Summary: the complainant Ms X complained the Council failed to provide suitable educational provision for her child or offer any alternative provision once he reached compulsory school age. The Council says it provided suitable educational provision but did not issue an amendment as early as it should. We found the Council at fault. The Council agreed to apologise, pay £200 in recognition of the distress caused and to share the decision with staff to improve services.

The complaint

1. The complainant I shall refer to as Ms X says the Council failed to properly consider providing alternative educational provision for her son, Y. Y has an EHC Plan but remained out of this reception class for a full academic year.
2. Ms X says this resulted in Y missing early leaning opportunities but also delayed his development of important social skills.
3. Ms X wants the Council to recognise it acted with fault in failing to provide alternative provision and address that lost provision.

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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. If 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)

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How I considered this complaint

6. In considering this complaint I have:
• Contacted Ms X and read the information presented with her complaint;
• Put enquiries to the Council and studied its response;
• Researched the relevant law, guidance, and policy.
7. I shared my draft decision with Ms X and the Council and reflected on the comments received before reaching this my final decision.
8. 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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What I found

9. A child becomes of compulsory school age after the age of five. Depending on the child’s date of birth, they will become of compulsory school age on 31 December, 31 March or 31 August following their fifth birthday. Therefore, Y became of compulsory school age on 31 March 2021.
10. The Education Act 1996 (Section 19) and statutory guidance issued under the Act set out the rules on alternative provision. They say councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
11. Statutory Guidance “Alternative Provision” says the Council has a duty to make alternative provision as soon as possible so children may match the achievements of children in mainstream education.

What happened

12. The family moved to Kent in September 2020. Y already had an EHC Plan which named a local maintained primary school. On his move to Kent the Council became responsible for providing the educational provision set out in the EHC Plan. The Council says it secured a placement at the nearest suitable mainstream school, School Q, within four weeks of Y’s arrival.
13. Ms X says School Q could not meet Y’s needs. The Council said it would review the EHC Plan in twelve weeks in line with the Code of Practice. Ms X said she preferred Y to attend a specialist school. The Council said it would consider her view when it reviewed the EHC Plan. During this time the Council says it consulted with several specialist schools, one offered a placement, but Ms X felt the distance too far for Y.
14. The Council says when looking at alternative educational provision it does not consider students under statutory school age. Before a child reaches that age, the Council is not under a duty to provide alternative education. It says Y did not need alternative provision anyway because he had a placement at a named school. In October 2020 the Council’s provision evaluation officer discussed Y’s needs with Ms X to see if the Council could offer a way forward. The Council says it offered support at School Q, but Ms X declined this offer.
15. On reviewing the EHC Plan the Council issued a Final Amended EHC Plan on 29 January 2021 naming a local maintained mainstream primary school for Y. Mrs X appealed the EHC Plan.
16. Ms X says the Council denied Y suitable provision and no alternative provision while awaiting a placement leading to his learning and progress declining. Ms X says this has caused Y and his family great distress and anxiety.
17. In its response to Ms X’s complaint the Council apologised for not issuing an amendment notice when Ms X refused the placement offered on her arrival.
18. Although Y reached compulsory school age in March 2021 there is no evidence of the Council considering whether Y now became eligible for alternative provision.

Analysis – was there fault causing injustice?

19. My role is to consider how the Council complied with its statutory duties and considered the alternatives available to it. It is not to decide what provision Y needs that is more properly dealt with by the Tribunal on appeal.
20. The Council did not issue an amendment when Ms X declined the offer of a placement at School Q. It should have done so . It should also have begun the review of the EHC Plan immediately. It did not. That delayed the issue of the EHC Plan, delaying Ms X’s right of appeal and the decision on that appeal. I find the Council acted with fault.
21. On reaching compulsory school age in March 2021, I would expect to see evidence the Council considered its duty to provide Y with alternative education because he was not attending the named provision. I have not seen evidence of such a review. The Council has not shown evidence of how on review in March 2021 it could show why it did not owe Y a duty to provide alternative provision. If the Council could show why this duty did not arise then Ms X can reasonably expect it would tell her when Y reached compulsory school age. I find the Council at fault for failing to consider its duty and explain its view. This denied Ms X the opportunity to challenge that view.
22. Until March 2021 the Council did not have a duty to provide alternative provision that being a right only applicable to children of compulsory school age. The Council had provision in place at School Q which in the professional judgement of its officers could, with further funding, provide for Y’s special educational needs. I cannot question that judgement that is for the Tribunal. The Council had provision available and so I find it acted without fault in ensuring Y had that placement.
23. The Council accepted fault in its failure to issue an amendment notice when Ms X refused the placement at School Q . It apologised. The failure to consider alternative provision in March 2021 caused further avoidable distress for Ms X and Y. When looking at a remedy we try to place people in the position they would have been but for the fault. If that is not possible then our “Guidance on Remedies” recommends a symbolic payment in recognition of the injustice caused.
24. The law prevents me from recommending a remedy for any lost provision during the period between the appeal and the Tribunal’s decision. Therefore, I cannot offer a remedy for any lost alternative provision from March 2021.
25. Ms X and Y have experienced avoidable distress and anxiety arising from the delay in issuing an amended EHC Plan, review, and failure to consider the duty to offer alternative provision. Our “Guidance on Remedies” recommends symbolic payment within the range of £100 to £300 for such distress.

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Agreed action

26. To address the injustice arising from the faults identified the Council agrees that within four weeks of my final decision the Council will:
• Write an apology to Ms X and to Y;
• Pay Mrs X £200 in recognition of the avoidable distress caused;
• Share this decision with staff to remind them of the need consider alternative provision when a child reaches compulsory school age.

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Final decision

27. In completing my investigation, I find the Council acted with fault causing injustice for which it has agreed a remedy.

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Investigator's decision on behalf of the Ombudsman