Summary: Mr X complained the Council delayed finding a special school for his son, Y. This is having an impact on his mental health and wellbeing. Mr X would like the Council to allocate a special school urgently. We have found there has been delay finding a place at a special school for Y. This has not caused Y significant injustice as the Council provided full-time teaching support in a mainstream school while continuing the search for a special school.

The complaint

1. Mr X complained the Council delayed finding a special school for his son, Y. This is having an impact on his mental health and wellbeing. Mr X would like the Council to allocate a special school to Y urgently.

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The Ombudsman’s role and powers

2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. 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

5. As part of the investigation, I have considered the complaint and the information provided by Mr X.
6. I have made enquiries of the Council and considered its response along with relevant law and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant legislation

8. 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. 
9. There is a right of appeal to the Tribunal against the specified in the EHC Plan. The courts have established that if someone has appealed to the 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)
10. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
11. The Ombudsman cannot normally investigate a complaint when a person has an appeal right available to the SEND Tribunal. However, we may exercise our discretion to investigate a complaint when we consider it is not, or was not, appropriate for a person to exercise their appeal rights to the SEND Tribunal.
12. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

What happened

13. I have summarised below the key events; this is not intended to be a detailed account.
14. Y has special educational needs. He attends mainstream school and has had an EHC Plan throughout his education.
15. In July 2023, the Council issued an updated Final EHC Plan which named the mainstream school Y attended. The plan also provided Y with 32.5 hours teaching assistance in mainstream school. Mr and Mrs X did not appeal the Plan.
16. The SEND service agreed Y needed a specialist education school and consulted with specialist settings. Mr and Mrs X said Y’s school must be local so they can transport him as he will not cope in a taxi on his own. Mr and Mrs X must also transport their other children to school.
17. The Council consulted with the three parental preference schools in July. The schools could not meet need. One of these schools, School B was a new school and was accepting students from January 2025. The Council continued to consult with other schools. It consulted with around 20 in total.
18. The Council secured a place for Y at a special school (School A) to start in September 2024. Y’s parents declined the offer. The Council continued to consult with other schools. The place at School A became unavailable in February 2024.
19. In April 2024, Mrs X said she would prefer to wait for a place at School B.
20. At the end of May 2024, Mrs X started to homeschool Y on a Wednesday as he was not coping full time in mainstream school. This enabled him to engage with school the other four days he attended.
21. The Council reviewed the EHC Plan and issued a new Plan in July 2024. The Plan named the same mainstream school and continued to provide Y with teaching support. Mr and Mrs X did not appeal the Plan to the tribunal. In conversation with me, Mrs X referred to the full-time teaching assistant support provided for Y in mainstream school and said she is happy with the Plan.
22. The Council formally consulted with School B in July 2024. The consultation response said the school was not suitable and did not offer a place to Y.
23. A place at School A became available again in September 2024. The parents previously rejected the offer.
24. In October 2024, School C identified it was suitable and could meet Y’s needs after the parents visited. Mr and Mrs X did not respond to correspondence from School C. It could therefore not offer a placement.
25. In response to my enquiries, the Council said it was having ‘unprecedented difficulty in securing a school place’ and many schools could not meet his needs. The schools that could meet Y’s needs were outside the distance Mr and Mrs X could travel. The panel discussed Y regularly and escalated his case to the commissioning service to consider and consult with a wider range of independent educational settings.
26. Mrs X told me they would prefer to wait for a place at the new independent school (School D) to become available which is within a few miles of the family home. At the time of writing, School D has not been approved by Ofsted and the Council can therefore not formally consult with it. Whilst waiting for the school to be approved and accept students, the Council’s commissioning team have completed a site visit and informally discussed options for Y in the future. The Council is hopeful a place can be provided for Y once the school opens and has satisfactory Ofsted registration. Y and his parents have met with the headteacher who would like Y to attend the school. In conversation with me, Mrs X said School D is the perfect location and she hopes this is the answer.

The complaint

27. In late May 2024, Mr and Mrs X complained to the Council through their MP. In early July, the Council responded to the MP and explained it was consulting with schools and communicating with the family to ensure support was available.
28. In August 2024, the parents complained to the Ombudsman. They complained about the Councils significant delay allocating a specialist education setting for Y.

Analysis

29. Parents may appeal the naming of a school in the EHC Plan to the Tribunal. Mr and Mrs X had two opportunities to do this following the final plans being issued in the summer of 2023 and 2024. They decided not to do this. In response to my enquiries, the Council said this would be the most suitable arena to challenge its decision making about the named educational setting and to change the placement for Y. The Council is right, the usual way to challenge the naming of a placement is to appeal to the tribunal. The Ombudsman would not usually investigate complaints where there is a right of appeal to the tribunal. However, in this case, the Council had made it clear Y needed a special educational setting, discussed the preferred schools with the parents and began the consultation process. It was therefore reasonable for the parents not to appeal because they had a reasonable expectation the Council would find a suitable place for Y, as already agreed. I have therefore exercised discretion to investigate this complaint.
30. The Council consulted with the parents’ preferred schools which were unfortunately unable to offer a place for Y. It consulted with 20 special educational provisional providers in total and told me it had ‘unprecedented difficulty’ in finding a suitable school placement for Y and accepted there was delay. This process has been ongoing for around 18 months, and I understand Mr and Mrs X are frustrated that Y does not yet have a suitable special school placement. During this time, the Council found two placements which it considered were suitable which Mr and Mrs X did not accept. While there has been delay, this is due to the difficulty in finding a suitable school with space.
31. The Council has taken pre-emptive action and discussed a potential placement for Y at School D. There is nothing further the Council can realistically do until School D receives Ofsted registration and opens to students. Offering a place to Y at School D is not within the Council’s powers.
32. While the Council has been searching for a placement, it has provided full time teaching support in school for Y which he accesses four days a week. Mrs X told me the family are happy with this part of his plan. Y is in school and accessing education, limiting any injustice to Y.
33. In response to my enquiries, the Council admitted the delay finding a placement for Y and said it is working to improve the situation. It said its plan to expand and build new schools in the area to increase provision has been approved by the Department for Education. This will provide around 800 extra places over a seven-year period.
34. The Council is also recruiting nine SEND case workers and two senior SEND caseworkers to help improve the effectiveness and sufficiency of the department in the future. The Council says it is committed to delivering a person-centred service and hopes these changes go someway to helping achieve this.

Summary

35. There has been delay finding a special school place for Y which the Council has accepted. This is service failure. The Council tried to find a place for Y, it consulted with around 20 schools, took pre-emptive action and approached new schools which were not accepting students at the time. It also found two schools which it considered were suitable. During the search for a special school, Y attended mainstream school and received full-time support from a teaching assistant. Y was accessing education through the support in his EHC Plan which Mr and Mrs X said they are happy with. There is no significant injustice to Y.

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Final decision

36. I have completed my investigation. There is delay finding a special school place for Y, but this has not caused him significant injustice as the Council provided full-time teaching support in a mainstream school while continuing the search.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman