Summary: Ms B complained that the Council failed to provide her daughter C with a full-time education in accordance with her EHCP since September 2022. We found that the action the Council took in November 2022 adequately resolved the missed education up to 31 October 2022 but we found the Council failed to provide education to C for approximately two months between February and April 2023. The Council has agreed to pay £400 to Ms B for the benefit of C’s education.

The complaint

1. Ms B complained that Buckinghamshire Council (the Council) in respect of her daughter, C, failed to provide her with a full-time education in accordance with her Education, Health and Care Plan (EHCP) since September 2022. She said C has missed out on educational progress and socialising with her peers. Ms B has been caused distress and frustration as C has been out of school for so long.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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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What I have and have not investigated

5. I have not investigated the events prior to September 2022. Ms B complained about events going back to 2019. The Council responded to this complaint in May 2022. It accepted it had not provided an appropriate education to C for eight months and offered a reasonable financial remedy in line with our guidance.

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How I considered this complaint

6. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

8. Ms B’s daughter C has medical conditions which affect her ability to attend school. The most recent EHCP was issued in April 2022 naming her local mainstream school with additional support and therapy.
9. Ms B was not happy with the named school, C was reluctant to attend, and the school expressed concern about whether it could meet C’s needs. By the start of term in September 2022 no transition was in place and C was not attending. Previous online provision had ended due to the expectation C would attend the school. C wanted to continue with the online provision.
10. On 20 September 2022 the Council asked the school to put in place some alternative provision. Ms B complained again that C was not receiving any education. Online tuition started again on 31 October 2022.
11. The Council responded to the complaint on 17 November 2022. It accepted that C had missed out on another half term of education due to poor implementation of the transition process and the failure to include Ms B in the discussions. It offered Ms B £600 for the loss of education and £300 for the impact on C.
12. In January 2023 an Annual Review of the EHCP was done. Ms B, her advocate and C’s social worker attended. The social worker explained that C was socially isolated and spent most of her time alone in her room. This was affecting her mobility and progress. She was very upset at the thought of attending school due to previous bullying problems. She was accessing online tuition, but her attendance was low (between September 2022 and January 2023 her attendance was 43%).
13. The school explained its concerns about whether it could meet C’s needs and said it had contacted an alternative provider (Provider X) about arranging a possible face-to-face session onsite with a small group of other students. Ms B agreed to visit Provider X. The meeting agreed to try Provider X before looking at an alternative specialist provision to name in Section I of the EHCP.
14. The online tuition stopped from 27 February 2023, just before half-term. The school requested if it could be restarted on Mondays and Fridays only, to fit in with the new on-site provision. The school said C was currently poorly and not able to attend. The provider replied that this could be arranged but they were awaiting for funding approval from the Council.
15. In March 2023 the Council arranged sessions at Provider X to supplement the online tuition and assist with socialisation and rehabilitation. C’s medical professionals have said since May 2022 that attending school is essential to aid her rehabilitation process.
16. The new provision had a therapy dog on site and C was afraid of dogs due to negative experiences in her past. C’s social worker discussed this with Ms B prior to the session starting.
17. On 13 April 2023 Provider X said C had only attended one session. C’s online provision restarted on 21 April 2023.
18. In May 2023 Ms B complained to us. In June 2023 Provider X said C had attended once more and coped well with the dog. In July 2023 the Council discovered that C had only attended 2 out of 18 sessions, contrary to what Ms B had said at a meeting with professionals. Provider X said the reasons given for non-attendance were not to do with the dog. The Council plans to continue with Provider X and online tuition in September 2023.

Analysis

19. If Ms B was unhappy with the school named in the EHCP in April 2022 she had a right of appeal to the SEND tribunal. She did not exercise this right and accepted the school as the named placement. C did not attend and wanted to continue with online tuition, which the Council restarted from 31 October 2022.
20. The Council accepted it was at fault for the first half of the autumn term of 2022: its transition implementation and communication were poor. It offered a financial remedy for the loss of education and distress caused. I consider the payment offered was in line with our Guidance on Remedies and was a reasonable resolution for the complaint.
21. From October 2022 C received online tuition. This was not full-time education but appears to be the most C could cope with at that time, as her attendance was only around 50%. Following the Annual Review, the Council arranged more alternative provision to introduce C to some face-to-face sessions onsite with other students. I have not found fault with this approach.
22. However following information provided by Ms B, I note that the online tuition stopped for two months between February and April 2023. The Council did not mention this gap. As C was working out how to get used to the dog at the onsite provision during this period, she was without education completely. This was fault causing injustice.
23. In respect of the onsite provision, I accept C has only attended two sessions since March 2023. Ms B says this is due to the dog, whereas Provider X says C was happy with the dog being there and her non-attendance was due to other reasons. Ms B has provided emails during March and April 2023 regarding the problems with the dog but nothing since then. C’s medical professionals are keen for her to attend the provision to enable rehabilitation to continue. There is insufficient evidence to conclude the Council is at fault for the failure of the sessions with Provider X. It is still available for C to attend and is encouraged by her medical professionals.

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Agreed action

24. In recognition of the two months C was without education between February and April 2023 (excluding the two week easter holiday) I recommended the Council within one month of the date of my final decision pays Ms B, for the benefit of C’s education, £400.
25. The Council has agreed to my recommendation and should provide us with evidence it has complied with the above actions.

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Final decision

26. I consider this is a proportionate way of putting right the injustice caused to Ms B and C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman