Summary: Ms X complained her daughter, C did not receive English tutoring as required in her Education, Health and Care (EHC) Plan. This had an impact on C’s education and caused Ms X and C stress. The Council is at fault for failing to provide C with English tutoring.

The complaint

1. Ms X complained her daughter, C has not received English tutoring as required in her Education, Health and Care (EHC) Plan. This had an impact of C’s education and caused Ms X and C stress. Ms X is not satisfied with the Council’s complaint response. Ms X wants financial compensation for C’s missed education.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Children and Families Act and Stautory Guidance: SEN and Disability Code of Practice 0-25 years.
5. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

6. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
7. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
8. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

What happened

9. I have summarised below the key events; this is not intended to be a detailed account.
10. C has an EHC Plan. The Council commissioned a tutoring service to provide five hours of weekly tutoring for C, shared equally between English and Maths. The tutoring was in place from early June 2022 and lessons started in early September 2022. C remained on the roll at her previous school, which was named in the EHC Plan.
11. In October 2022, Ms X told the Council C had missed two English lessons with the tutoring service because the teacher cancelled.
12. In the middle of October, the Council Casework Officer contacted the tutoring service about the missed lessons. The tutoring service explained the English teacher was ill. It was looking for a new teacher for C.
13. From the middle of October, C’s previous school provided access to English tuition while the tutoring service looked for a new tutor. Ms X told me these lessons were not appropriate for C as she was not able to be in school. She also said the sessions were cancelled.
14. The tutoring service identified a new English teacher for C in November who could start immediately. The teacher did not have qualified teacher status or SEN qualifications. C was due to have lessons in December but the teacher cancelled due to medical reasons. Lessons were scheduled from January onwards, again the teacher cancelled.
15. In conversation with me, Ms X said C got a new tutor C in April, six weeks before she was due to take her GCSEs. Ms X said she told the Council about the tutors missing sessions on several occasions. She said she felt the Council lacked concern or curiosity and abdicated responsibility for the issue.
16. Ms X complained to the Council in early May 2023. It issued a stage one response in the middle of May and a stage two response in the middle of June. The Council said it had raised the issues with the Managing Director of the tutoring service who confirmed the previous teacher was no longer working for the company and a new tutor had started working with C. It said the tutoring service had taken a more rigorous approach to staff accountability and was investing in recruitment. It apologised for the poor service Ms X and C had received and was confident the changes made by the tutoring service would improve the situation in the future. It assured Ms X it would monitor the situation.

Analysis

17. C’s EHC Plan says she should receive five hours tutoring, shared between Maths and English each week. C did not receive consistent English tutoring from October 2022 to April 2023. This is around a six-month period leading towards C’s GCSE exams. This is fault.
18. During the six-month period, the Council increased C’s maths provision. Whilst this is not ideal, the Council were creative and provided some education for C.
19. The tutoring service were in correspondence with Ms X to arrange the tutoring and provide updates on tutor availability. The Managing Director also contacted Ms X to address her concerns directly. The Council contacted the tutoring service, both at a Casework Officer level when the issues arose, and at a Manager level on receiving Ms X’s complaint and provided updates. The Council reacted to the situation, corresponded with tutoring service, requested it provided suitable tutoring for C and updated Ms X. I have not seen evidence the Council lacked concern or curiosity.
20. The Council explained to Ms X that it commissions the tutoring service because it uses qualified teachers with experience in SEN and has a record of providing a good standard of education. In C’s case, the tutoring service allocated a tutor who was not qualified. This goes against what the Council expects of the service provided by the tutoring service. The Council is not involved with recruitment and scrutiny of tutors and expects the tutoring service to do this. As the Council commissioned the tutoring service to provide lessons on its behalf, it remains responsible for those services and for the actions of the tutoring service providing them. Any failings of the tutoring service are failings of the Council. Arranging provisions within the EHC plan is non-delegable. The Council is at fault.
21. In response to my enquiries, the Council said it told the tutoring service its tutors must be qualified teachers. The tutoring service no longer employs the unqualified teacher and all later teachers allocated to C were qualified. The Council acted to ensure similar situations did not happen again.
22. The Council and the tutoring service have improved how work is monitored. Council Caseworkers can log into the tutoring service portal and can access records and lesson reports rather than corresponding by email.

Was there fault causing injustice?

23. The Council is at fault for the tutoring service failing to provide a qualified English tutor for C from October 2022 to April 2023, before C took her GCSE exam in the summer term. C missed out of English tutoring; this is her injustice.
24. The Council were proactive and asked the tutoring service to find a new tutor.

Remedies

25. The Council has apologised to Ms X and made service improvements. The Council improved how it monitors individual cases and the tutoring service has invested in recruitment of tutors.
26. As well as the apology and service improvements, within four weeks of my final decision, the Council agreed to pay Ms X for the benefit of C, £450 to recognise she missed six months of English tutoring.

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Agreed action

27. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the actions of the tutoring service, we have made recommendations to the Council.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. The Council failed to provide C with consistent English tutoring from October 2022 to April 2023.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman