Summary: We have upheld Miss X’s complaint about the Council’s failure to provide suitable alternative provision to her child since 2023. This is because the Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused.

The complaint

1. Miss X complains the Council failed to provide suitable alternative provision to her child since 2021.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Miss X complained about the Council’s failure to provide suitable alternative provision to her child since 2021. Therefore, she is complaining about matters that occurred more than 12 months ago. However, I cannot see any good reasons for why Miss X did not complain to us earlier. Therefore, I have not exercised discretion to consider matters as far back as 2021.
7. I can consider the Council’s actions within the last 12 months, from September 2023 onwards. This was within 12 months of when Miss X first complained to the Council.
8. In its complaint response, the Council accepted there had been delays in the annual review process.
9. The Council should have issued the child’s final education, health, and care (EHC) plan by December 2023. The Council eventually made the decision the named school was no longer suitable. It is likely that, if not for the delay in the annual review process, the Council would have reached this decision earlier.
10. However, it is not possible to say, even on balance, whether the Council would have named an alternative school if it had appropriately finalised the EHC plan in December 2023. The Council did name the new school in April 2024 but there is uncertainty about whether the Council would have named that same school earlier if not for the delay.
11. If the Council had named a new school, then the Council’s position would be that school was suitable and available. Therefore, any dispute over the suitability of the school would be for the SEND Tribunal to consider and the period would be outside our jurisdiction. However, it is also possible the Council may not have named a new school. Given this, I am satisfied the delay in the annual review process has caused some uncertainty.
12. The Council has already offered £400 to recognise the uncertainty caused by the delay in the annual review process. I am satisfied this is an appropriate offer, which is in line with the Ombudsman’s guidance on remedies. Therefore, no further remedy is appropriate.
13. I am satisfied we cannot investigate the period April to August 2024 as it is out of our jurisdiction. This is because the Council’s position was the named school in the final EHC plan was suitable and available to the child. If Miss X disagreed with the suitability of the placement, she had the right to appeal to the SEND Tribunal. The evidence showed Miss X used her right of appeal.
14. The Council accepted it had delayed in finding appropriate alternative education for the child and that it should have provided alternative provision from September 2024. This is because the named school placement gave notice on the placement in August 2024. The Council’s offered remedy for this was £500.
15. The Council’s offer was not in line with our guidance on jurisdiction as we would expect an amount ranging between £900 to £2400 per term to recognise loss of education/provision.
16. We therefore asked the Council to make a payment of £2000 per term to recognise the loss of education/provision for the period September to October 2024. In deciding this figure, I have considered the fact the child received no education at all and received none of the special education needs provisions as set out their EHC plan, including speech and language intervention. I have also noted the child was not in a crucial year of their school career as they were not yet in their GCSE years. I consider the child lost education for roughly one school term.
17. The Council has already paid Miss X £900. Therefore, it is to pay a further £1500.

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Agreed action

18. The Council agreed to resolve the complaint and will complete the above within four weeks of the final decision.

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Final decision

19. We have upheld this complaint because the Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman