Summary: Mrs X complained the Council failed to recognise the loss of education and missed Special Educational Needs provision for her two children. As a result, Mrs X said her children’s education, welfare, and development have suffered. Mrs X said the Council did not offer a suitable remedy for the impact. The Council was at fault for failing to provide educational provision and for failing to give all relevant information to its Special Educational Needs panel.

The complaint

1. Mrs X complained the Council failed to recognise the loss of education and missed Special Educational Needs (SEN) provision for her two children.
2. As a result, Mrs X said her children’s education, welfare, and development have suffered. Mrs X said the Council did not offer a suitable remedy for the impact.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
5. 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)
6. 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

7. As part of the investigation, I considered the complaint and the information Mrs X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Mrs 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

Legislation and guidance

10. 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.
11. 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.
12. 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)
13. 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.

Alternative provision

14. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
15. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
17. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

18. Mrs X has two children. I will call them A and B. Both A and B have EHC plans.
19. A has autistic spectrum condition with a pathological demand avoidance profile. He has limited social communication and social interaction skills and finds social demands overwhelming. A began struggling to attend school in October 2019. A’s SEN provision includes a learning support assistant. He is monitored and reviewed by a consultant paediatrician.
20. B has autistic spectrum condition as well as dyspraxia and severe sensory processing difficulties. He also has anxiety and hypermobility. He has a history of anxiety around school. B’s SEN provision includes a key worker providing one to one support sessions four times a week, staff with skills in autism and anxiety for an hour a week, and a learning support assistant for one to two hours a day.
21. A and B both attended the same alternate education school provider in September 2021. I will refer to it as ‘the provider’. The provider has a centre for in-person learning, but is closed on Wednesdays and operates an online learning service instead.
22. Mrs X contacted the Council on 4 October 2021. She said A’s anxiety over school increased in the last two weeks and his attendance decreased. Mrs X said she was reaching out as she felt the placement was at risk of breaking down.
23. On 2 November 2021, the Council said it was arranging educational psychology reviews for A and B. It asked the provider to arrange annual review meetings in February 2022.
24. Mrs X felt A needed a more urgent review.
25. The Council contacted the provider. It said the West Berkshire Autism Advisory Service is supporting A and the Council hoped they could give advice on increasing A’s attendance. The Council said it discussed strategies with Mrs X on this. The Council asked the provider to enquire about an automotive skills course for A, instead of the online home learning programme. Mrs X told me A’s auto skills course was already being put in place before September 2021. She said the Council did not do anything more than was already in place to support A when the alternative placement broke down.
26. The Council told Mrs X they should continue to gather evidence from the relevant people involved so they can hold a high-quality annual review. The Council said it was open minded about A’s placement and would explore all options.
27. Mrs X said A’s EHC plan was not being followed and this meant he could not increase his hours. His plan states a play-based approach before anything more demanding. Mrs X did not feel comfortable waiting, given the amount of time A had already been out of school.
28. The Council contacted the provider on 12 November 2021 after discussions with Mrs X. It said it was seeking views on one-to-one support for A. It felt this would allow for more individualised activities. It said the provider must put in a formal request with details of funding and the Council’s SEN panel (the panel) would consider it. Mrs X told me the issue was not about funding, but rather about who could source the one-to-one support A needed.
29. Mrs X contacted the Council on 15 December 2021. She said A had become more and more disengaged from the provider and had not attended for the last two weeks due to high anxiety.
30. The provider emailed the Council on 19 January 2022. It said B was very reluctant to join provision on Wednesdays. The provider said this meant it was not providing the five-day provision it was meant to. It asked the Council whether it should keep trying or discontinue with Wednesdays.
31. The Council asked the provider if it explored alternatives or if it could offer support to engage in online learning at the centre.
32. A report from B’s teacher at the provider, dated 16 February 2022, states he settled well and made steady progress. However, he struggled to engage with online learning due to his anxiety.
33. Mrs X emailed the Council on 17 February 2022. She said it was acknowledged A had disengaged from the provider, and finding a school to suit his needs will be more challenging due to his inability to access one. She referred to a more bespoke package of support A’s education psychologist (EP) had recommended.
34. The Council said it would review the EP’s comments when amending A’s EHC plan. The Council also said it would continue working on A’s current support to hopefully improve the present situation. The first steps were for the provider to continue working on additional support. The Council said it would also explore alternate provision as well.
35. Mrs X emailed the Council on 1 March 2022. She said, as she raised at the review, she wanted to propose education otherwise than at school (EOTAS) for A. She said A was anxious and disengaged from attending any school. Going forwards, Mrs X said they needed to focus on engagement and emotional regulation and wellbeing. Once those barriers have been overcome, they can consider A attending school again.
36. Mrs X sent requests for personal budgets for both A and B to the Council on 2 May 2022. She also gave details of amendments to their EHC plans.
37. On 10 May 2022, the panel decided to refuse Mrs X’s request for a personal budget for A. It said the Council was already funding alternative education with the provider, so cannot fund an additional package. It said A’s EHC plan should be reviewed if he was not accessing the provision.
38. The panel also refused Mrs X’s request for a personal budget for B. While it understood B was not accessing the online learning on Wednesdays, it said this provision was available to him, so it was not appropriate to fund alternative provision.
39. The Council explained the panel’s decisions to Mrs X on 12 May 2022.
40. Mrs X could not understand how the panel reached its decisions. She said the Council was not supplying A with any form of education. It was paying for provision he had not been attending for five months. The school confirmed to the Council that the placement had broken down as they were unable to meet A’s needs.
41. Mrs X accepted online provision was available for B on Wednesdays, but she said it was not accessible to him due to his disability. Mrs X said she intended to submit a formal complaint.
42. The Council responded to Mrs X’s complaint on 25 November 2022.
43. The Council confirmed it was clear from its records that A was not accessing suitable education between February 2022 and September 2022. It said it consulted 9 schools in that time, but they either could not meet his needs or did not have availability. The Council said Mrs X’s request for a personal budget for A was turned down by the panel at this time, but if the panel had known A was not accessing education through the provider its decision may have been different. The Council apologised this information was not given to the panel.
44. The Council said it accepted a place for A at a new school provider on 10 August 2022.
45. The Council said the panel also refused a personal budget for B. It accepted the panel was not made aware B could not access online learning as the in-person support from the provider was not available at home. The Council also accepted the panel was not aware Mrs X considered online learning was not suitable for B because it did not address his social communication needs. It said if the panel had been aware the decision may have been different.
46. The Council offered £500 for the period between February 2022 and September 2022 when A could not access suitable education.
47. The Council said it would like to agree a personal budget for B because he could not access online support on Wednesdays.
48. Mrs X emailed the Council about its stage one complaint response on 29 November 2022. She did not consider the amount the Council offered for A reflected the education he missed or the social and emotional development he lost.
49. Mrs X also said B had been without full time education since September 2021. She did not feel the Council recognised the learning B lost.
50. On 6 December 2022, the panel approved a personal budget for B of £1,520 per year. This was made up of two hours’ support per week at £20 per hour. The panel noted, following a recent complaint from Mrs X, it became clear B has been unable to access online learning, as the support from the provider is not available to him at home. The panel therefore decided online learning was not suitable as it did not address B’s social communication needs.
51. The Council sent its stage two complaint response on 19 December 2022. It made a new offer of £1,800 for the time A was out of education.
52. The Council said six months of the personal budget for B was £760, but as Mrs X already received £1,000 for B’s missed provision on 15 October 2021, no further payment was due.
53. Mrs X emailed the Council about its stage two complaint response on 19 December 2022. She still did not consider the amount the Council offered for A was enough (but she was willing to accept it).
54. Mrs X said there was miscommunication about B. She said the compensation the Council awarded was for the period before B started at the provider. This complaint is about B receiving no provision on Wednesdays since starting at the provider in September 2021.

My investigation

55. Mrs X told me A struggled to attend school with the provider from November 2021. She said his school report and his speech and language therapy report both confirm this. An EP supported a bespoke package of learning from home instead, but the Council refused her initial request for a personal budget.
56. Mrs X told me B started with the provider in September 2021. The provider made attempts for B to have live lessons on Wednesdays, but after about six weeks it was clear he could not engage. Mrs X said she raised this with the SEN manager on 1 November. She also raised it during B’s annual review and at various other times.
57. Mrs X said B’s speech and language therapy report describes how an earlier personal budget could have helped B develop his independence. It also explained why live lesson on Wednesdays were not suitable or accessible for him.
58. Mrs X said B missed one day of learning each week with the provider, impacting his learning and social development. The Council was aware of this since November 2021, but did not offer support.
59. The Council told me it offered the lowest amount on the scale (£200 per month) for A’s missed education. On reflection, the Council accepts that was not the best way forward. The Council has offered to increase the payment to £300 per month, making £2,700 in total.
60. The Council said B remained in education which he could access four days a week. It said he remained on roll with a school, and the school should have made provision on Wednesdays when the provider could not.
61. The Council accepts B could not access online learning without support. It has now agreed a personal budget for him to access alternate provision.

Analysis

62. The Council recognised A could not access suitable education. From the evidence I have seen, the Council first wanted to wait for the result of A’s review, with the benefit of updated views from the professionals involved in his support. At that stage, the placement had not broken down. A was attending sporadically and receiving some support. I do not criticise the Council for trying to make the placement work before considering alternatives.
63. The Council contacted nine different schools in its attempts to secure provision for A. While I would not criticise the Council’s efforts here, it remains under a duty to provide education and suitable provision for A. The fact it could not is service failure.
64. The Council also recognised the panel was unaware A was not accessing education when it refused Mrs X’s request for a personal budget in May 2022. That was fault. When the panel was properly updated, it agreed to provide a personal budget. On balance, I am therefore satisfied the panel would have granted Mrs X’s request back in May 2022 if it had known all the details.
65. The Council agreed to increase its offer for A’s missed provision to £2,700. I find this to be consistent with the Ombudsman’s guidance on missed educational provision.
66. B could not access education on Wednesdays between September 2021 and January 2023. The Council later accepted he could not access the education on offer from the provider on these days, and that it did not meet his recognised need to develop his social communication skills.
67. B had over a year of not being able to access provision on Wednesdays. The provider raised the issue with the Council in January 2022. From the records seen so far, the Council did not take suitable steps to address things at that stage.
68. In response to my enquiries, the Council said B was on roll with a school during this time and the school is therefore responsible for his provision. While the school is responsible for providing the education provision in a child or young person’s plan, it is ultimately the Council’s statutory duty to ensure SEN provision is made available. Where provision has broken down or is no longer available, the Council must intervene.
69. When Mrs X applied for a personal budget for B in May 2022, the Council’s panel refused. The Council acknowledged the panel did not have all relevant information, and the result may have been different if it had. That was fault. On balance, I consider the panel would have approved the personal budget in May 2022 if it had all relevant information. The reasons Mrs X gave, and the information available at the time of the decision in May 2022, are the same as when the panel agreed the personal budget in December 2022. This meant A missed out on a personal budget for the provision he could not access for about six months of the school year.
70. Mrs X’s complaint to us follows an earlier upheld complaint which was also about missed educational provision. Mrs X was understandably concerned about the continuing injustice to her two sons of not having suitable educational provision in place. Since the earlier complaint, the Council has arranged alternative provision, and it is now taking the necessary steps to address the areas of provision which broke down. The Council has also agreed to provide Mrs X with further financial remedies, for the benefit of her sons. While I appreciate Mrs X thinks the Council should do more, including providing greater financial remedies, I am satisfied with the steps the Council has taken to remedy the injustice. I am also satisfied the financial remedies are in line with the Ombudsman’s guidance.

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Agreed action

71. Within four weeks of my final decision, the Council agreed to:
• Apologise to Mrs X for not providing the SEN panel with all relevant information.
• Pay Mrs X £2,700 for the benefit of A, to recognise the educational provision he missed.
• Pay Mrs X £760 for the benefit of B, to recognise the personal budget payments he missed out on.
• Remind staff in its special educational needs and disability service the importance of providing all relevant information to the SEN panel.
72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I completed my investigation. The Council was at fault for failing to provide educational provision and for failing to give all relevant information to its SEN panel.

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Investigator's decision on behalf of the Ombudsman