Summary: Mrs X complained the Council failed to provide an education and special educational provision for her child, and ignored her complaint. She said her child has missed out on education, which impacted their mental health and wellbeing. She said it caused unnecessary distress and frustration. We do not find the Council at fault for the way it handled the child’s education. But we find the Council at fault for its complaint handling, which caused injustice. The Council has agreed to apologise, make a payment, and improve its service.

The complaint

1. Mrs X complained the Council failed to provide an education for her child. She complained the Council failed to provide the provision set out in her child’s education, health and care plan. She also complained the Council ignored her complaint.
2. Mrs X said her child has missed education which has had an impact, and as well as the impact on their mental health and wellbeing. She said she had to reduce her working hours which had a financial impact. She said it also impacted on her and the family’s mental health. She said it caused unnecessary distress and frustration.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

10. I have investigated the parts of Mrs X’s complaint that the Council failed to provide an education for her child, C, and ignored her complaint. Mrs X also complained the Council failed to provide the provision set out in C’s education, health and care plan. I have not investigated this part of the complaint for the below reasons.
11. A child with special educational needs may have an education, health and care (EHC) plan. This plan sets out the child’s needs and what arrangements should be made to meet them.
12. There is a right of appeal to the SEND Tribunal against the description of a child’s special educational needs, the special educational provision specified, the school or placement, or that no school or other placement is specified.
13. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
14. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC plan, we cannot investigate a lack of special educational provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
15. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
16. In this case, Mrs X complained the Council failed to provide the provision set out in C’s EHC plan. This plan was issued in April 2023 and named the mainstream school C had been attending before it was issued.
17. At the time the EHC plan was issued, Mrs X was already unhappy with that school and had told the Council in December 2022 the school could not meet C’s needs. Mrs X had the right to appeal the EHC plan in April 2023 when it was issued.
18. I have decided the reason for C’s non-attendance was linked to, or was a consequence of, Mrs X’s disagreement about the school named in the EHC plan. For that reason, I cannot investigate a lack of special educational provision, or alternative educational provision, from April 2023.
19. For this reason, regarding alternative educational provision, I have considered the Council’s actions from November 2022 (when C first stopped attending school) to April 2023 (when Mrs X had the right to appeal the EHC plan).

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How I considered this complaint

20. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
21. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Alternative educational provision

22. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Complaint handling

24. The Council’s website says, “A complaint is when you tell us you're unhappy with something we've done. You can complain about … a service we've provided, or someone has provided on our behalf.”
25. The Council’s complaints procedure says when someone complains, their complaint will be sent to the complaints team. If a complaint cannot be dealt with within five working days, it will go to the formal complaints process.
26. The procedure says the Council will respond at stage one of this process within 20 working days. The outcome of a complaint investigation will say whether the complaint is upheld, partially upheld, or not upheld. The Council will then signpost the complainant to stage two of the process if they are not happy with the investigation.
27. The procedure says a complainant has 20 working days from the stage one response to tell the Council they want to take their complaint to stage two. If the Council accepts the request for stage two, a senior officer will contact the complainant.

What happened

28. In November 2022, Mrs X’s child, C, stopped attending school. For a week, C attended alternative provision. They then went back to school on a part-time timetable.
29. In February 2023, Mrs X emailed the Council saying she wanted to make a complaint. In June, Mrs X asked the Council how to escalate her complaint. In October, Mrs X complained again.
30. In November, Mrs X told the Council it had not acknowledged her complaint. A few days later, Mrs X complained to the Ombudsman. The Ombudsman contacted the Council.
31. The Council wrote to Mrs X, addressing her complaint. Mrs X wrote back. The Council then had a meeting with Mrs X.
32. In December, the Council responded to Mrs X’s complaint. In January 2024, Mrs X asked the Council to escalate her complaint to stage two. The Council did not accept this request and signposted Mrs X back to the Ombudsman.

Analysis

Alternative educational provision

33. As I have said above, councils have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
34. The Council said there was no indication or evidence that C was not able to attend school for physical or mental health reasons. It said that during its assessment of C’s needs between December 2022 and April 2023, there was no evidence to suggest its section 19 duties had been triggered.
35. The evidence shows the Council communicated well with the school about the educational provision the school was providing C when they were not attending. The Council also met with the school and the family several times during the scope of this investigation to oversee the school’s alternative provision.
36. I find that the Council took appropriate action to satisfy itself that the school’s alternative educational provision was suitable and reasonably practicable for C to access, and was available and accessible to them. For these reasons, I agree with the Council that its section 19 duties were not triggered. I therefore find no fault with the Council.

Complaint handling

37. Mrs X complained in February, June, and October 2023. They were clearly complaints, as defined on the Council’s website. There is no evidence the Council sent these complaints to its complaints team in line with its complaints procedure. This is fault.
38. The Council responded to Mrs X’s complaint in writing in November 2023. However, it did not say it was a stage one complaint response, nor did it signpost Mrs X to stage two. Mrs X wrote back to the Council. After the Ombudsman became involved, the Council said it would treat Mrs X’s reply letter as a complaint.
39. Internal Council communications show the Council said in early December that its special educational needs team had dealt with the complaint. A few days later, the Council sent Mrs X another complaint response. This letter did not say it was a stage one complaint response. But it did signpost Mrs X to stage two.
40. Neither of these complaint responses said whether the Council upheld, partially upheld or did not uphold Mrs X’s complaint. This is not in line with the Council’s complaints procedure and is therefore fault.
41. A complainant should not have to wait months and months, or complain to the Ombudsman, for the Council to respond to a complaint in line with its complaints procedure.
42. The Council should have passed Mrs X’s first complaint to its complaints team in February 2023. The complaints team should then have identified whether the complaint could be dealt with within five working days or not. It should then have progressed Mrs X’s complaint to stage one.
43. The Council should have sent Mrs X a formal stage one complaint response within 20 working days, told her whether it upheld her complaint or not, and signposted her to the next stage.
44. The Council failed to do this. I therefore find the Council at fault.
45. It took nearly a year for the Council to respond properly to Mrs X’s complaint. It may well have been that the Council was working to address the root cause of Mrs X’s complaint. But this is not a reason for the Council not to progress her complaint properly through its complaints procedure.
46. I find the fault caused Mrs X injustice in that she spent a lot of time and trouble trying to get the Council to respond formally to her complaint, in line with its complaints procedure. This caused unnecessary and avoidable distress and frustration.
47. The Council refused Mrs X’s request for stage two. The Council was entitled to do this. Therefore, I do not find the Council at fault for this.

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Agreed action

48. Within four weeks of this decision, the Council has agreed to apologise to Mrs X for the injustice caused by failing to respond to her complaint in line with its complaints procedure.
49. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making this apology.
50. Also within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £300. This is to remedy Mrs X’s time and trouble, distress, and frustration.
51. In arriving at this figure, I have considered our guidance on remedies. This sets out a maximum payment of £500 for this kind of injustice. I have considered that the Council had a lot of communication with Mrs X and was trying to resolve the issue she complained of. I have also considered how long it took the Council to acknowledge this as a formal complaint and take it through the complaints procedure. For this reason, I consider a payment of £300 is appropriate and proportionate to the level of injustice caused.
52. Within three months of this decision, the Council has agreed to remind all staff in the special educational needs team about its complaints procedure, specifically highlighting what constitutes a complaint and what to do when staff receive a complaint. This should avoid causing similar injustice in the future.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. I find the Council at fault for its complaint handling. This caused injustice. The Council has agreed to apologise, make a payment to Mrs X, and improve its service.
55. I do not find the Council at fault for the way it handled C’s education.
56. I cannot investigate the part of Mrs X’s complaint about special educational provision. This is because it is outside our jurisdiction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman