Summary: Ms X complains about the Council’s decision to name a particular school on her child’s education, health and care plan. Ms X also complains the Council failed to provide her child with a suitable education when he was unable to attend school. Although we are unable to investigate some aspects of Ms X’s complaint due to them being outside of the Ombudsman’s jurisdiction, we have found fault with the way the Council communicated with Ms X and its record-keeping. The Council has agreed to remedy the injustice this caused.

The complaint

1. The complainant, Ms X, complains the Council named a school on her child, Y’s, education, health and care plan, that is unable to meet his needs. Ms X also complains the Council failed to provide Y with a suitable full-time education.

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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 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)
3. 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)
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 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

7. I have not investigated Ms X’s concerns about Y being on a part-time timetable for three years at primary school because we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Ms X could have brought this complaint to the Ombudsman sooner.
8. I have not investigated Ms X’s concerns about the incident that resulted in Y being excluded from his secondary school because we cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

9. I considered Ms X’s complaint and the information she provided.
10. I considered the information I received from the Council in response to my enquiries.
11. Ms X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Relevant law and guidance

Alternative education

12. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
13. 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)

Education, health and care plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
16. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.
17. There may also be situations when an emergency review is required (for example if a placement is at risk of breaking down).
18. Councils should ensure reviews are held on time and chase up schools that fail to provide documentation after a review meeting to enable it to complete the review on time.
19. After a review meeting, councils must make one of three decisions:
• To keep the Plan unchanged
• To amend the Plan
• To cease the Plan
20. All three decisions carry a right of appeal to the SEND Tribunal. We expect a parent to use their appeal right unless we consider it would be unreasonable for a parent to appeal (Local Government Act 1974, section 26(6)(a))

What happened

21. Miss X has a son, Y, who has special educational needs. Y used to attend a mainstream primary school, School 1. He struggled with the transition from infants to juniors so a reduced timetable was implemented on the understanding that this would increase gradually.
22. In December 2021, the Council received a request for an Education, Health and Care (EHC) needs assessment for Y. In March 2022 the Council decided to issue a draft EHC Plan for Y and it named a mainstream setting as the most appropriate for him. School 1 said it could meet Y’s needs until the end of July 2023 and so he remained at School 1.
23. Miss X told the Council she did not want Y to attend a mainstream secondary school in September 2023 because she did not feel a mainstream setting could meet his needs. Miss X says the Council advised her the best route for Y with his EHC Plan was a mainstream secondary school as they would have the opportunity to refuse admission if they felt they could not meet his needs and in the worst case, if he did not settle within a mainstream school, an emergency annual review could be held and a specialist school could be contacted to discuss if they could meet his needs. Therefore, consultations were sent to two mainstream secondary schools. One of the secondary schools consulted, School 2, said it could not meet Y’s needs due to concerns it had about the delivery of all the provision in Section F in his EHC Plan.
24. The Council issued Y’s EHC Plan and named School 2, a mainstream secondary school. This placement started in September 2023. Y attended School 2 for two days in September 2023 and was then excluded for five days. Y stopped attending School 2 from 7 September 2023.
25. School 2 suggested a part-time timetable but Miss X refused because she did not want to send Y to a school that she felt was unable to meet his needs.
26. An emergency annual review meeting was held on 21 September 2023.
27. On 2 October 2023, the Council informed Ms X that it had not sent her appeal rights because it was still waiting for the annual review paperwork from School 2.
28. On 20 October 2023, the Council issued its decision not to amend Y’s EHC Plan and provided Ms X with her right to appeal if she was unhappy with the decision.
29. On 22 November 2023, Miss X complained to the Council about the lack of education Y was receiving, his current placement at School 2 and the lack of information she was receiving from the Council with regards to Y’s education.
30. The Council discussed Ms X’s complaint with her on 27 November 2023 and issued its Stage 1 response on 5 December 2023. The Council apologised for advising Ms X she could only name a mainstream setting as parental preference. With regards to Y’s education, the Council said it was unable to make a decision around a change in placement because it had not received the annual review paperwork from School 2 and it did not have evidence of how the school was unable to meet Y’s needs.
31. Ms X escalated her complaint because she did not feel the Council had offered a satisfactory resolution. The Council disagreed with this in its Stage 2 response. It said the Stage 1 response offered more than an apology because it outlined the alternative provision that was being provided to Y. It reiterated that it could not consider a change of placement until it received the annual review paperwork from School 2.
32. On 5 January 2024, School 2 sent an email to Miss X to say the Council had contacted it to say it had not received Y’s annual review paperwork. It advised Ms X that it had sent the paperwork to the Council on 10 October 2023 and provided her with a copy of the relevant email it sent to the Council with the annual review paperwork attached.
33. Ms X brought her complaint to the Ombudsman in January 2024.

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Analysis

Y’s placement at School 2

34. The Council has acknowledged it was at fault for advising Ms X that she could only name a mainstream setting as parental preference. This has caused an injustice to Ms X because at the time she was considering whether a specialist placement was more appropriate for Y. It has caused Ms X frustration and avoidable distress due to the lost opportunity to name a setting she felt could meet Y’s needs best.
35. Miss X is unhappy with the Council’s decision to name School 2, a mainstream secondary school, in Section I of Y’s EHC Plan. This decision is appealable to the SEND Tribunal. It is reasonable for Ms X to use her right of appeal if she wishes to challenge the named placement in Y’s EHC Plan.
36. After Y was excluded for five days, School 2 offered a part-time timetable to reintegrate him back to school. Ms X declined this. This is of no fault by the Council. It is Ms X’s decision. I acknowledge Ms X is frustrated that Y has had limited access to education before his placement at School 2 began and she is frustrated by events that led to his exclusion, but I cannot criticise the school or Council for offering Y the option to gradually build up his attendance at School 2.

Alternative provision for Y

37. It is evident the Council has accepted a section 19 duty for Y. The evidence shows on the same day of the emergency annual review meeting the Council began making arrangements for alternative provision. The alternative provision began in October 2023 with three sessions in the first week and this then increased to five sessions a week of 14 hours of alternative provision consisting of one-to-one support with maths, english, sport activities and mentoring.
38. Although Ms X initially refused to accept School 2’s offer to return gradually, I understand Y began attending again in Spring 2024, two hours a week, with the support of two members of staff. This runs alongside the alternative provision referenced above.
39. There is no evidence of fault by the Council regarding alternative provision. The Council’s duty is to make suitable arrangements and I cannot say it has failed to discharge this duty.

The Council’s record keeping and communication

40. The Council says it is unclear from its records what conversations took place with School 2 to alleviate their concerns in meeting Y’s needs and it being named in Y’s EHC Plan. This poor record keeping is fault. The Council has acknowledged this fault in its Stage 1 complaint response to Ms X.
41. The Council had no record as to how School 2 could meet Y’s needs. This caused Miss X and Y uncertainty and frustration.
42. I acknowledge the Council has tried to obtain this information from School 2. The evidence shows the Council asked School 2 on several occasions between October 2023 and 16 February 2024 for updates on obtaining professional advice on Y and his needs, but this information was not forthcoming, and I am unable to investigate the actions of a school. However, there is no evidence of the Council continuing these efforts between 16 February 2024 and 13 May 2024.
43. There is also evidence the Council’s communication with Ms X caused confusion with regards to School 2 sending the annual review paperwork to the Council. The evidence shows School 2 sent the annual review paperwork to the Council on 10 October 2023. The Council responded by asking School 2 to seek updated educational psychology input to support to make provision and/or to provide additional information which could support a request for a change of provision at a further annual review should this be required. This is the information the Council struggled to obtain from School 2, but instead it told Ms X it was waiting for the annual review paperwork.
44. This confusion was exacerbated further when the Council told Ms X on 20 October 2023 it had received the paperwork from the annual review meeting but then told her it had not received the paperwork on the and 5th and 22nd of December 2023.
45. The confusion and frustration this caused could have been avoided if the Council was clearer in its communication. The incorrect information meant Ms X was put to avoidable time and trouble to clarify matters with School 2 and the Council.

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Agreed action

46. To remedy the injustice caused by the faults, the Council has agreed that within four weeks of this final decision, it will:
• Pay Ms X £100 for the avoidable time and trouble she was put to; and
• Pay Ms X £350 for the avoidable distress caused by the misinformation it provided to her and the poor record keeping.
47. The Council will provide us with evidence it has complied with the above actions.

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Final decision

48. The Council was at fault for not communicating with Ms X effectively and providing her with incorrect information. The Council has agreed to remedy the injustice caused by the faults. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman