The Ombudsman's final decision
Summary: Mrs M’s son, B, missed a considerable amount of education while the Council looked for a suitable school for him. The Council has agreed to provide a suitable remedy.
The complaint
Mrs M complains about her dealings with the Council in connection with the search for a suitable school for her son, B. In particular, Mrs M complains the search took too long and B was without suitable education for many months. She says this had an impact on the whole family.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) Once we are satisfied with a council’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)
How I considered this complaint
I have considered: information provided by Mrs M; and information provided by the Council.
I invited Mrs M and the Council to comment on my draft decision.
What I found
Mrs M’s son, B, has special educational needs. He has had an Education, Health and Care (EHC) Plan maintained by the Council since 2016.
Problems started when B transferred to a mainstream middle school in September 2019. He stopped attending full-time after the October 2019 half term holiday.
The Council held an emergency review of B’s EHC Plan in December 2019 and decided he should attend a special school.
B stopped attending school altogether at the end of January 2020 after an incident, although he remained on the school roll.
The Council arranged alternative provision at a forest school which began at the end of February 2020.
In May 2020, Mrs M and the Council agreed B would attend a special school from the beginning of September. He continued to attend the forest school for the rest of the term.
In September 2020, B was diagnosed with Autistic Spectrum Disorder (ASD) and Oppositional Defiance Disorder (ODD).
B did not settle well at the special school. Mrs M describes his time there as traumatic for the whole family. He was excluded on 20 October following an incident. The Council held an emergency review of his EHC Plan on 3 November 2020 and began the search for a new school.
On 15 March 2021, the Council suggested a school it thought could meet B’s needs. Mrs M visited the school on 20 April. She did not consider it suitable and emailed the Council the same day explain her views.
On 26 April 2021, Mrs M complained to the Council. She said B’s EHC Plan had not been updated since the emergency review in November 2020, and she had been doing all the chasing. She complained that B was only attending the forest school for two and a half days a week and was not receiving suitable education. She said he had lost some of the skills he had learnt at school. She said that B was suffering from anxiety and self-harming. She said he was subjecting the family to physical and emotional abuse. She said the situation was causing unbearable stress. She said the situation was made worse because he only attended the forest school for two and a half days a week. She asked the Council to address the situation as a matter of urgency.
Mrs M emailed the special educational needs service on 5 July 2021. She asked for details of the schools the Council had consulted and the information provided about B’s needs. B was still without a school place, and the forest school had told a child in need meeting it had concerns about B’s future there.
A manager replied on 9 July 2021. She said the Council would arrange a meeting to discuss plans for B’s education from September, but in the meantime he would continue to receive 15 hours per week of alternative provision at the forest school. She explained the Council’s resource panel had declined Mrs M’s request for a residential school, and the Council would continue to search for a suitable school. She said the team would try to improve its communication with Mrs M, and explained that it had re-structured in September 2020 to improve the service it offered.
Unhappy with the Council’s response, Mrs M complained again on 12 July 2021. She said B had been attending the forest school for two and a half days a week since 27 February 2020 and was not receiving suitable education. She was unhappy with the Council’s efforts to identify a suitable school, and the poor communication from the Council.
A senior manager replied on 5 August 2021. He acknowledged communication had been poor and B had been without suitable education since October 2020 when his middle school place broke down. He apologised on behalf of the Council and offered a payment of £2,000 for B’s education (10 months at £200 per month to take account of B’s time at the forest school) and £500 for Mrs M’s time and worry.
Unhappy with the Council’s response, Mrs M complained to the Ombudsman The Council issued B’s final amended EHC Plan on 25 August 2021. Mrs M did not agree with the Plan or the school chosen by the Council and appealed to the SEND Tribunal.
We then began to consider Mrs M’s complaint.
Consideration If children are unable to attend school and would not otherwise receive suitable education, councils must make alternative arrangements for their education. (Education Act 1996, section 19(1)) The education provided by the council must be suitable to the child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) The education must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) For children like B with complex needs which are only beginning to be understood, this is a difficult, but extremely important, job.
We have published guidance on our website which sets out how we expect councils to fulfil their responsibilities. (Out of school… out of sight? Ensuring children out of school get a good education) The Council accepts B missed a considerable amount of education while it attempted to find a suitable school for him. The Council arranged 15 hours of provision a week at the forest school, but this fell short of the full-time education B was entitled to receive. The Council offered a payment for the education B missed and the impact of his absence from school on Mrs M. I welcome the Council’s willingness to accept it was wrong and its attempt to make amends.
Mrs M is unhappy with the remedy offered by the Council.
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 Mrs M and B, we may recommend the Council makes a symbolic payment to acknowledge the impact of its mistakes.
Where a child has missed education, we may recommend a payment of between £200 and £600 per month. We take account of any special educational needs the child has, whether any alternative provision was arranged, and whether additional provision can remedy some or all or the loss.
We may also recommend a symbolic payment where the fault has caused avoidable distress or harm. We only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of between £100 and £300 but may be more in exceptional circumstances.
The Council recognised B was out of school between October 2020 and July 2021 and offered a payment of £2,000 for B’s education (10 months at £200 per month to take account of B’s time at the forest school).
In fact, problems with B’s education started in late October 2019. By January 2020, he had stopped attending school and the Council had recognised he needed a place at a special school. The Council arranged forest school from the end of February 2020. He did not start at the special school until September 2021.
I recommend the Council offer an additional symbolic payment for the education B missed during this time. I do not consider a remedy is needed for the period from late October to December 2019 as the Council took appropriate action, including an emergency review of B’s EHC Plan. However, he received no education in February, and he did not receive full-time provision from March to July when he attended the Forest School. I recommend the Council offer a payment of £2,000 for this period.
For the education B missed between October 2020, when he was excluded from the special school, and July 2021, when the Council issued his revised EHC Plan, the Council offered £2,000 (10 months at £200 per month to take account of B’s time at the forest school). As B only attended the forest school for 15 hours per week, I recommend the Council offer a total payment for this period of £3,000 (an additional £1,000 as the Council has already offered £2,000). This is to acknowledge the provision was not full-time.
The Ombudsman cannot consider Mrs M’s complaint once she appealed B’s EHC Plan to the Tribunal.
The Council offered £500 for Mrs M’s time and worry. I recommend the Council offer an additional £500 to recognise the impact on the family of B’s prolonged absence from full-time education. Mrs M described the physical and emotional abuse the family suffered at the hands of B and the unbearable stress which was made worse by his absence from full-time education.
Agreed action
For the reasons set out above, I recommended the Council offer a payment of £3,500 in addition to the £2,500 it has already offered for the education B missed and the impact on Mrs M and her family. I recommended the Council makes this payment within one month of my final decision.
The Council accepted my recommendations.
Final decision
I have ended my investigation as the Council accepted my recommendations.
Investigator's decision on behalf of the Ombudsman