The Ombudsman's final decision
Summary: The Council was at fault as it failed to provide Ms E’s son with alternative education by the agreed deadline following a previous complaint she made to us. The Council has agreed to our recommendations to address the injustice caused by fault.
The complaint
The Council failed to provide Ms E’s son (F) with alternative education by the agreed deadline following a previous complaint she made us. This means F has missed out on educational provision.
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 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) 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.
How I considered this complaint
I spoke to Ms E. I made written enquiries of the Council and considered information it sent in response.
Ms E and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and statutory guidance A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
What happened Ms E previously complained to us about the Council’s failure to provide F with the education and specialist provision set out in his EHC plan. We found the Council was at fault as it failed to provide F with any alternative education when he was not attending school. One of the recommendations we made was for the Council to provide F with alternative education by 27 May 2022. The Council agreed to this.
The Council did not provide F with alternative education by the agreed deadline. It says its main providers were full. It had identified a placement that could meet F’s needs, but there were no places available.
After we made enquiries, the Council told us it had secured a placement for F. F started his placement on 5 September.
Analysis I welcome the Council has now resolved this matter and F is now receiving alternative education. However, its failure to adhere to our recommendations by the agreed deadline means F has been deprived of further educational provision and it has caused Ms E frustration. I appreciate the difficulties the Council faced with securing a placement for F, but it should have made it clear to us in response to our previous investigation the deadline of 27 May 2022 was unachievable. We could have then altered our recommendations accordingly.
We recommended a payment of £6,000 (£500 per month) in our previous investigation to remedy the lack of alternative education for F. This payment did not cover the summer term (April to July 2022) as the intention was for F to receive alternative education. As this did not happen, the Council should pay Ms E a further £1,500 to remedy the failure to provide F with any alternative education during the summer term.
Agreed action
To address the injustice caused by fault, by 18 November 2022 the Council has agreed to: Apologise to Ms E.
Pay Ms E £1,500 (£500 per month) to remedy the failure to provide F with any alternative education during the summer term. We would suggest Ms E uses this payment for F’s educational benefit.
Final decision
There was fault by the Council, which caused Ms E and F an injustice. The Council has agreed to my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman