Summary: Mr X complained the Council failed to ensure his son received suitable education for one year, resulting in missed education and distress. We found the Council at fault. We recommended it provides Mr X with an apology; pays £200 for time and trouble; £300 for distress; £2200 for missed education and; acts to prevent recurrence.

The complaint

1. Mr X complains the Council:
• delayed completing his son’s Education Health and Care Plan (“EHCP”),
• refused a personal budget,
• did not consult with schools properly,
• failed to ensure his son was in suitable full time education and receiving SEN provision from April 2021 to March 2022,
• offered unsuitable alternative provision,
• refused to address his complaints about what happened in schools his son attended, and
• had a poor attitude towards him due to underlying racism.
2. Mr X also complains about the actions of his son’s school.
3. Mr X says his son has suffered distress and missed education.

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What I have and have not investigated

4. I have investigated the complaints listed at paragraph 1 except the Council’s refusal of a personal budget. This is because Mr X could have appealed the final EHCP if he was unhappy with the content.
5. I have not investigated the complaint at paragraph 2 as this is outside my jurisdiction.

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The Ombudsman’s role and powers

6. 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)
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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.
9. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
10. 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.
11. 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

12. I spoke to Mr X and I reviewed documents provided by Mr X and the Council
13. I gave Mr 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

Complaints about schools

14. Gov.uk says to contact the school to discuss the problem first. If the problem is not resolved, follow the school’s complaints procedure to make a formal complaint.
15. You usually need to complete the school’s complaints procedure before you complain to the Department for Education.
16. If you have complained to the school and the problem has not been resolved, you can also complain to Ofsted. 

EHCP process

17. Once a parent asks the council for an EHCP assessment the council has six weeks to say whether it will carry out an assessment.
18. If the council decides to assess the child it will gather information and then decide if the child needs an EHCP.
19. If the council decides the child needs an EHCP it must send a draft to the child’s parent and give them at least 15 days to comment and express a preference for a school.
20. The council must consult with any relevant school before naming it in the EHCP.
21. The council should amend the draft plan and issue the final EHCP as quickly as possible. In any event the whole process from the request to assess to the final EHCP should not take longer than 20 weeks.
22. The council must also tell the parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

Consulting with schools

23. For maintained schools, special schools or certain independent schools:
24. If a child’s parent requests a particular school the council must comply with that preference and 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
25. The council must consult with the school and send it a copy of the draft EHCP. It must consider the school’s comments very carefully before deciding whether to name it in the child or young person’s EHC plan. If another council maintains the school, they too must be consulted.
26. For non maintained schools and other independent schools, parents can make a request which the council must consider. The council is not under duty to name the provider but must have regard to the general principle 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. The council should be satisfied that the institution would admit the child 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.

Personal budget

27. A Personal Budget is an amount of money identified by the council to deliver provision set out in an EHCP where the parent or young person is involved in securing that provision. Details of any proposed Personal Budget should be included in section J of the draft EHCP.
28. The child’s parent has a right to request a Personal Budget, when the council has completed an EHC needs assessment and confirmed it will prepare an EHC plan. They may also request a Personal Budget during a statutory review of an existing EHCP.

Equality Act 2010

29. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
30. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. One of those protected characteristics is race.

Direct Discrimination

31. Direct discrimination is when someone is are treated worse than another person or other people because:
• they have a protected characteristic;
• someone thinks they have that protected characteristic (known as discrimination by perception);
• they are connected to someone with that protected characteristic (known as discrimination by association).

Right to Education

32. 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.
33. 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.
34. 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.
35. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations based on examples of good practice seen. It said councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

36. Mr X says from April 2021 his son, Y, attended a mainstream primary, school A, in Reception, on limited hours and he was unhappy with school A’s provision.
37. In June Mr X complained to the Council about school A. It referred him to the school’s complaints process.
38. Mr X told the Council he had tried the school to no avail. He repeated issues with the school and made clear Y was not in full time education. The Council again referred him back to the school.
39. On 6 July Mr X requested an EHC assessment and on 2 August the Council agreed to assess Y.
40. From September 2021 Y started mainstream school B. Mr X says again his attendance was very limited.
41. Mr X has provided emails from September 2021 to May 2022. Of relevance, these include:
• In October 2021 Mr X complained about the content of the school’s report for Y’s EHCP. The Council said it could not comment and had no control over the school as it was independent from the Council.
• In October 2021 Mr X complained Y was only receiving two hours’ school per day. I cannot see the Council addressed this.
• In December 2021 Mr X complained about the actions of the school. The Council told him his concerns related to matters and services for which the Council is not accountable and therefore cannot resolve. If he had a complaint about a Council service he should follow its complaints process at a link provided.
42. On 9 December 2021 the Council issued a final EHCP for Y. This provided for:
• Speech and language Therapy (“SALT”): A structured programme to develop communication skills. Staff implementing strategies recommended by the Therapist.
• Occupational Therapy (“OT”): Therapist to provide strategies and advice for staff to embed in daily routine. And to visit Y at school six times per year for direct work.
43. The EHCP says:
• Six OT sessions offered to Mr X to be delivered at home but he declined.
• “As the Local Authority is not yet in a position to confirm a placement and name a particular setting, we have decided to name a ‘type of provision’ in Section I. Please note that this does not affect our consultation process with schools and we will, continue to work with schools and parents in order to secure a place”.
• The type of setting was a specialist setting.
44. The Council reissued the EHCP on 12 January 2022 with a minor correction. The provision and setting remained as summarised above.
45. Mr X says from January 2022 Y refused to attend school altogether. Emails show Mr X told the Council.
46. On 13 January the Council met with Mr X to discuss alternative provision to supplement the school’s provision. The Council offered some provision but Mr X refused as he considered it was not suitable.
47. On 14 January Mr X queried why there was no personal budget in the EHCP and the Council said this section was blank as there was no budget.
48. On 14 January 2022 Mr X complained to the Council. In summary he said:
• Y was not in full time education. At most he had access to two hours per day but was refusing to attend due to issues with the school.
• The Council offered unsuitable alternative provision at a farm. While it also offered tuition, this was only offered in the home which was Y’s safe space and so not suitable.
• It delayed finalising the EHCP.
• There were errors in the EHCP.
• It had delayed finding a school place.
• The school and Council were demonising him and there was underlying racism.
• The Council left the personal budget section of the EHCP blank.
49. The Council acknowledged the complaint and said it could not consider matters for which the school was responsible. Further that it could not consider allegations against staff.
50. The Council issued a stage 1 response on 7 February 2022. It said:
• It decided to assess Y for an EHCP within the six week statutory timescale.
• It requested information from professionals and some of this was returned later than their six week deadline.
• It issued a final EHCP on 9 December 2021, 2 weeks and 3 days later than the statutory timescales. Delays in receiving information from professionals was the main factor and it had seen evidence it chased up reports at the time. It apologised for the delay.
• The final EHCP contained an error regarding Y’s date of birth. Once he raised this it corrected this and reissued the final EHCP. It apologised for the oversight.
• It issued a final EHCP naming a type of setting- a school for young people with complex social communication needs.
• It had not yet identified a suitable school for Y. Five consulted did not have places available. It also consulted with three schools named by Mr X. On or about 13 January it sent a further 18 consultation letters and a further six on or about 2 February.
• It continued to actively seek a school for Y to enable him to access a placement as soon as possible. In the meantime he remained on roll at school which had employed a Teaching Assistant to work with him. However, it acknowledged Y was not accessing the school provision available.
• It was aware that prior to finalising Y’s EHCP he was accessing a shorter school day. It therefore agreed to look at alternative provision alongside this. On 13 January it discussed outdoor learning opportunities, tuition and some speech and language and occupational therapy provision with Mr X. On 24 January it consulted with tutors. It continued to take action to arrange alternative provision and apologised this was not yet in place.
• Section j was blank as there was no personal budget in place and Mr X did not receive direct payments for Y’s provision.
• It gave further details on the outdoor learning provision offered. It clarified this would have been part of a package of support and explained why it considered this provision suitable.
• In January Mr X told the Council he wanted Y to access SALT and OT outside of school and it was now arranging this.
51. In March 2022 Mr X moved and Y started school in another Council area.
52. In April 2022 the Council agreed to consider the following stage 2:
• Delay completing the EHCP.
• Errors in the EHCP.
• Lack of section j personal budget.
• Failure to provide education for over a year.
• Unsuitable alternative provision offered.
• Delays arranging alternative provision from January 2022
• Delays in responding to enquiries.
• Delays in referrals.
• Failure to provide OT and SALT.
• Intimidation and threats from staff.
53. Mr X’s copy of his stage 2 complaint as provided to the Ombudsman also included:
• The Council did not consult with schools properly. It refused to name School C and refused to consult with some London schools.
• The Council failed to address his complaints about what happened in the schools.
54. The Council produced a stage 2 report in August 2022. This included a chronology of key contacts and actions. Of relevance:
• 14 January: Mr X said there was an error in the EHCP as the personal budget section was blank. The Council confirmed there was no error as there was no personal budget.
• 14 January: Mr X requested SALT and OT.
• 26 January: The Council offered SALT and OT at a clinic. Mr X declined due to concerns about covid.
• 2 February: the Council offered sessions at home or at a clinic. Mr X declined.
• 17 March the Council agreed to provide 10 hours per week tuition at Mr X’s preferred tuition service with the potential to increase to 15 hours per week.
55. The Council upheld the complaint of delay in the EHCP process as per stage 1.
56. The Council upheld the complaint of an error in the EHCP, which it corrected, as per stage 1.
57. Evidence suggested section J of the EHCP was left blank for sound reasons, i.e. because there was no personal budget in place and at that stage no request for such a budget had been made. It did not uphold this complaint.
58. The Council took the view education was available to Y while he was on roll at school. On 13 January the Council suggested Y attend school in the morning with additional support in place and it arrange alternative provision for the afternoon, however Mr X did not want Y to attend school.
59. Between December 2021 and February 2022, the SEND service approached thirty possible education providers for Y.
60. Y had access to school and also had offers of alternative provision which acknowledged difficulties in full time school attendance. It did not uphold the complaint regarding missed education.
61. In considering the Council’s explanations regarding the alternative provision offered it did not uphold the complaint about this.
62. The Council explained it needed to risk assess venues and this had not delayed a tuition service starting in March 2022. It did not uphold this complaint.
63. It did not uphold the complaint regarding SALT and OT with reference to sessions attended prior to December 2021 and Mr X declining offers made in January 2022.
64. On review it found the Council replied promptly to most messages and so it did not uphold the complaint of delay in contact.
65. The case file recordings supported the Council’s accounts that there were no meaningful delays in referrals, to either educational provisions or other agencies. It did not uphold the complaint of delay.
66. It recognised Mr X considered the Council threatened him in letters outlining restrictions on his communications. The officer had no concerns over language or tone but could not dispute how Mr X felt so did not make a finding.
67. The Council considered the stage 2 report and issued a decision letter to Mr X on 22 September 2022. This said it agreed with the report findings. It apologised for upheld complaints. He could contact the Ombudsman.
68. When I spoke to Mr X he added that he was put to time and trouble looking for a tuition service himself.
69. In response to enquiries the Council provided a chronology of its consultations with schools. In summary:
• It consulted with maintained schools and independent schools both within and outside its area, including London.
• It says prior to 9 December 2021 it would have considered all its Surrey settings. However, I note its spreadsheet detailing consultations starts from 14 December 2021.
• It first sent consultations on 14 and 16 December 2021.
• On 14 December a maintained school that was parental preference refused a place as it did not have space. However, there is nothing to suggest the Council turned its mind to whether the attendance of Y there would be incompatible with the efficient education of others, or the efficient use of resources.
• It sent a further 20 consultation letters in January 2022 and 7 in February 2022.
• All schools that responded said they did not have capacity or could not meet needs, this included School C.
70. The Council said it gave Mr X a list of alternative education tutors on 14 January. On 19 January Mr X’s preferred provider agreed to provide Y with two hours a day tuition to increase when he could cope with this. Tuition started on 17 March. Mr X had been offered other providers. However, he objected to these provisions as he felt they were not appropriate and was concerned they were not education provisions.
71. In comments on a draft decision the Council said:
• It would like the report to reflect a bit more about Y’s level of need and his responses to a mainstream education setting, which meant that full time educational provision in a mainstream environment was not the most appropriate way forward.
• Y was exhibiting significant dysregulated responses to the mainstream environment, which meant adjustments made in a mainstream classroom were unsuccessful. It recognised Y was highly distressed and so provided a suitably qualified professional to work directly in the school with him on a graduated programme of attendance.
72. In comments on a draft decision Mr X said:
• He was unhappy the Council wanted SALT to take place in a medical practice. He suggested three alternative locations owned by the Council, near the Council’s office and within walking distance of his home. The Council never explained why these were not suitable.
• The Council suggested provision at a farm that was 60 to 70 miles away but there were closer venues available. Further, the farm was accessible by ex-offenders and so was unsuitable.
• The Council has never explained what happened to his son at school.

Findings

73. Mr X contacted the Ombudsman in January 2023 about matters that have been ongoing from April 2021 to March 2022 and so I consider the complaint is in time.
74. Mr X told the Council Y was not in full time education in June 2021 and again in October 2021 yet the Council took no action. This is fault. The Council should have acted to ensure Y received education either through enforcing attendance if it considered he should be at school or providing alternative provision otherwise. I am satisfied Y missed out on education from June 2021 to 9 December 2021. And this caused him and Mr X distress and uncertainty. This is injustice. As it appears the Council simply overlooked key information within Mr X’s correspondence I make no service improvement recommendation.
75. The Council delayed completing Y’s EHCP by two weeks. This is fault. Mr X suffered distress and uncertainty. This is injustice. I note the Council has apologised and explained the delay arose due to delays in professionals providing their reports to the Council, despite its chasing. I do not consider this warrants a service improvement recommendation.
76. The Council should have consulted with schools as part of the EHCP process but there is no evidence it started consulting until after it issued the final EHCP in December 2021. This is fault. Y missed the opportunity to attend a suitable school from 9 December 2021. This is injustice.
77. The Council has evidenced it consulted with a number of schools. However, it appears it did not apply the correct test when considering schools named as parental preference. It is not enough for a school to say it is full. The Council must decide in line with the test as referred at paragraph 24. That it did not do so amounts to fault. Y missed the opportunity to attend a suitable school sooner as a result. This is injustice. Others may be impacted by the same fault, so I will recommend service improvements.
78. The Council’s records show it did consult with School C and London schools as Mr X wished, however these said they could not meet Y’s needs or were full. I find no fault, (other than as referred at paragraph 77).
79. Not every EHCP has a personal budget. Mr X did not ask for one during the EHCP process and so the Council did not have to consider this. I find no fault. Mr X had the right to appeal if he remained unhappy with the content of the final EHCP as so I will not investigate this matter further.
80. Mr X had the right to appeal the content of the final EHCP, including that no school was named. However, I consider it was reasonable for him not to appeal on this ground as he expected the Council to find a school place. And he did not appeal. So I will exercise discretion to investigate this part of Mr X’s complaint.
81. The Council decided Y needed to be in a different setting when it issued the final EHCP of 9 December 2021. However, it did not offer any alternative provision until 14 January 2022. This delay is fault. Y missed out on alternative provision pending a suitable school place. This is injustice.
82. I note Mr X rejected the Council’s initial offer of alternative provision as he considered it unsuitable. However, the Council considered it suitable and gave reasons in support. I cannot question the Council’s judgement. I am therefore satisfied some provision was available to Y from 14 January 2022. However, this was not full time provision.
83. I note the Council considered Y should receive some provision at school. However, the Council knew Y was not attending school and it was taking no action to enforce attendance. I therefore consider the Council did not act to ensure Y receive suitable full time education while out of school from 9 December 2021 to March 2022 when he moved out of the Council’s area. Y missed out on full time education, noting some part time provision was available from 14 January 2022. This is injustice.
84. The stage 2 report found no fault regarding missed education in part due to Y remaining on school roll. However, the Ombudsman has been clear in its expectations that a council may have to act where a child is out of school even if they remain on roll. Since the stage 2 report the Ombudsman has issued decisions recommending the Council provide training to staff on this point. I will therefore not make a further service improvement recommendation.
85. I note Mr X says he spent time looking for a tutor for Y. However, it was the Council’s responsibility to find alternative provision. I have not seen evidence the Council placed the burden on Mr X, so I do not find fault at this stage.
86. Y’s EHCP of December 2021 provided for SALT and OT. It appears the Council offered OT at home but Mr X declined. As this was nonetheless available, I find no fault. However, I have not seen evidence the Council offered Y SALT from 9 December 2021 up to 26 January 2022. This is fault.
87. From 26 January the Council offered sessions for SALT and OT at home or in a clinic. I note Mr X had personal reasons to refuse this, however the provision remained available. Taking this into account I cannot say Y missed out on SALT or OT due to the Council’s fault from 9 December 2021 as it appears even if offered, it would not have been taken up. I therefore find no injustice.
88. The Council gave Mr X the correct information when it told him it could not deal with complaints about schools and referred him back to the school. I find no fault.
89. The Council’s stage 2 response was delayed by six months. This is fault. Mr X was put to time and trouble in the complaints process. This is injustice.
90. I acknowledge Mr X felt the Council treated him unfairly because of his race, that he felt stereotyped and demonised. However it is not possible for me to say on the evidence seen that the Council’s actions or behaviours were influenced by Mr X’s race. I am therefore unable to find fault.

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Agreed action

91. To remedy the injustice set out above I recommend the Council carries out the following actions:
92. Within one month:
• Provide a further written apology to Mr X;
• Pay Mr X £200 for time and trouble;
• Pay Mr X £300 for distress and uncertainty;
• Pay Mr X £2200 in recognition of Y’s missed education and SEN provision;
93. Within three months:
• Provide guidance to staff working in children’s education on the need to consult and name a school during the EHCP process and the test to apply when considering whether to name a school that is parental preference.
94. The Council should provide us with evidence it has complied with the above actions.
95. The Council has accepted my recommendations.

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Final decision

96. I find the Council at fault because it did not ensure Y received suitable full time education. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman