The Ombudsman's final decision
Summary: Ms B says the Council failed to provide education to her son when she moved into the Council’s area and unreasonably refused to take her complaint to stage two. The Council delayed putting in place provision for Ms B’s son. An apology and payment to Ms B is satisfactory remedy.
The complaint
The complainant, whom I shall refer to as Ms B, complained the Council: failed to provide education to her son when he moved into the Council’s area in August 2021; and unreasonably refused to take her complaint to stage two.
Ms B says fault by the Council left her son without education and has added to her mental health issues.
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) If 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
As part of the investigation, I have: considered the complaint and Ms B's comments; made enquiries of the Council and considered the comments and documents the Council provided.
Ms B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
What should have happened The Special Educational Needs Code of Practice (the code) says where a child or young person moves to another local authority, the ‘old’ authority must transfer the education, health and care plan (EHCP) to the ‘new’ authority. The old authority must transfer the EHCP to the new authority on the day of the move, unless the following condition applies. Where the old authority has not been provided with 15 working days’ notice of the move, the old authority must transfer the EHCP within 15 working days beginning with the day on which it did become aware.
The code says the requirement for the child or young person to attend the educational institution specified in the EHCP continues after the transfer. However, where attendance would be impractical, the new authority must place the child or young person temporarily at an appropriate educational institution other than that specified – for example, where the distance between the child or young person’s new home and the educational institution would be too great – until the EHCP is formally amended.
Section 19 of the Education Act 1996 (the Act)) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
The Government has issued statutory guidance on alternative provision (Ensuring a good education for children who cannot attend school because of health needs 2013). This says while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also says the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It says some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.
The Ombudsman has issued a focus report on provision for children out of school. ‘Out of school….out of mind? How councils can do more to give children out of school a good education.’ This says when a child moves into its area, the council should allow the parents to say which school(s) they prefer and try to meet their request. If this does not result in a school place being offered within a reasonable time, the Ombudsman considers the council should provide suitable education in some other way, such as home tuition.
The Council’s corporate comments, compliments and complaints policy (the policy) says the first stage in the complaints procedure is local resolution. This will usually require the relevant manager to respond in writing to the complainant. Complaints should be acknowledged within 5 working days and a response should be provided within 20 working days.
The policy says if attempts to resolve the complaint at stage one are not successful the complainant can ask for the outstanding issues to be considered at stage two. Within 5 working days the Council will notify the complainant if the complaint is to be investigated at stage two. The policy says if the complaint is not to be progressed to stage two the Council will notify the complainant of the decision and the reasons why within five working days.
What happened – education Ms B was living outside the Council’s area with her children. The child who is the subject of this complaint has an EHCP. At the time Ms B’s son was intending to start a construction course for 14-16-year-olds in the previous council’s area in September 2021. However, Ms B contacted the Council on 14 July 2021 to tell it she intended to move into its area. Ms B told the Council about her son’s EHCP, that he was currently accessing one hour tutor time per week and that he was due to start a 14-16 course in construction.
Ms B moved into the Council’s area on 12 August 2021. The Council requested the paperwork from the previous council and that information was provided by the end of August 2021.
The Council’s specialist education panel considered Ms B son’s case on 13 September and agreed to consult specialist settings. The first setting consulted by the Council could not provide Ms B’s son with a place. The second provision told the Council in November 2021 it did not have any spaces available.
The Council identified another provision at Provider X in November 2021.
In December 2021 the Council identified some provision available at Provider Y. The specialist education panel agreed to make that provision until the end of spring term when it intended to consider the case again. Ms B told the Council she did not consider the provision at Provider Y appropriate and reiterated that her son required a construction course.
In January 2022 the specialist education panel agreed provision for Ms B’s son at Provider X. That involved a construction course. Ms B’s son visited that provision in February 2022 and began attending by the end of March 2022.
What happened - complaint handling Ms B put in a complaint about the lack of provision for her son in October 2021. Ms B told the Council her son would not cope in a mainstream or special school and instead needed a practical course at college such as construction. The Council responded to that complaint at stage one on 11 November 2021. As Ms B was not happy with that response she asked the Council to move her complaint to stage two. The Council told Ms B on 19 November it would arrange for an assistant director to provide a further response which would provide a reply within a shorter timescale than would be the case if the Council took the complaint to stage two. The Council provided a further response at stage one on 22 December. When Ms B expressed concern about the Council’s response it declined to take the complaint to stage two as it was satisfied it had provided detailed responses twice at stage one.
Analysis Ms B says the Council failed to provide education to her son when he moved into the Council’s area in August 2021. The evidence I have seen satisfies me the Council knew about Ms B’s impending move into its area in July 2021. Despite that I have found no evidence to suggest the Council began the process of seeking an education placement for Ms B’s son until September 2021. I appreciate the Council had difficulty identifying a suitable placement for Ms B’s son which delayed the provision of education. However, the Ombudsman would expect the Council to consider putting in place alternative provision in the interim, such as home education, pending its ability to identify a suitable placement. I have seen no evidence to suggest the Council considered any alternatives while waiting for a suitable placement for Ms B’s son. That is fault as the Council retains the responsibility for ensuring Ms B’s son received education.
When the Ombudsman has reached a finding of fault we have to go on to consider what injustice that fault caused. Ms B says the delay meant her son missed out on education until March 2022. However, the evidence I have seen satisfies me the Council had identified what it considered a suitable placement by December 2021. The Council is clear this placement could have begun in January 2022. The evidence I have seen satisfies me the reason this placement did not go ahead is because Ms B wanted a placement for her son which provided a practical education in construction which was his area of interest, rather than the provision offered by the Council. Ms B had concerns about whether her son would engage with some of the provision offered by the education provider identified by the Council. That satisfies me that if the Council had offered home education to Ms B’s son in September 2021 Ms B would likely have declined that option as she made clear her son required a construction course. I do not consider such a course could be delivered online or at home. I therefore consider it unlikely Ms B’s son missed out on education from September 2021.
I consider though that if the Council had discussed the option of home education with Ms B at any point before December 2021 it is likely she would have made clear her view that only a construction course was appropriate. So, while I could not say Ms B’s son missed out on education there is a possibility a construction course could have been identified and begun earlier. In those circumstances I consider a suitable remedy would be for the Council to pay Ms B £500 to reflect the time and trouble she has had to go to pursuing the complaint and her uncertainty about whether her son could have started his construction course earlier. The Council has agreed to my recommendation.
Ms B says the Council unreasonably refused to take her complaint to stage two. The Council says its complaints procedure gives it discretion on how to consider a complaint following the conclusion of stage one. The Council says it finds supplementary responses at stage one can be provided within the same timeframe at stage two and is often the most effective way of resolving a complaint. I set out the stage one and two processes in the Council’s complaints procedure in paragraphs 13 and 14. The Council’s complaints procedure makes clear moving a complaint to stage two is not automatic. In this case the Council decided not to progress the case to stage two as it was satisfied it had provided detailed responses at stage one twice. As the Council’s complaints procedure provides for it to decline to take the complaint to stage two I cannot criticise the Council for doing so in this case.
Agreed action
Within one month of my decision the Council should: apologise to Ms B; and pay Ms B £500.
Final decision
I have completed my investigation and uphold the complaint.
Investigator's decision on behalf of the Ombudsman