Summary: the Council took too long to arrange alternative provision once it accepted a special school was not going to work out for Ms M’s son, B. B was without education for two terms from September 2023 to April 2024. The Council has agreed a symbolic payment to acknowledge the impact.

The complaint

1. Ms M complains her son, B, is not receiving suitable education. B has not attended school for a number of years.

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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 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)
4. 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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How I considered this complaint

5. I considered information provided by Ms M and the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. Ms M told us she has ADHD and sometimes finds paperwork difficult.
7. Ms M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. The Council issued B’s first EHC Plan on 14 October 2022. B was not attending school at the time. Section I of the Plan, which records placement details, said B was “NEET” (not in education, employment or training). The Council says a place was available for B at a local community primary school.
8. B was due to start his secondary education in September 2023. The Council updated his EHC Plan in August 2023 and named a community special school in section I. Ms M did not want B to attend the special school. She wanted the Council to arrange education other than at school (EOTAS). The Council refused.
9. Ms M complained to the Council that B was not receiving suitable education in September 2023. Ms M said she would not enrol B at the special school.
10. The Council responded on 23 September 2023. The Council said it was satisfied the special school was appropriate and said that Ms M should have appealed to the SEND Tribunal if she did not agree with the Council’s plans for B’s education. The Council did not uphold Ms M’s complaint.
11. However, the Council acknowledged that without Ms M’s support, the special school placement was unlikely to be successful. In view of the length of time B had been out of education, the Council agreed to provide EOTAS with a view to securing B’s return to formal education. The Council said it would not be pursuing a place at the special school.
12. Ms M complained to the Council again on 1 February 2024. She said B was still not receiving suitable education.
13. The Council responded on 15 February 2024. The Council acknowledged that it had failed to make “sufficient progress” identifying an alternative placement or arranging alternative provision. The Council said it had allocated a senior officer who would contact Ms M by the end of the month.
14. Unhappy with the Council’s response, Ms M asked the Council to respond at the second stage of its complaints process.
15. The Council responded on 13 March 2024. The Council said work was in progress to secure interim education to ensure that B is ready to return to a school placement.
16. Unhappy with the Council’s response, Ms M complained to the Ombudsman. She said B was receiving very little provision, and the provision he received was at risk because of delays by the Council paying invoices. She said B’s EHC Plan was vague and out of date.
17. The Council issued an amended EHC Plan in September 2024 and agreed to arrange education other than at school (EOTAS). Section I is blank since B’s education will not be delivered in a school, and section J sets out brief details of a personal budget to arrange provision.

Consideration

18. There has clearly been a lot of disruption to B’s education.
19. There has clearly also been disagreement between Ms M and the Council about the best way to meet B’s needs.
20. I cannot sort out that disagreement. It is beyond my authority and expertise to say how B’s education should have been provided. This would have been a job for the SEND Tribunal.
21. There is nothing I can say about the disagreement between Ms M and the Council about whether B should attend a special school in September 2023.
22. When Ms M complained, the Council accepted the special school was not going to work and it needed to find an alternative. The Council agreed to arrange EOTAS.
23. In response to my enquiries, the Council explained that it arranged EOTAS from 15 April 2024. It said it had no records of whether B received any provision between September 2023 and April 2024 because the officer responsible had left the Council and there were no records. On the evidence available to me, it does not appear B received any education.
24. The Council had offered a special school place for September 2023, but took too long to offer an alternative once it accepted the special school was not going to work out. This is fault.
25. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council. The Council accepted my recommendations, and the agreed actions are set out at the end of this statement.
26. B continues to receive only limited provision.
27. The Council said that weekly speech and language therapy was not currently taking place because the relationship between B and the therapist had broken down. The Council said it was looking for an alternative therapist. The Council said Ms M had declined an offer of mentoring because the Council refused her request for transport payments. The Council said it had offered a tutor, but Ms M does not believe B is ready. Ms M says she has never refused provision.
28. The Council said it hoped B would return to school when appropriate. The Council said it would continue to review the EOTAS package with Ms M, but noted Ms M does not consider B is ready for formal learning at the moment.
29. I appreciate B’s education is a source of considerable worry for Ms M. She tells me that he only receives three hours of provision a week and this is having a negative effect on his mental health.
30. I cannot say whether this is enough, or whether he should receive more.
31. The law is clear that B should receive full-time education unless full-time education would not be in his best interests for reasons of his physical or mental health.
32. I appreciate B faces considerable challenges engaging with education, and I understand the Council is working slowly towards his reintegration to school.
33. However, the Council said it does not have a reintegration plan as such. This concerns me. Without a plan which can be reviewed and against which progress can be measured it is difficult to see how B’s situation is going to change. I suggest Ms M and the Council consider making a formal plan and agree a timetable for reviews so that everyone knows where they stand.
34. Ms M might consider asking the Council to review or reassess B’s needs if she is unhappy with the current provision in B’s EHC Plan. She might consider contacting Derby SEND Information, Advice and Support Service (SENDIASS) for independent support.

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Agreed action

35. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and B, we may recommend the Council makes a symbolic payment.
36. The Council took too long to arrange alternative provision once it accepted the special school was not going to work out for B. It appears B was without education for two terms from September 2023 to April 2024. I cannot say how much provision he should have received, but this was a missed opportunity to address the challenges he faced at an early stage.
37. Within six weeks of my final decision, I recommended the Council:
• apologises to Ms M for the faults I have identified;
• offers a symbolic payment of £4,000 to acknowledge the impact on B’s education;
• considers whether a formal reintegration plan would benefit B.
38. The Council accepted my recommendations. The Council should provide us with evidence it has complied with the above actions.
39. Ms M told me she is very keen for B to receive more provision. I hope that all parties will work together to plan for B’s education.
40. We can also make recommendations to ensure similar faults do not happen in the future. I invite the Council to reflect on what caused the faults I have identified and write to tell me what actions it will take to avoid them in the future within three months of my final decision.

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Final decision

41. I have ended my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman