Summary: Mrs X complained the Council failed to arrange a suitable school placement for her son and deliver the special educational provision as outlined in his Education, Health, and Care Plan. This caused a direct loss of provision and support for him, as well as distress and frustration for Mrs X. We found the Council to be at fault. We have made recommendations to remedy the personal injustice caused to Mrs X and her son. The Council has agreed to our recommendations to remedy the injustice and to take action to prevent recurrence of fault.

The complaint

1. Mrs X complained the Council failed to ensure a suitable school place for her son who has not had access to education for over a year.
2. She said the Council did not secure provision for him as outlined in his Education, Health, and Care Plan, it failed to carry out an annual review, and had poor communication with her. This caused significant distress, frustration and Mrs X said her son missed out on valuable socialising opportunities for his growth and development.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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)
6. 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

7. I discussed the complaint with Mrs X and considered her views.
8. I made enquiries of the Council and considered its written responses and information it provided.
9. Mrs X and the Council 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

Law and administrative background

Education, Health and Care Plans (EHCPs)

10. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
11. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
12. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHCP. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHCP is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

14. 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.
15. 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. We refer to this as section 19 or alternative education provision.

Background

16. Mrs X’s son, whom I refer to as “Y”, is autistic, has Global Development Delay and Intellectual Disability.
17. He had been attending a pre-school nursery placement since September 2020.
18. Between March 2021 and July 2021, the Council undertook several consultations with schools to find a suitable placement for Y in September 2021. All responded they could not offer a place for him.
19. In August 2021, the Council issued a final EHCP.
• In Section F (Y’s Special Education provision), Speech and Language Therapy (“SALT”) was a key provision named.
• In Section I (name and type of school where provision is to be delivered) it stated “[Y] is not of statutory school age. From April 2022 he will attend a special school”.

What happened

20. In September 2021, the nursery placement Y had been attending broke down. Mrs X contacted the Council to inform them he was at home with limited stimulation and about the impact it was having on her.
21. Further schools were consulted. School A said it could offer a place, all other schools could not. In November 2021, School B responded it could not offer a place.
22. In December 2021, the Council agreed to arrange home tuition as an interim measure for Y for two hours, five days a week, for a six week period. Mrs X said to me the tutor visited once and no further tuition has been provided since.
23. In January 2022, Mrs X’s solicitor issued a pre-action protocol letter to the Council under judicial review procedures. This is the preliminary stage of legal action against the Council.
24. The letter mentioned “[Y]’s parents requested that Kent consult [School B]…whose published admissions criteria he meets”. It expected the Council to “take immediate steps to arrange a school placement for Y and/or special educational provision in accordance with the requirements of Section F of his EHCP”.
25. At the end of January, the Council issued an amended final EHCP naming School B in Section I and notified School B.
26. School B responded against this. It said it had not offered a place to Y when it replied to the Council’s consultation query in November 2021. It questioned why there had been no further communication since. It could not admit a further child as it had no physical capacity, and it would affect the education of other children.
27. Mrs X contacted both the Council and School B a number of times about the named school placement. She said she had no confirmation from either about any arrangements being made for Y to attend.
28. In May 2022, School B withdrew the placement. Mrs X made a formal complaint to the Council.
29. In June 2022, the Council responded apologising for lack of communication. It said now it was aware Y was not attending School B, it would take action to resolve matters. Mrs X escalated her complaint to Stage Two.
30. The Council also responded to the MP who enquired about Mrs X’s case in March 2022. It apologised for the delay and said Y had been attending School B since January 2022.
31. In September 2022, the Council responded at Stage Two to Mrs X’s complaint. It said a case officer was consulting with other specialist schools, including School C, Mrs X’s preferred school. Mrs X then complained to the Ombudsman. She added that Y being at home full time had caused significant physical and mental stress and she has had to pay for educational activities for him, as well as a private SALT.

The Council’s response to my enquiries

32. The Council said it was not clear why Section I was worded in the way it was in the August 2021 EHCP when it was clear Mrs X’s preference was for him to start in September 2021. It said it should have confirmed the type of placement from the issue of the EHCP and apologised it was not handled correctly.
33. Later in its response, the Council said it did not name a placement as it had agreed with Mrs X he would continue to attend his nursery placement until April 2022, when he turned five. This placement could not be named in Section I as it was a non-maintained early years setting.
34. The Council said it named School B in the January EHCP to comply with the request in the pre-action protocol letter as it believed it was Mrs X’s preference.
35. It said it had not been aware Y’s nursery placement had broken down in September 2021 or that Y had not been attending School B until May 2022.
36. It provided a chronology of further events. It said in November 2022, School C had offered Y a probationary place.
37. At the end of November 2022, an independent placement panel funding form was completed. It asked for consultations to be done again with all other schools for up to date responses. These were done in December 2022.
38. The Council acknowledged delays in handling Mrs X’s complaint, due to staff availability and vacancies impacting on responding within usual and expected timeframes. It said it made regular reminders for staff to maintain close working with parents and timely contact.
39. The Council said Y’s 2022 annual review had been delayed. The Council said a meeting would be held in January 2023. Mrs X has said to me this was cancelled and has not been rearranged.

Analysis

August 2021 EHCP

40. The Ombudsman would not normally investigate a complaint when someone can appeal to a tribunal. Mrs X could have appealed against no setting being named in Section I. I acknowledge Mrs X says she accepted what the Council had said at the time, and it wasn’t until later that she received advice that this may not have been correct. But there was still an alternative remedy to the SEND Tribunal.
41. However, the Council did not name a placement directing where the Special Educational provision in Section F was to be delivered, and it was still required to arrange this for Y. I can consider the Council’s actions about this, as it is separable from the placement that was appealable.
42. It was Mrs X’s preference for Y to start full-time education in September 2021. Although the Council tried to find a suitable school placement with no positive responses, it issued a final EHCP without naming one. If it agreed Y would continue at the nursery, the Council should have considered and made enquiries to satisfy itself the nursery was able to deliver what was set out in Section F. I have not seen evidence it did this. This is fault.
43. When the Council knew Y’s nursery placement had broken down the next month, it needed to make other arrangements for provision. It said it was not aware about the nursery but Mrs X informed them via email and I have seen the Council reply to this. Whilst it arranged tutoring for December 2021, only one visit happened with no further tuition since. I have not seen evidence of other provisions being arranged for by the Council, particularly SALT. This is fault.
44. I note School A offered a place when consulted in September 2021, but I have not seen anything further about this. It is unclear what action the Council took here, if any. The Council did not make any comment to me about this point. If this was a suitable place that was not followed up, this would be fault causing uncertainty as to whether Y could have been in education sooner.

January 2022 EHCP

45. When a school is named on an EHCP, it is under a statutory duty to admit the child. A school can only challenge being named by making a complaint to the Secretary of State. I cannot consider the actions of schools as this falls outside of the Ombudsman’s jurisdiction. The investigation is limited to consider the role of the Council.
46. I acknowledge the Council’s response to try and resolve matters after the pre-action protocol letter. But if it was going to name School B in the EHCP, it should have made enquiries with the school beforehand to discuss the arrangements. Additionally, there was notable delay between the Council directing School B to admit in January 2022 and action by the Council in May 2022 after the placement was withdrawn. The Council said it was not aware Y had not attended until May, but I have seen emails sent from Mrs X asking the Council for updates from February onwards. This lack of action in between is fault.
47. To date, Y does not have a school placement. I note the Council continued to consult schools, but alternative education provision outside of school has also not been put in place. It was clear a school place could not easily be found. The Council should have considered its Section 19 duty about what it could do to provide full-time education from September 2022, the term after Y reached compulsory school age. This is in addition to provision set out in his EHCP. This is fault.
48. The Council has accepted its responsibility the delay with Y’s EHCP annual review. This fault has delayed the opportunity for it to be kept up to date, causing frustration for Mrs X.

Communication and complaint handling

49. The Council accepted the delay in the complaints process, notably three months at Stage Two. In my view, the Council’s complaint responses were not satisfactory. Mrs X had legitimate points to address and the Council did not give fully considered responses. This poor complaint handling is fault.
50. I have seen instances of poor communication by the Council, with Mrs X chasing up regularly for responses and updates. It also concerns me the Council said it was not aware of events when I have seen evidence to the contrary. The Council’s response to the MP’s enquiry was fault as it gave inaccurate and false information. This has caused avoidable uncertainty and distress to Mrs X.

Injustice

51. The faults identified have caused significant injustice to Y as he has missed out on special educational provision and support he is entitled to for over a year and full-time education or its equivalent since September 2022.
52. Mrs X herself has suffered significant injustice during this time. I have seen evidence of the frustration and distress she experienced as a result of the uncertainty about Y’s educational future over a prolonged period of time.

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Agreed action

53. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
54. Within one month of the final decision:
• Apologise to Mrs X in writing for its failure to secure provision in Y’s EHCP and full-time or equivalent education for him;
• Pay Mrs X £5400 to recognise the missed provision for Y between October 2021 (when we would consider it reasonable for provision to have been in place by after the August EHCP) and February 2023. This is to be used for Y’s educational benefit. I based this on roughly 12 months without provision (accounting for school holidays), calculated at £450 per month;
• Pay Mrs X £500 to recognise the impact on her and her time and trouble pursuing the complaint;
• Reimburse Mrs X for reasonable educational materials and resources used for Y during the above period, including private SALT sessions (on receipt of copy invoices provided by Mrs X);
• Arrange an annual review of Y’s EHCP; and
• Take demonstrable action to provide alternative provision for Y.
55. Within two months of the final decision:
• Identify key learning points from this investigation and detail what action it will take to prevent future recurrence.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I found fault with the Council causing injustice to Mrs X and her son. The Council has agreed with the recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman