Summary: Mrs B complains the Council failed to make suitable education available to her son, who has special educational needs. The Ombudsman finds there was fault by the Council in this matter, causing injustice for which a remedy has been agreed.

The complaint

1. The complainant, whom I shall call Mrs B, complains the Council failed to provide her son D with any education between September 2018 and March 2019. D has special educational needs. From March 2019 the Council provided tuition in maths and English but not full-time education and at the time of the complaint the Council had not secured a full-time school place for him. As a result, D has missed education he was entitled to. Mrs D also complains about the impact of this on her working arrangements and on the family.

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What I have investigated

2. I have investigated delay in issuing a final Education, Health and Care (EHC) Plan, and the provision of tuition and speech and language therapy for D in the academic terms between September 2018 and Christmas 2019.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
8. A court judgement reconfirmed that we are unable to investigate a council's alleged failure to provide alternative education for a child with special educational needs who is out of school, when the alleged failure is or could be subject to appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
9. 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.

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How I considered this complaint

10. I considered all the information provided by Mrs B about her complaint. I made written enquiries of the Council and took account of the information and evidence it provided in response.
11. I have taken account of the Ombudsman’s guidance on remedies.
12. Mrs B and the Council had an opportunity to comment on my draft decision and I considered all comments received in response.

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What I found

Legal and administrative information

13. A child with special educational needs may have an 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.
14. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
15. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. The guidance says:

• Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• The whole process from the date of the request until the final EHC Plan is issued must take no more than 20 weeks, unless certain exceptions apply.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
• Where a parent or the young person asks for a particular school, the local authority must consult the school concerned and consider their comments very carefully before deciding whether to name it in the EHC Plan. The school should respond within 15 days.

16. The Education Act 1996 (Section 19) states that 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. This was amended by the Children, Schools and Families Act 2010 (Section 3), which made the duty full-time from 1 September 2011.
17. Statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusion, Councils should ensure children are placed as quickly as possible.
18. Where health needs are consideration, guidance refers to allowing as much education as the child’s health allows.
19. If a child receives one to one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated.

What happened in this case

The EHC Plan

20. Mrs B and her family moved into the Council’s area in July 2018. Mrs B’s son D had an EHC Plan, but it had not been updated since November 2015. Mrs B told the council in the area she had moved from that they had moved away and that she wanted her son D to attend School X in the new Council’s area. The Council in the new area (hereafter ‘the Council’) received this information together with papers notifying it that D’s parents had chosen to home educating D, having withdrawn him from school.
21. On 20 August, the Council contacted Mrs B noting the preference for School X but needed more information about D’s hearing impairment. When a request is made for a specialist placement, a provision panel makes a recommendation on the most suitable type of placement. The Council told Mrs B that D’s case would go to the provision panel on 27 September 2018. Mrs B promptly provided requested information about her son’s medical diagnosis and needs relating to his auditory processing disorder, as well as a report from the speech and language therapist when this was requested. She also tried several times to call the officer she had been dealing with and sent several emails, but she received no response. In fact, the officer had left the relevant team and the work was not picked up until December 2018, when the preparation for consideration by the provision panel was done. The case did not get to the provision panel until January 2019. The delay, and the associated communication failings, were fault.
22. After the panel meeting, in February 2019 the Council invited Mrs B to a meeting to discuss the way forwards. Following this, at the beginning of March it issued a draft EHC Plan naming elective home education rather than School X which Mrs B had requested. Mrs B then told the Council she wanted School Y.
23. In January 2020, the Council issued a final EHC Plan naming elective home education. Mrs B was then able to appeal to SEND, to seek to have School Y named on the EHC Plan. In February 2020, the Council issued a final amended EHC Plan naming School Y.
24. The Council was put on notice as early as August 2018 that Mrs B wanted a school named for her son in his EHC Plan and so was not ‘electively home educating’. The Council should then have taken steps without undue delay to find a school place for D and name it in an EHC Plan. The failure to do so meant that there was a delay in the production of a final EHC Plan against which Mrs B could appeal. The delay was fault. The Council has referred to a delay by the school in responding to consultation, and it acknowledges this should have been followed up by its officers or a decision taken to name the school.

Education out of school

25. Provision of home tuition began for C on 27 March, with six hours maths provision each week. The evidence indicates that this amount of tuition was agreed as appropriate at this point, taking account of concerns about C becoming fatigued, but that the plan was to increase it when C was able to manage more time. From 4 April an additional five hours each week was put in place, giving a total of 11 hours a week.
26. Between 30 April and 12 May there was no English tutor available. C continued with his six hours each week tuition in maths. From 13 May a new English tutor began work with D, providing six and a half hours tuition a week bringing the total to 12 and a half hours a week. Science was to begin once D was deemed ready.
27. Evidence in text messages provided by Mrs B show that on 4 June she asked the tutoring provider for an increase of an hour a week in English, and in the same month she also sought a broader curriculum for her son. On 1 July she again asked for an increase in hours: she wanted at least six hours tuition a day. On 8 July, the provider said the tutors could increase their hours but authorisation for the increase was awaited from the Council. By 16 July, the provider said the authorisation had not yet been received but was being chased, and said: “The increase in hours should be fine as the referral states ‘as many as possible’”. In respect of the request for six hours tuition a day, Mrs B was advised that six hours a day would be too much for the child, and that three hours a day one-to-one tuition was the equivalent of a full day in school. The law allows councils to view one-to-one provision as worth more than provision delivered to groups. On 3 October Mrs B then requested an increase in hours to 15 a week, to reflect this, and she wanted it to start straight away. However, the provider then said that the existing tutor could only provide six hours a week and so another tutor was being sought for the additional nine hours. There is no reference in this evidence to any professional assessment that D would not be able to cope with 15 hours a week: the evidence indicates that this was in fact a supply problem.
28. From 23 September 2019, 12 hours a week were timetabled for English, maths, and science, but this did not start due to difficulties agreeing the timetable with Mrs B. On 7 October, provision began again, but only six hours a week maths: a tutor was being sought for the remaining hours. From 16 October, until D became unwell before Christmas, hours increased to ten a week.
29. There is evidence to support the provision of less than 15 hours a week for part of the period under consideration (September 2018 to Christmas 2019), for example in March when the tuition began it was reasonable to start on a reduced timetable given concerns about fatigue. However, shortly after this Mrs B felt that her son could cope with an increase in hours and requested the same, and on balance I find there is insufficient evidence to support a contention that he would not have coped with 15 hours a week after an initial introductory period. It is accepted that there were some difficulties arranging timetabling with Mrs B at the beginning of the autumn term, but overall I am satisfied that the Council failed to make appropriate provision for D in the period between September 2018 and December 2019, and that was fault.

Speech and language therapy

30. Regarding speech and language therapy (SALT), D’s EHC Plan from November 2015 made no reference to any specific provision. When the Council gathered advice on SALT in May 2019 to inform the new EHC Plan, the recommended provision was ten hours in school over the next academic year. The report from the SALT service for the EHC Plan stated that the direct therapy is most effective when he is in an educational setting and so it could not deliver the direct therapy sessions at this time. But as D was not yet in a school setting he was not receiving any SALT input.
31. The Children and Families Act is clear that councils must deliver the provision set out in a child's EHC plan. The Act does not make allowances for children who are out of school. In D’s case no SALT provision was specified in his existing EHC Plan, and so until the new plan was finalised the Council was not under the duty imposed by the legislation to provide it. Nevertheless, a professional had recommended SALT input in May 2019, and it would have been reasonable for the Council to consider what therapy might reasonably be appropriate in the interim. There is some recognition of this in the Council’s response to Mrs B’s complaint in January 2020, when it noted D had been allocated 10 hours of support in May by the speech therapist and said it would liaise with the SALT service to ensure this support was provided as soon as possible.

Analysis

32. I have set out above that there was fault by the Council in several areas. These faults led to injustice, principally for D in the loss of education, but also to his family. Mrs D was caused frustration by the Council wrongly placing the onus on her to educate her son when she had requested a school and by the Council’s poor communications, and put to considerable time and trouble seeking to resolve matters.
33. The Council acknowledged several faults when it responded to Mrs B’s complaint. It accepted that there had been delays in progressing the EHC Plan for D to name a school; that D’s name should have been put on to its out-of- education list as a child with an EHC Plan for weekly review; and that its communications with Mrs B when she moved into the area and when she was asking about home tuition hours were not as good as they should have been. The Council has accepted that there was a period when C was without educational provision and a period when he was not receiving the provision he should have had. In addition, the Council recognises that Mrs B was put to some time and trouble in pursuing these matters and her complaint about them.
34. When it responded to Mrs B’s complaint the Council initially offered a payment of £900, an offer it subsequently increased to £3,000, although there was some confusion caused when a further letter again referred to the initial offer of £900. The Council also apologised for the failings it had accepted and set out some service improvements it was making as a result of issues raised by the complaint.

Agreed action

35. Having regard to the Ombudsman’s guidance on remedies, I recommended that within four weeks of the date of the decision on this complaint the Council:

• Issues Mrs B with a formal written apology;
• Pays Mrs B a total of £4,000, of which £3,000 should be used for the benefit of D’s education; and
• Confirms to Mrs B and to the Ombudsman the steps it has now taken to address the issues raised by this complaint.

36. The Council has agreed to my recommendations. The funds to be used for the benefit of D’s education will be assigned to the school named in his EHC Plan, to be spent on his educational needs.

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Final decision

37. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

38. I did not investigate the provision of tuition after Christmas 2019. This is because once the Council issued the EHC Plan in January 2020, Mrs B had the right of appeal to SEND in respect of the content of that Plan.

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Investigator's decision on behalf of the Ombudsman