Summary: Ms X complains the Council failed to provide a suitable education for her son when he was of compulsory school age. We found there was delay in finding a suitable placement by the Council and no alternative provision was made. There was also delay in issuing her son’s Education Health and Care Plan. We recommended an apology and payment to recognise the lost provision and distress caused.

The complaint

1. Ms X complains that there was a delay in the Council finding her disabled son, Y, a suitable school place. Because Y has significant disabilities this caused distress to Y and to Mr and Ms X.

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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. 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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What I have and have not investigated

5. Where there is a dispute about the suitability of a school place named in an Education Health and Care Plan (EHC Plan), we would not generally seek to investigate or remedy any lack of education that happens as a result. This is because it is unlikely the disagreement about the school’s suitability is severable from the child’s lack of education. However, I would not have expected Ms X to appeal against the school named by the Council in August 2023. This is because it was quickly evident that this school could not meet Y’s needs and it was clear that the Council would be seeking another placement for Y without the need for Ms X to appeal. However, as Ms X could have raised an appeal about the naming of School B in April 2024, I have only investigated the events of the complaint up to this point.

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How I considered this complaint

6. I spoke to Ms X and considered her complaint. We asked the Council for information and considered its response to the complaint.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Compulsory School Age

8. Children must start full-time education once they reach compulsory school age. They should start school on 31 December, 31 March or 31 August following their fifth birthday - whichever comes first.

Education Health and Care Plans (EHC Plans)

9. 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. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).  

What Happened

Education Health and Care Plan (EHC Plan)

10. Ms X’s son is referred to as Y in this statement. Y has significant physical and intellectual disabilities.
11. On 10 November 2022 Ms X asked for an EHC plan needs assessment for Y.
12. The Council considered the request and, after Ms X chased progress, it decided it should assess Y on 20 February 2023. It took the Council until 22 June to issue a draft EHC Plan and until 16 August 2023 to issue a final plan. The Council was late in carrying out each stage of the process, culminating in the EHC Plan taking 39 weeks, almost double the statutory timescale that the Council must meet.

Educational Placement for Y

13. The law requires children to be at school from age 5. Y was 5 in Spring 2023, so he should have begun to attend school in the Autumn Term, from 31 August 2023.
14. The Council consulted three schools in the summer of 2023. One of these was a mainstream school (School A) the others were special schools. In its response to a consultation at the end of July, School A stated it could not meet Y’s needs. However, the Council considered the school could take steps to overcome the issues it raised. It issued Y’s EHC Plan during the school holidays on 16 August 2023, naming School A.
15. Following input from an Occupational Therapist and visits to the school by the professionals involved in Y’s care, the Council agreed School A could not meet his needs.
16. Between September 2023 when School A was found to be unsuitable and January 2024, no action was taken to seek an alternative placement. Between mid-January and mid-March the Council sent seven consultations. It eventually identified a school placement (School B) at the end of February and named this in a new EHC Plan in April 2024. This was intended as a placement for Y while a permanent place was found elsewhere. The Council says it proved difficult to find an alternative, permanent placement. It found a place it considered could meet his needs in the long term in August 2024. At this point the Council issued a third EHC Plan naming School C.
17. Ms X explained that the situation was very difficult and as there was no progress to find a school place for Y, she was without support. As a result, she took Y abroad to stay with her parents. While away she was able to receive support and arrange some therapy and temporary schooling for Y. Ms X left the UK at the start of December 2023 and she returned in February 2024.

Ms X’s complaint

18. Ms X complained about the delays and lack of school place on 30 December 2023. The Council responded on 28 March 2024. In its response it accepted that Y had been out of education since September 2023. It noted the actions that were being taken (at that time) to find a place. It offered to pay Ms X £2400 in recognition of the missed provision and £300 to reflect the emotional impact this had on them as a family.
19. Ms X was dissatisfied with the action being taken to find Y a place, so she asked the Council to escalate the complaint and she set out a school she wished the Council to consult, and name in Y’s EHC Plan. She made clear that because of Y’s high level of needs, it was very distressing that they had no school place and support for Y.
20. In its further response to the complaint in June 2024, the Council acknowledged the delay in responding at both stages of the process. The Council acknowledged there was a lack of special school placements and explained how Ms X could appeal against the school it had named in Y’s EHC Plan. It suggested Ms X contacted School B to arrange for Y to attend there and noted a review of Y’s EHC Plan would also be carried out. The Council did not uphold the further points or amend its overall findings on the complaint.

Response to our Enquiries

21. The Council acknowledged in response to our enquiries that Y was not at school from September 2023 and it had not ensured Y received any alternative education either. In acknowledgement of this it proposed a remedy. However, this was less than the sum already offered to Ms X. It stated it considered £1500 was appropriate. This was based on one term of missed educational provision. It suggested this was appropriate because it could not have provided an education for the period Y was abroad. The Council offered a reduced sum of £200 to reflect the distress caused to the family by the delay in finding Y a placement.
22. The Council acknowledged that action was needed to increase the number of special school placements it has available. The Council provided us with an excerpt from a strategy that it now has in place to take action in this area, following an Ofsted inspection.

Was there fault by the Council

23. There was significant delay in assessing Y for an EHC Plan and in issuing the plan. It took double the statutory timescale for a plan to be issued. This was clearly fault by the Council and this caused distress to Ms X.
24. There was also significant delay in finding Y a suitable school placement. The Council acknowledges that there are insufficient special school placements available, which it is working to resolve. The lack of suitable school places to offer to Y represents service failure.
25. When a council names a school in an EHC Plan, we would generally consider it is appropriate for a child’s parents to appeal against that place if they consider it is unsuitable. Where there is a dispute about the suitability of a school place, we might decide not to investigate or remedy any lack of education that happens as a result. This is because it is sometimes unlikely that the disagreement about the school’s suitability is severable from the child’s lack of education.
26. I would not have expected Ms X to appeal against the school named by the Council in August 2023. This is because it was quickly evident that this school could not meet Y’s needs and it was clear that the Council would be seeking another placement for Y without the need for Ms X to appeal. However, Ms X could have raised an appeal about the naming of School B in April 2024. As a result, I have investigated the events of the complaint up to this point.
27. Where fault by a council has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
28. In Y’s case, this was a significant year of education (Y’s first compulsory year) and it is evident that Y has a high level of need. No education was provided by the Council. Y only received some limited support, arranged by Ms X while abroad. Therefore, I have recommended that the remedy be based on £2,200 per term.
29. Y was without an education for two full terms and a small amount of a third term. I do not consider it is appropriate to reduce the remedy to reflect that Y was not in the country to receive an education between December 2023 and February 2024, as the Council has suggested. Ms X told us she went to stay with family as a result of the lack of provision and need for support from family members. It is evident that no action was taken by the Council towards finding a placement for a large part of this time and it took a further 8 weeks after Y returned before the Council named a placement in his EHC Plan. As a result, I have recommended the Council makes a payment of £4,500 to recognise the lack of educational provision, and £500 to recognise the distress caused to Ms X.
30. I note the Council is already taking action to address the shortage of suitable placements for children like Y, so I have not made any improvement recommendations around this area.

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Agreed action

31. Within four weeks of my final decision:
32. The Council should send a written apology to Ms X for the failures we have identified. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
33. To recognise there was a failure to provide education to Y between September 2023 and April 2024, the Council should make a payment to Ms X of £4,500.
34. To recognise the distress caused to Ms X from the delayed Education Health and Care Plan and the delay in finding Y an educational placement, the Council should pay Ms X £500.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. There was fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman