Summary: Mr C complained about the Council’s failure to find an education placement for his son D since May 2021. While recognising the efforts the Council has made, we found fault which has caused D and his family significant injustice. The Council has agreed to apologise, pay £3,250 for the educational benefit of D and £300 to Mr C and consider steps to widen the availability of placements for the future.

The complaint

1. Mr C complained that Kent County Council (the Council) failed to find a suitable educational placement for his son, D since May 2021. This has caused Mr C significant frustration and distress in addition to D missing out on educational progress and social interaction. It has also caused Mr D’s family distress and time and trouble in pursuing the matter.

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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 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)
3. 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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. 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

Special educational needs

6. A child with special educational needs 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. 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.
7. 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.
8. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable.
9. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

10. Mr C’s son, D, is autistic with complex needs. He had an EHC plan and was attending a school until May 2021 when the placement came to an end because the school said it could no longer meet his needs. D was due to move to a post-16 placement in September 2021.
11. An emergency review was held on 14 May 2021 and the Council received the paperwork on 28 May 2021. In June 2021 Mr C complained to the Council about the lack of a placement for D. He said it was impossible to talk to anyone about the problem.
12. On 23 June 2021 the Council agreed to look for a new placement. In early July 2021 it consulted with five places. Only one (College Z) said it could offer D a place. The Council’s funding panel considered the offer on 18 August 2021 but refused due to safeguarding concerns raised by OFSTED in 2020. The Panel considered the offer again with more information on 24 August 2021 but deferred once more for further consideration due to the concerns raised.
13. The Council requested that some tuition be set up for D at home.
14. During September and October, the Council consulted with three more schools including a residential school in a different part of the country (College Y).
15. The Council responded to Mr C’s complaint on 21 September 2021. It apologised for the delay and the communication difficulties and said tuition was being organised for him. Mr C escalated his complaint to stage two. He questioned why the Council had taken so long to respond, he said 10 hours of tuition was not enough and it was not sustainable to have a 17 year old at home all the time. Ten hours of tuition at home started on 11 October 2021.
16. In November 2021 the Council says it offered D an extra 12 hours per week at an outdoor placement. It says it included transport there and back and that Mr C refused the offer. It has not provided evidence that this full package was offered to Mr C. Mr C said he was not aware that further 12 hours was on offer or how it was to be accessed. He took D to a site an hour from home on two occasions for taster sessions which went ok, but as he and his wife were working, he thought it would be too difficult to manage. He said the Council did not mention or offer transport.
17. On 7 December 2021 College Y offered a place. D had visited and liked it. He was very keen to start there.
18. On 21 December 2021 the Council’s funding panel considered the offer. It deferred a decision requesting further information about D’s needs and suggested referring him to the autism team in social care.
19. The Council responded to Mr C’s stage two complaint on 11 January 2022. It apologised for the continuing delay and understood his frustration. It explained it could not place D at College Y due to the concerns previously raised. It said the poor communication was in part due to remote working in the pandemic and it was still working hard to find a place for D.
20. A senior SEN officer met with the children’s social care team. They confirmed D was not an open case with them and he would soon be suitable for the adult team. The Council discussed the case at a complex case meeting on 25 January 2022. The meeting decided a residential placement was not in D’s best interests as there was no identified need for residential. It considered D would be better suited to a more local placement closer to his family. The meeting again recommended a referral to social care and a multi-agency meeting. The Council consulted another college, but it was unable to offer a place.
21. A complex case meeting and the funding panel considered the case again in May 2022 and once again refused to agree to the place at College Y. The Council considered a residential placement was not appropriate for D’s needs. It recommended the annual review should consider D’s aspirations and once again that social care should be involved. The Council consulted with another possible placement provider (College X).
22. An annual review was held and both Mr C and D expressed their wish for D to go to College Y. They were both frustrated that this had not yet happened. Mr C said D asked every day when he could start at College Y.
23. In early June 2022 the Council held a multi-agency meeting and explored Mr C’s and D’s wish to go to College Y. Mr C was also unhappy that no therapy had been provided for D after the last placement broke down. Mr C confirmed he had had no contact from social care until recently and D would now be taken on by the adult mental health team.
24. On 14 June 2022 a complex case meeting confirmed that the adult social care team was carrying out an assessment and College X had offered a place. The funding panel approved the place at College X. However, College X needed to assess D: the assessment took six weeks and it only assessed one student at a time, so it could not start the assessment until September 2022.
25. Mr C had complained to us at the end of March 2022. I made enquiries at the end of July 2022. Mr C says D started the assessment at College X on 12 September 2022.

Analysis

26. The Council has a duty to make provision for D’s special educational needs in accordance with his EHC plan. Following the placement breakdown in May 2021, D has been without a placement: a period of 16 months. I accept the Council made significant efforts to find an alternative placement for D between June and December 2021, consulting with at least eight providers. Only two of these offered a place. The Council considered one was unsuitable for safeguarding reasons and the other because D had no identified need for a residential placement.
27. However, after December 2021, despite holding several meetings and panels in January 2022 the Council offered nothing to D and only consulted with one more provider until May 2022. It is not my role to comment on the decisions made by the Council about the placements, but I can understand Mr C and D’s frustration at being told College Y was not in D’s best interests, when nothing else was offered beyond home tuition.
28. The process was repeated in May 2022 when the panel again refused College Y because a residential placement was not warranted but did not offer anything else. It was at this point the Council consulted with College X and this will hopefully result in a place in the near future following the assessment.
29. I acknowledge the Council’s view that it has done what it can to find a place but there were simply no suitable places available. However, D has been without an educational placement for 16 months and this has caused him and his family distress, frustration and time and trouble.
30. I recognise the ten hours a week of home tuition has provided D with some education, but he is lacking social engagement and a variety of activities. It is also impossible to wholly meet his needs in such a limited environment and it did not start until October 2021, five months after the previous placement broke down.
31. I am unable to reach a view on the extra tuition. The Council has provided evidence that it approved the tuition with transport, but it has not provided evidence Mr C that transport was included in the package. He says he was not aware of this and turned the package down for this reason.
32. I have concluded that there is fault in the actions of the Council which has caused D and Mr C injustice.

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Agreed action

33. In recognition of the injustice caused to D and Mr C, I recommended the Council, within one month of the date of my final decision:
• Apologises to D and Mr C.
• Pays Mr C £3,250 for the educational benefit of D: representing 15 months minus holiday periods @£300 per month with no suitable placement and only some tuition from October 2021.
• Pays Mr C £300 for the distress and his time and trouble.

And within three months of the date of my final decision:

• Considers any further action it can take to increase the choice and availability of placements for young people in D’s position.
4. The Council has agreed to my recommendations.

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Final decision

35. I consider this is a proportionate way of putting right the injustice caused to D and Mr C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman