Summary: There was fault by the Council. The Council accepted that Y’s college placement was unsuitable in April 2022 but there were delays in getting new educational provision. The Council has apologised and offered a payment towards the lost educational provision for Y and Ms X’s stress. Events after October 2022 are outside jurisdiction, as Ms X has appealed to the SEND tribunal.

The complaint

1. The complainant, who I shall refer to as Ms X, complains for her child Y.
2. Ms X complains her child has had no education since December 2021 as a post-16 college place did not work out. Ms X says that this has caused her and her child’s mental health to decline.

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What I have and have not investigated

3. I have investigated the complaint that the Council has not put in place the provisions in the Education, Health and Care (EHC) plan since December 2021 until the Council issued the final EHC plan on October 2022.
4. I have not investigated the complaint about the contents of the EHC plans. This is because Ms X has appealed to the SEND tribunal and they have or will make a decision on these points.
5. From October 2022 onwards, the failure to put in place provision is caused directly by the failure to name a placement in Section I of the EHC plan to fulfil it. As the complaint about the failure to provide the provision in the EHC plan from October 2022 is inextricably linked to the matters Ms X has appealed to the SEND tribunal on, I cannot investigate after this date.
6. I cannot investigate the complaint that no alternative educational provision has been put in place until the tribunal hearing. The Education Act 1996 (Section 19) says that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. There is no post-16 duty, which means alternative provision is not required after the final Friday in the June of the academic year in which the child turns 16 (Year 11 for most children). As Y is over the age of 16, the Council does not have to provide alternative educational provision.

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The Ombudsman’s role and powers

7. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.

8. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

9. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
10. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
11. 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)
12. 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

13. I read the papers put in by Ms X and discussed the complaint with her.
14. I considered the Council’s comments about the complaint and any supporting documents it provided.
15. Ms X and the organisation 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

Key facts

16. Y had a place at college to take her ‘A’ levels. This was named in an EHC plan dated July 2021. The provisions in the EHC plan were based on Y’s attendance at college and include daily check ins and support they could access throughout the day from a trusted adult. The plan says ‘a contractual agreement of what is offered and provided by her allocated adult should be discussed and agreed together’.
17. Ms X appealed to the SEND tribunal as she felt Y needed 1 to 1 support.
18. After the SEND tribunal, the Council issued a new EHC plan on 17 March 2022. This detailed the adult support she should receive but did not include specific 1 to 1 support.
19. Y did not attend college after April 2022 and there was an annual review on 27 May 2022.
20. The Council issued a new EHC plan in October 2022. This did not identify a placement. Ms X has appealed to the SEND tribunal about the contents and provision in the EHC plan. Ms X has asked for a residential placement, as there are no suitable local providers.
21. Ms X made an official complaint to the Council in December 2022. The Council said that it upheld her complaint and apologised that matters relating to Y’s educational provision and funding, which included the input from adult social care had taken too long.

My analysis

22. The Council accepted the original college was no longer suitable for Y in April 2022.
23. The Council has accepted it was at fault, in that matters relating to Y’s educational provision had taken too long. Ms X’s view is that there has been a big impact on Y and that their mental health has deteriorated without an education.
24. In response to my enquiries, the Council proposed a financial remedy for 4 months missed education (4 x £300), plus £200 to acknowledge time and stress. This is £1400.
25. Our remedy guidance recommends a payment of between £900 and £2400 per term for missed education, depending on the impact on the child. In this, Y missed just over one terms education until the Council issued the EHC plan in October 2022.
26. I consider the remedy offered by the Council is in line with our guidance. The remedy is at the lower end of the financial scale, but I do have to take into account that the Council does not have to provide alternative provision once a child is over 16 and that it was actively seeking alternatives.

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Agreed action

27. The Council should pay Ms X £1400 within one month of the date of the decision on this complaint.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation of this complaint. This complaint is upheld as there was fault by the Council. The payment to Ms X remedies the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman