Summary: Miss X complained the Council failed to ensure her son, Y, received suitable full time education once his school placement ended causing distress and financial hardship. We found the Council at fault. We recommended the Council provide Miss X with an apology; pay £900 for Y’s missed education; pay £500 for distress; pay £180 for costs incurred and; act to prevent recurrence.

The complaint

1. Miss X complains the Council:
• failed to give notice that her son’s school placement would end in October 2021;
• has not secured a school place for her son or provided suitable alternative provision since his placement ended;
• refused a personal budget for her to use to meet her son’s educational needs;
• delayed completing the Education, Health and Care Plan (“EHCP”) review process.
2. Miss X says her and her son have suffered distress and upset. She is struggling to meet his needs and facing financial hardship.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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)
6. 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)
7. 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))
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.
9. 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

10. I spoke to Miss X and I reviewed documents provided by Miss X and the Council.
11. I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

SEN Code of Practice; Annual Reviews

12. Councils must review an Education Health and Care Plan (“EHCP”) at least every 12 months.
13. Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
14. Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
15. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
16. If a child’s parent asks for a particular school the council must usually name the school in the EHCP unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.
17. However, there is an exception in respect of independent special schools. In those cases a council must consider that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. Further, it should be satisfied the institution would admit the child or young person before naming it in a plan since these providers are not subject to the duty to admit a child even if named in their plan.
18. When the parent suggests changes to the EHCP that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
19. Where the council does not agree the suggested changes it may still issue the final EHCP.
20. In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Jurisdiction

21. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407 (‘the Hillingdon judgment’).
22. The Hillingdon judgment reconfirmed that we cannot investigate a decision where it has been or could reasonably be appealed to a tribunal, it also said we cannot consider the consequences of that decision. This would include any alleged injustice arising due to a school not being named on an EHCP.

Right to Education

23. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
24. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
25. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.

Personal budgets

26. A Personal Budget is an amount of money identified by the council to deliver provision set out in an EHCP where the parent is involved in securing that provision.
27. The child’s parent may request a Personal Budget during a statutory review of an existing EHCP.
28. Personal Budgets should be focused to secure the provision agreed in the EHCP and designed to secure the outcomes specified.
29. If a council refuses a request for a direct payment for special educational provision it must set out reasons in writing and inform the child’s parent of their right to request a formal review of the decision.
30. The council must consider any subsequent representation made by the child’s parent and notify them of the outcome, in writing, setting out the reasons for their decision.

Principles of Good Administrative Practice

31. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes keeping proper and appropriate records.

What happened

32. In 2021 Y was in Year 5 at an independent special school, School A. Y had an EHCP which set out strategies and programmes for school staff to implement. In terms of specific provision the EHCP included access to a safe space and access to a key worker.
33. School A says it gave notice to end Y’s placement on 15 July 2021. It does not specify who it gave notice to.
34. The Council started consulting with other schools for Y, on or before 19 July 2021. Internal correspondence between Council officers shows the Council took this action because the placement at School A had broken down. One email refers to the Council discussing one school option with Miss X.
35. An annual review of Y’s EHCP took place on 20 July 2021. The Council has not provided a copy of any minutes from this meeting. However, it has provided a copy of School A’s report, dated 20 July. In this document School A reports it can no longer meet Y’s needs and the Council needs to find a new placement. School A explained that Y’s anxiety had resulted in his timetable reducing to just one hour per day and then online only lessons.
36. On 29 September the Council issued a draft EHCP. This amended Y’s provision to include 1:1 support; regular off site trips and; increased access to therapeutic sessions. It named School A.
37. On 21 October School A told the Council it had given notice in July to end the placement in October. However, Miss X had said she was unaware of this and wanted Y to remain at School A.
38. On the same date Miss X complained to the Council that School A had told her Y’s placement would end on 22 October, that she was previously unaware of this and, that School A said it gave notice to the Council in July.
39. In its complaint response of 9 November 2021 the Council said:
• The Annual Review documents showed School A told her during the review it was giving notice.
• It could not name School A in an EHCP without its agreement and so needed to identify another placement.
• On 22 October it had offered tuition to Y in the interim but she had refused this.
• It apologised for its delay in the EHCP process. It had now sent consultations to two schools and asked if she wanted to suggest any other schools for consultation.
40. The Council has evidenced it consulted with 13 schools between November 2021 and June 2022 to no avail. The Council has provided paperwork in support.
41. In consultation letters to schools the Council said it must consider the following before naming a school as being appropriate for the child concerned:
• It would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• The attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.
42. The Council said “In order to assist the Local Authority in this process you will need to carefully consider each question on the response form in order to ensure that the correct pupils are placed in the most appropriate provision. You need to be aware that the fact your provision may be full is not in itself a reason to refuse placement. If you are unable to meet this pupil’s needs, it would be helpful if you could provide a detailed explanation for this.”
43. The documents provided by the Council show at least two schools said they could meet Y’s needs but they simply did not have space.
44. In response to enquiries the Council said it had consulted with 18 schools in total and continued to look for a suitable placement.
45. On 30 November 2021 the Council considered a request for a personal budget to allow Miss X to pay for provision to meet Y’s needs while he was not in school. The Council’s records show it declined the request because it would not be an appropriate use of public money and it considered a school place would allow for effective delivery of the EHCP outcomes.
46. On 3 December Miss X asked the Council to review her complaint at stage 2.
47. On 10 December Miss X complained the Council had refused a personal budget.
48. On 17 January 2022 the Council apologised for its delay providing a stage 2 response. It said it would respond by 31 January 2022.
49. The Council responded to the complaint and review request on 10 February 2022. In summary it said:
• The activities identified by Miss X would not appropriately address Y’s SEN as set out in his EHCP.
• Its priority was to secure a suitable school place.
• It asked Miss X to reconsider its offer to provide home tuition as this would ensure Y had access to a suitable education until it could secure a school place. It could also arrange an online learning package if preferred.
50. I note the Council did not offer any further comment regarding the complaint about lack of notice ending the school placement.
51. On 15 February 2022 the Council issued a final EHCP naming a type of setting only; special school. I note the EHCP mirrors the previous, with additional 1:1 support. The Council’s accompanying letter outlines the right to appeal.
52. When I spoke to Miss X in May 2022 she said she refused tuition as she did not consider it appropriate to have someone in the home which was Y’s safe space. The Council later re-offered tuition and arranged for the tutor to meet them in the local library however they still attended the home on occasion. Miss X explained she was incurring costs on caring for her son at home including on meals. This was because when he was at school he qualified for free school meals.
53. In response to enquiries the Council said:
• Ofsted had identified shortfalls in its SEN department and the Department for Education had appointed a commissioner to hold the Council to account in making the required improvements. This included action to progress EHCP reviews more quickly.
• It had since increased staffing and introduced a placement team that was now working with Miss X.
• It provided Y approximately 10 hours of tuition each week, depending upon his ability to access individual tutoring. It had also agreed to fund cooking lessons.
54. In comments on a draft decision the Council said, in summary:
• It listed the types of schools consulted, noting that most were independent schools where the duty to admit if named in an EHCP did not apply. However, it accepted it should have sought additional information from two schools that were special academies. It should have been satisfied that Y’s attendance would have been incompatible with the efficient education of others before deciding that it could not name these settings.
• Its delay in consulting schools from July 2021 to November 2021 was due to the service being significantly understaffed. It has since addressed this.
• Y has a complex and unique profile of needs which has made identifying a suitable full time school placement very difficult.
• The Council does not agree that it has only made “some efforts” given the number of schools consulted or that it is at fault “because it has not secured a school place for Y in good time” considering Y’s complex needs. In the meantime it has arranged interim provision which is suitable and meeting Y’s needs.
• Miss X had the right to appeal the final EHCP of 15 February 2022 but did not.
• It is aware of its duty under s.14 Education Act 1996 to ensure there are sufficient school places in their area for children of compulsory school age. Since 2018 the Council has invested £31 million in capital funding to expand the capacity of special schools within Birmingham. The Council has recently undertaken both capacity assessments and sufficiency planning in relation to special schools and has been awarded another £27 million in the latest SEND capital funding. The Council is exploring options to expand existing schools, create new schools and improving inclusivity within its mainstream settings.
• Y attended an independent special school and therefore would not have been eligible for free school meals. It has a discretionary power under s.513 of the Education Act 1996 to provide funds for meals to other settings. With independent settings, this is added to the fees and the Council pays this for pupils with EHCPs. Based on the Council’s records, School A did not request costs for free school meals for Y. However, if Miss X could provide evidence that Y would be eligible for free school meals, it would agree to provide payment in line with the funding it would have provided to School A.
• The annual review report is the record of an annual review meeting, and it is not a requirement for separate minutes of these meetings to be taken.
• Within the annual review report there are recorded statements about School A’s view that it can no longer meet Y’s needs and a new placement needing to be secured. Miss X was present at this meeting and therefore the Council maintains that she was aware of this.
• The Council’s view is that the proposed remedy for Miss X’s distress is not in line with the LGSCO’s remedies guidance.
• It has already provided staff with comprehensive training on the consultation process and legal tests for naming settings on 03/03/2022, 10/03/2022, and 17/03/2022. It encloses a copy of the material/slides for this training.
55. In comments on a draft decision Miss X said:
• The whole of the July ECHP review was discussing and forming a plan for September 2021.
• She has enclosed correspondence as proof that a plan was made; at no point was she aware of the termination.
• She is frustrated the Council refuses to accept she was not made aware of the placement termination.
• She did not pay for Y’s meals at School A and she would qualify for free school meals in general as she receives Income Support, Child Tax Credits and is on a low income. She has provided a copy of a letter from the Job Centre confirming she receives Income Support.
• She was unaware she could appeal due to no suitable setting being available or that this would help Y.
• The tutor often failed to turn up, gave last minute excuses, and did not follow a routine meaning Y was unable to access the tutoring.
• Y still has no placement.
• It has been very challenging having Y at home and she receives little respite.
• She has incurred costs seeking education for Y.
• Y has missed out on key school moments and is often isolated at home.
• She asked the Council to arrange a placement she had found, that would meet all of Y’s needs, but it refused.
• Sections I and J of Y’s current EHCP are blank.

Findings

Notice

56. I cannot consider what happens in schools. However, I am satisfied the Council knew in July 2021 Y’s placement was due to end and, given it was looking for an alternative school it should have done so in discussion with Miss X. There is a lack of evidence the Council told Miss X the placement was due to end or properly liaised with her regarding alternatives in July 2021. This is fault. The limited evidence suggesting the Council took a view from Miss X on one school is not sufficient to find otherwise.
57. The Council told Miss X its records of the annual review meeting showed she received notice from School A. However, I do not agree. While School A did report that the Council should find a new placement it did not give a date when Y’s placement would end. And, there is no evidence of what was actually said during the meeting as the Council did not take minutes. We consider it good practice for councils to keep minutes of key meetings such as the annual review. The lack of such a record amounts to fault.
58. I am satisfied on balance that Miss X did not expect Y’s placement to end when it did and she suffered distress as a result. This is injustice.

Providing education

59. The Council has not yet secured a school place for Y. However, I will only consider any fault and injustice in this respect up to the point it issued a final EHCP on 15 February 2022. This is because Miss X had the right to appeal to the Tribunal if she was unhappy the Council had only named a setting, rather than naming a school. And I consider it was reasonable for her to use that right. I acknowledge Miss X felt an appeal would not assist her in securing a school place for Y any sooner however it remained open for her to appeal if she wished. And it would remain up to the Tribunal whether to consider any late appeal.
60. The Council consulted with some schools in July 2021 but there is no evidence it then took further action to find Y a new school until November 2021. This delay is fault. The Council explains this was due to understaffing that it has since addressed.
61. The records suggest the Council did not follow a proper decision making process when consulting with schools from November. It appears to have to dismissed schools which said they were full, even though this is not the correct test to apply in deciding whether to name a school. This is fault. While I acknowledge this test did not apply to some schools, it remains there were two academy schools where the Council did not follow the correct process. The Council has evidenced it has since provided further training to staff.
62. I acknowledge the Council has struggled to find Y a suitable school place, despite its efforts, as Y has complex needs. However, we can criticise a Council for failing to ensure there is sufficient local provision. I therefore find the Council at fault in this respect. I note the Council has outlined action taken to address this. I will also make a recommendation to ensure the Ombudsman is updated on this.
63. When a child is out of school the Council should arrange suitable alternative provision. Once Y’s placement ended the Council offered tuition. I am satisfied it met its duty in doing so. That Miss X refused this is not through any fault of the Council. I acknowledge she had reasons for refusal however there is a lack of evidence she gave the Council chance to address any concerns at the time. I note the Council has since reoffered tuition which has been accepted. Any complaints Miss X has regarding this tuition are premature.
64. Because of the Council’s fault, as set out at paragraphs 60, 61 and 62, there were missed opportunities to secure a school place for Y and he remained out of school for longer than he should. While alternative provision has been available this is not usually equal to full time education in school, given the limited hours, lack of interaction with peers, lack of a full curriculum etc. I am therefore satisfied Y has suffered an avoidable loss of education and distress while out of school from 22 October 2021 to 15 February 2022. This is injustice.
65. As to the remedy for loss of education I have taken account of Y’s age, SEN, that he was in an important school year and that alternative provision was available. Our remedies guidance suggests a payment at the lower end of the range of £200 to £600 per month is appropriate in these circumstances. I will recommend a remedy of £300 per month based on approximately three months’ missed term time.
66. I consider it more likely than not that the Council’s payments for School A included school meals. And if the Council had named an academy school Y would have qualified for free school meals. I am therefore satisfied that because of the Council’s fault Miss X has incurred additional food costs due to having Y at home. This is injustice. The costs Miss X has incurred are unlikely to be equivalent to the funding the Council would have given School A. And I would not expect Miss X to have kept a record of her additional costs. I consider £3.00 per school day is a fair approximation.
67. Miss X has also suffered distress and disruption due to having Y at home for a long period. This is injustice.

Personal budget

68. The Council initially refused a personal budget taking into account that a school would deliver provision. However, this appears to overlook that Y did not have a school place. Upon its review, the Council seems to have taken account of relevant information, including that Y remained out of school and, it gave clear reasons for refusing the budget. While I recognise Miss X disagrees with the Council’s judgement, I am unable to find fault in its decision making.

The EHCP review process

69. The Council should have issued Y’s final EHCP by 5 October. However, it did not issue this until February 2022. This is fault. I am satisfied this delay caused Miss X avoidable distress and uncertainty. And it delayed her right to appeal. This is injustice. I note the Council is already taking action to improve its timeliness.
70. The Council delayed responding to Miss X’s complaint and then offered no further comment on her complaint about lack of notice. This is fault. Miss X suffered avoidable distress and uncertainty as a result. This is injustice.

Premature matters

71. The Council provided its final response to Miss X’s complaint on 10 February 2022 and I have investigated the matters raised through that complaints process. I acknowledge Miss X has raised further issues in comments on a draft of this decision. This includes concerns about the tuition provided; that the Council refused a placement she found and; dissatisfaction with the latest EHCP. However, it is reasonable to allow the Council to investigate and respond to these matters before they are considered by the Ombudsman. And it is not appropriate to add new matters to this investigation at this stage. I have therefore not investigated these points.

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Agreed action

72. To remedy the injustice set out above the Council should carry out the following actions:
73. Within one month:
• Provide Miss X with a written apology for the identified faults;
• Pay Miss X £900 in recognition that Y has missed education in school;
• Pay Miss X £500 for the distress and uncertainty suffered by her and Y;
• Pay Miss X £180 to reimburse the additional costs incurred on food;
74. Within three months;
• Remind staff within its SEN team of the need to keep minutes of key meetings, such as annual reviews;
75. Within six months;
• Consider how the Council can improve access to special school places and devise an action plan to share with the Ombudsman. This should include timeframes for action.
76. The Council has accepted my recommendations.

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Final decision

77. I find fault the Council at fault because it delayed in the EHCP review process and did not take proper action to secure a school place for Y. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman