. On 5 November the Council sought Y’s Umbrella Pathway report (‘the Report’). This is a diagnostic assessment to assess for autism spectrum disorder. The Council wanted the report by 17 December.
29. Miss X later contacted the Council and enquired about a SEN school for Y. The Council suggested Miss X access funding for Y to attend a mainstream nursery until his EHC plan was completed or a suitable school was found. The records say Miss X tried to find a local placement but was unsuccessful.
30. On 15 November, the Council agreed to Y’s EHC assessment. Y’s final EHC plan was therefore due by 17 February 2022.
31. Y’s case was then taken to a special school panel. The records say the panel caseworkers reported local SEN schools would be full. The evidence provided does not explain what further steps the Council took to confirm the position with the schools. The panel recommended an interim specialist nursery placement for Y if a school could not be found.
32. The Council therefore tried to find a mainstream school or a nursery with support. The Council identified schools A, B and Nursery C and sent consultations. Schools A and B declined but the Council records do not say why and what it did to address those reasons. The records say nursery C was already at capacity and believed Y would lack a peer group because of his advanced age.
33. On 3 December, the Council agreed to consult nursery school D. It was noted as Miss X’s parental preference. Nursery school D initially said it could take Y but wanted updated reports (including Y’s EHC plan and the Umbrella pathway assessment) to consider its suitability. It later decided it could not meet Y’s needs as it believed Y needed a more specialist placement. The Council records do not explain the steps the Council took at this point to address nursery school D’s concerns or challenge its refusal.
34. In early January 2022, the Council told Miss X she would have to go through the normal admissions process for nursery school D.

Y’s EHC PLAN and Mainstream School Consultations

35. Y’s draft EHC Plan was issued on 21 January 2022. The plan confirms Y has complex needs and would need to be in full-time education, learning with his peers but with much 1-2-1 adult support. It also said “A plan will need to be agreed between Y’s new education setting and home to enable a step-by-step transition. This should consider the difficulties Y has had in separating from his mum.”
36. Y’s final EHC plan dated 15 February states he should be in mainstream education but does not name a nursery or school. The Council then consulted school E, but it was already at capacity and did not accept children Y’s age. The Council decided to chase nursery school D again but could not secure a place. The Council also tried to find Y an interim Pupil Referral Unit placement. However, did not accept children Y’s age.
37. In early April the Council’s complex communication needs team advised Y was not ready for a mainstream or a specialist setting. It said Y needed a structured package of educational support. The Council therefore decided a mainstream school was no longer suitable.
38. The Council noted the delay in receiving Y’s Umbrella pathway report and sent a fast-track request. The Council also engaged with an alternative provision provider (‘the AP’) to help Y transition back into education.
39. On 7 April the Council issued a notice to amend Y’s EHC plan. It confirms his Autism diagnosis, and the plan to change his school placement type to a specialist setting.

Specialist School Consultations and Alternative Provision

40. In early April the Council arranged an informal meeting with Miss X and the AP. The AP recommended a re-engagement plan. It was noted that Miss X did not think the hours were adequate. However, the AP explained this was the correct amount, so Y did not detach from learning.
41. The Council wrote to Miss X to confirm she was happy with the alternative provision with the AP (above). It also reassured Miss X it was consulting new specialist schools (school F, G and H) to try and secure Y a place.
42. On 13 April, the Council sent its formal referral request to the AP. The Council also consulted school F. The Council then sought updates on 25 April, but school F advised it was only suitable for older children.
43. On 26 April, the Council consulted school G. The records say Miss X was happy for Y to attend school G. However, the Council said it needed the Umbrella Pathway report (‘the Report’) before confirming Y’s placement as school G was a mainstream Autism base. The Council received the Report on 11 May and then confirmed to Miss X that Y would be on roll at school G from September 2022. School H responded in mid-May and offered a place but by this time school G was already secured.

Gradual Transition to Full-Time Education

44. The Council later explained to Miss X it was in Y’s best interests to gradually integrate into school G with part-time attendance from the summer term. However, Miss X had concerns about how the transition would work.
45. The records indicate the alternative provision with the AP was also adjusted. The AP advised it better for Y to have a few one-hour play and therapy sessions given his acceptance at school G. This would prevent introducing too many adults and affecting his attachment needs. The records say the Council discussed this with Miss X who also agreed.
46. The Council confirmed it was unable to secure Y’s alternative provision which was due to start from 23 May. He was therefore at home until he started at school G on 6 June. Miss X told me Y only attended school G for one or two hours a day which was not enough to meet his needs.
47. Y’s final amended EHC plan is dated 24 June. It names school G, an Enhanced Mainstream Autism base, and recommends a plan be agreed between the new education setting and home (Miss X) to enable a step-by-step transition to full time education because of Y’s attachment needs.

Miss X’s complaint and Council responses

48. Miss X complained to the Council saying Y’s special educational needs were not being met.
49. In its stage 1 response, the Council:
• Accepted its duty to meet Y’s final EHC plan. However, it did not accept any failure for delays from 25 April onwards.
• Explained it did not have a legal duty to find alternative provision for Y until he became compulsory school-age.
• Explained the decision to provide a gradual transition to full-time education was taken in consultation with Miss X and other SEN professionals.
• Assured Miss X it had secured support for Y to be on roll at school G from the Summer Term on a supportive transition plan.
50. Miss X was not satisfied with the Council’s response and escalated her complaint. She also said Y did not receive any free school meal entitlement (FSME) when he was out of education.
51. In its stage 2 response, the Council said it was not appropriate to progress Mrs X’s complaint to stage 2. This was because it was satisfied its stage one response adequately addressed her complaint issues.
52. Unhappy with the Council’s response Miss X approached the Ombudsman.

Our enquiries

53. Miss X told me she did not make an application for Y to get free school meal entitlement (FSME) when she moved. She said Y was already receiving FSME at his previous school and her other children automatically received FSME at their new schools, so she assumed it was the same for Y.
54. The Council said Y started receiving FSME from mid-September 2022. It explained when a pupil transfers schools the records show if there was a benefit related FSME eligibility at the previous school, but Y’s record did not. The Council does not backdate free school meal claims which are paid from the point of the application being made.

Was there fault and did it cause injustice?

i) Miss X says the Council failed to provide her son (Y) full-time education or a suitable alternative provision between October 2021 and June 2022.

55. Miss X had a right to appeal the final EHC plan issued in February 2022 and could have appealed to the Tribunal for a school to be named. However, as Miss X expected the Council to find a school place shortly, I consider it was not reasonable for her to appeal. I will exercise discretion to investigate.
56. Between October 2021 and 31 March 2022, Y was not compulsory school-age and so the Council had no duty to provide alternative provision. However, in September, Miss X sought an EHC needs assessment for Y. From this point the Council had to follow the Code as set out in paragraph 17 (above).
57. The Code required the Council to name Miss X’s preferred nursery school in Y’s EHC plan, unless it met the exceptions criteria as set out in paragraph 21 (above). The records suggest Miss X wanted nursery school D, which was consulted but declined. The Council records do not explain the steps it took to understand and address nursery school D’s refusal. I am therefore unable to reach a finding as to whether it met the exceptions criteria. The Council consequently could not name school D in Y’s EHC plan. the Council did not follow the correct process with regards to naming Miss X’s parental preference, which is fault. This was a missed opportunity to get Y into a suitable school. This meant Y missed out on nursery education from the date of his final EHC plan 15 February, until 31 March 2022 which also caused Miss X uncertainty and distress. This is injustice.
58. The Council also consulted other nursery schools during Y’s EHC planning process. The Council’s records say the panel noted the local SEN schools would be full (paragraph 31) but do not say how this information was confirmed. They also do not show if the Council had any further discussions with these schools to try to secure Y a place. The Council consulted schools A, B and nursery C but the records do not show how those consultations were progressed or explain what the Council did to challenge refusals from these schools. The Council’s failure to proactively engage and identify a school place through the EHC process is fault. Y missed education between 15 February and 31 March as a result. And Mrs X suffered uncertainty and distress. This is injustice.
59. The Council had a duty to provide Y suitable alternative provision from 31 March 2022, once he became compulsory school-age. However, the records show Y did not receive any alternative provision between 31 March and 6 June 2022. This is fault which caused Y to miss out on education and Mrs X further uncertainty and distress. This is injustice.
60. When recommending a remedy, we seek to remedy the injustice caused because of identified fault. Where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month. The amount considers a variety of factors including the child’s special educational needs and whether any partial provision was made.

ii) Miss X says the Council delayed issuing Y’s EHC Plan

61. The records indicate the Council met statutory timescales set out in the Code as set out in paragraph 17 (above). It confirmed its agreement to assess Y’s EHC needs within 6 weeks of Miss X’s request. It gathered evidence from other professionals and the final EHC plan was issued on 15 February 2022, two days before the deadline. I do not find the Council delayed issuing Y’s EHC plan.

iii) Miss X says the Council did not provide Y adequate hours of education from June to September 2022

62. Y’s final EHC plans in February and June 2022 advise a gradual transition back to full-time education. The Council explored this with the AP who also recommended this approach. The records show the Council discussed this with Miss X who also agreed. I am satisfied the Council followed the proper decision-making process. I do not find fault with this point.
63. Mrs X said Y attended school G for a few hours each day until September which was inadequate. She believed he needed longer sessions. But the Council arranged the transition hours in keeping with the law and Y’s EHC plan. It also considered the views of SEN professionals to ensure the plan was in Y’s best interests. It exercised its professional judgment and was within its rights to reach this decision. I did not find any evidence of fault in the Council’s decision making.

iv) Miss X says the Council did not provide her son (Y) free school meal entitlement when he was out of education

64. I note Miss X raised the FSME issue in her escalation request and the Council had an opportunity to address it in its stage 2 response but did not. I therefore considered it reasonable to exercise discretion to also investigate this issue.
65. Miss X did not apply for Y to get free school meal entitlement (FSME) as she assumed it was automatically transferred from the previous school. The Council follows the government guidance which requires parents to make applications to check their child’s eligibility. The Council confirmed its records do not show Y was in receipt of FSME at his previous school. Without an application the Council’s FSME team would not have been aware of Y’s situation to make such arrangements. I therefore do not find the Council at fault for failure to provide Y with FSME entitlement.

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Agreed action

66. The Council should within a month of my final decision:
• Write and apologise to Miss X for failing to provide her son (Y) with education or suitable alternative provision from the date of his EHC plan, 15 February until 6 June 2022.
• Make a payment to Miss X of £1400 to remedy the failure to provide Y with education or suitable alternative provision between 15 February and 6 June 2022.
• Make a payment to Miss X of £250 in recognition of her uncertainty and distress.
67. The Council should provide us with evidence it has complied with the above actions.
68. The Council has accepted my recommendations.

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Final decision

69. I find the Council at fault for failing to provide Y education or a suitable alternative provision between 15 February and 6 June 2022. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman