Summary: We have upheld this complaint because the Council delayed arranging alternative education provision for Mr X’s child. The Council has agreed to resolve the complaint by offering to make a suitable payment to the complainant to remedy the injustice this caused.

The complaint

1. Mr X complains that his son, Z’s, school failed to meet the special educational needs provision detailed in Z’s Education Health and Care (EHC) Plan and this led to Z’s exclusion in October 2023. Mr X says the Council failed to arrange alternative education provision for Z following his exclusion, delayed completing the review of his EHC Plan and that communication was poor.

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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 provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
4. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
6. 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)
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

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How I considered this complaint

9. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. I will not investigate Mr X’s complaint that Z’s school failed to meet his special educational needs provision prior to his exclusion in October 2023. This is because this element of Mr X’s complaint is made late, and I see no good reason why he could not have raised it sooner.
12. Mr X is unhappy with the contents of the final EHC Plan issued by the Council. However, he has a right of appeal to the SEND Tribunal about the contents of the final plan that it would be reasonable for him to use.
13. In responding to Mr X’s complaint, the Council offered payments to him totalling £700 to remedy the distress caused by delays issuing an amended final EHC Plan and poor communications and for the time and trouble Mr X had been too raising his complaints. These payments are in line with our guidance on remedies so investigation into these matters would not lead to a different outcome.
14. However, if we were to investigate this complaint it is likely we would find fault causing Mr X and injustice. This because it delayed arranging education provision for Z following his exclusion for around two terms. Whilst the Council has tried to remedy the injustice this caused by offering Mr X a payment of £2100 it is likely investigation would find that the amount offered is not in line with our guidance on remedies. This I because Z received no provision and has an EHC Plan.
15. We therefore asked the Council Council to increase the amount offered for missed provision from £2100 to £3900. To its credit it agreed and will make the payment within one month of the date of our final decision.

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Final decision

16. We have upheld Mr X’s complaint. The Council has agreed to resolve the matter by providing a suitable remedy.

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Investigator's decision on behalf of the Ombudsman