Summary: We will not investigate Ms X’s complaint about the Council’s failure to share a consultation response with her, which she said caused her son to miss a year of education. We asked the Council to remedy the injustice caused and it agreed to apologise and make a symbolic payment to Ms X.

The complaint

1. Ms X complained her son, Y, had missed a year of full time education from September 2023 due to the Council’s failure to send her the consultation response from her preferred school, despite repeated requests for this.
2. Ms X said this meant Y was educated at home and became isolated, which affected all aspects of his development. It also meant the family incurred extra costs whilst Y was at home and Ms X lost income.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
8. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

9. I considered information provided by Ms X and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

What happened

11. The Council issued a final Education Health and Care Plan (EHC Plan) for Y on 9 May 2023. This named school 1, a mainstream secondary school, in section I. Y was already on the Roll for school 1. The Council’s cover letter explained Ms X had a right of appeal to the SEND Tribunal if she disagreed with the EHC Plan. Ms X did not appeal because she said appeals take too long.
12. In May 2023, after issuing Y’s Final EHC Plan, the Council consulted other schools, including Ms X’s preferred school, school 2, a special school. School 2 responded in June 2023 that it could meet Y’s needs and could offer a place from September 2023. The Council accepts it overlooked considering this response. It did not send a copy of the response to Ms X until June 2024, in response to a subject access request.
13. Y did not attend school 1. Ms X said he could not attend due to anxiety as a result of bullying that had started at his primary school. School 1 arranged alternative provision in the form of online tuition, with occasional in-person events. The annual review, held in January 2024, recorded Y was engaging well with the online tuition, although Ms X reported he was missing out on opportunities to develop social skills and relationships with peers. In March 2024, the Council decided to maintain Y’s EHC Plan without amendment. Its letter said it considered Y’s EHC Plan accurately reflected his special educational needs and both the placement and the support in the plan remained appropriate. It set out Ms X’s right to appeal to the SEND Tribunal if she disagreed with its decision.
14. Despite that decision, the Council continued to consult with other schools, including special schools, in line with Ms X’s preference. Following a complaint from Ms X in July 2024, the Council agreed to name school 2 and issued a final amended EHC Plan in August 2024. Y attended school 2 from September 2024.

My assessment

15. Ms X complained to us in November 2024. We would not usually investigate events more than 12 months before the complaint to us, but I note Ms X was not aware of the consultation response from school 2 until June 2024. I have therefore decided to consider the period from May 2023.
16. Ms X had a right of appeal if she disagreed with the school named in Y’s final EHC Plan dated 9 May 2023 and it was reasonable for her to exercise that right. That said, I accept she might have made a different decision about appealing if she had been aware school 2 could offer Y a place from September 2023.
17. If we investigated further, it is likely we would find fault with the Council for not considering and sharing the consultation response from school 2 with Ms X.
18. I cannot say, even on balance, whether the Council would have issued an amended EHC Plan naming school 2 if it had considered the consultation in 2023. It maintained at the time, and again in March 2024, that a mainstream school could meet Y’s needs. The fact it has since agreed to name school 2 does not indicate it would have done so in 2023. However, Ms X is left with some uncertainty about whether the outcome would have been different but for the Council’s fault in not sharing the consultation response with her.
19. It is also likely we would find fault with the Council’s delay in issuing its decision to maintain Y’s EHC Plan following the annual review in January 2024. This caused Ms X avoidable time and trouble pursuing the Council for a decision.
20. We asked the Council to take specific action to remedy the injustice caused by the failures set out at paragraphs 17 and 19. It agreed to carry out the following action within one month of the date of the final decision:
• Apologise to Ms X for the uncertainty caused by its failure to share the consultation response in June 2023 and for the avoidable time and trouble caused by its delay in issuing a decision after the annual review in January 2024. Its apology should be in line with our guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice; and
• Pay Ms X £600 for the injustice caused.
21. The Council has already acted to improve its communication with schools to ensure consultation responses are not overlooked in future.
22. Y did not attend school 1 between May 2023 and July 2024. Although I do not consider this was as a direct result of overlooking the consultation response, as explained above, I note the Council had a duty to secure the special educational provision in Y’s EHC Plan was delivered in that period under section 42 of the Children and Families Act 2014.
23. The Council ensured a place was available for Y at school 1 throughout. It considered Y could attend and that school 1 could meet Y’s special educational needs. Although it did not accept that section 19 of the Education Act 1996 was triggered, it exercised discretion to arrange education at home, which it considered provided a suitable education for Y and which Y was able to engage with. I also note that much of the support set out in section F of Y’s EHC Plan envisaged Y attending a mainstream school and could not have been delivered at home.
24. We will not investigate this aspect further because there is insufficient evidence of fault by the Council to justify this. In any case, as mentioned before, Ms X had a right of appeal to the SEND Tribunal if she disagreed with the placement named in the EHC Plan issued in May 2023. She had a further right of appeal when the Council issued its decision to maintain the plan without amendment in March 2024. If she was unhappy with the school named it was reasonable for her to exercise her appeal rights.

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Final decision

25. We have upheld this complaint, which the Council has agreed to resolve early by providing a proportionate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman