Summary: Miss X complained about how the Council arranged alternative provision and special educational provision for her son, Z. The Council was at fault. The fault caused Miss X avoidable frustration and upset and meant Z missed out on educational and special educational provision they needed. To remedy their injustice, the Council will apologise and pay Miss X £4200. The Council recently carried out Ombudsman recommendations to improve its practice so no further actions are needed.

The complaint

1. Miss X complained about how the Council arranged alternative provision and special educational provision for her son, Z, when it knew Z would not have a school place from September 2022 onwards.
2. Miss X also complained about the Council’s communication, including its failure to share Z’s February 2022 Education, Health and Care Plan with her, and its failure to tell her it had found a tuition service with space for Z in January 2023.
3. Miss X said this had a significant impact on Z’s wellbeing, mental health and social skills. She said the events caused her severe distress and anxiety.

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The Ombudsman’s role and powers

4. 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)
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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. Miss X complained about matters dating back to February 2022. I have chosen to investigate the whole period Miss X complained about because the Council took over one year to respond to her complaint, which delayed her coming to the Ombudsman.
9. 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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How I considered this complaint

10. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
11. Miss 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

Relevant law and guidance

Education, Health and Care Plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
13. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

14. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).

Alternative provision

15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
17. 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. It should be on a full-time basis unless, in the interests of the child, part-time education is considered to be more suitable. Government guidance states that part-time one-to-one tuition can count as full-time because it is more intensive.

Complaints procedure

18. The Council operates a two stage complaints procedure. Its policy says it aims to respond to stage one complaints within 20 working days. The Council says it will reply to stage two complaints within 20 working days, up to a maximum of 65 working days for complex cases.

What happened

19. Miss X’s child, Z, attended a mainstream primary school on a part-time timetable because of their needs. In February 2022, the Council sent Miss X a copy of Z’s EHC Plan. The Plan named their existing school until the end of the school year and then a specialist type placement from September 2022, when they would move to secondary school. The special educational provision in the plan noted Z needed:
• support to manage their emotions and navigate and understand social situations;
• a programme to develop their motor skills and awareness of their sensory needs;
• access to fiddle toys and voice recognition software;
• support to develop relationships with peers in the classroom;
• a programme to develop their skills in taking part in a conversation;
• a quiet space to work and time to move around; and
• a handwriting programme.
20. The Council was unable to identify a specialist school for Z to attend by September 2022. In September, it asked some tuition providers if they could support Z. The providers said they did not have any availability.
21. Miss X complained to the Council in early November 2022.
22. In December 2022, the Council contacted more providers to see if they could tutor Z. One said they could begin support in January 2023. The Council did not tell Miss X and does not know why the tutoring did not go ahead.
23. The Council responded at stage one of its complaints procedure in early March 2023. Its complaint response included that it was sorry:
• for the delay responding to her complaint; and
• for its poor communication with her. The Council said Z’s case worker had left the service and it had not been able to assign a new one because of staff shortages.
24. Miss X asked for a stage two response to her complaint a few days later.
25. The Council identified a tuition service to support Z and in March 2023, the service assessed Z and decided they could cope with eight hours of tuition per week. The tuition started that month. Half of the sessions per week were academic and the remainder were focused on improving Z’s wellbeing. The tuition service told the Council it would keep Z’s provision under review and increase it if Z could cope with that.
26. In response to my enquiries, the Council said the tutoring service had been able to provide most of the provision in Z’s EHC Plan. It said the tutor could not deliver the support to help Z build peer relationships because he was not in a school setting.
27. In October 2023, the tuition service asked the Council to hold an annual review. Minutes of the review show Z had been making good progress and was increasingly able to focus during the tutoring sessions. The review heard Miss X was happy with how the tutoring had gone. Both Z and Miss X wanted Z to have a school place as soon as possible.
28. The Council responded to Miss X’s complaint in mid-November 2023. It again apologised for the delay responding to her complaint and said it was taking steps to reduce its complaints backlog.
29. In mid-December 2023, the Council issued a further EHC Plan for Z. The Plan named a mainstream school which Z started attending in January 2024. Miss X has not appealed the placement because the new school was one of her preferred choices.
30. In response to my enquiries, the Council said it agreed it had failed to:
• arrange alternative provision for Z from September 2022 to March 2023;
• seek tuition for Z until September 2022, despite knowing Z did not have a school place at the end of the previous school year in July 2022; and
• ask further tuition providers if they could support Z until December 2022.

Previous Ombudsman investigations

31. A previous investigation by the Ombudsman (22013579) found the Council had failed to secure the special educational provision for a child in similar circumstances to Z. We noted we had already made recommendations for the Council to prevent that kind of fault and it had not worked. We therefore recommended the Council consider the case at its Children’s, Young People and Education Cabinet Committee meeting in November 2023, where the committee should consider whether there were any further actions the Council needed to take.
32. The Committee heard the Council was trying to make long term improvements to its system and that this included having a clear monitoring system for children out of mainstream education. The Council noted children were receiving tutoring much more quickly as a result.
33. In July 2023, we issued a report (22 003 403) against the Council which found 170 people who had complained about special educational matters were waiting for stage one and two complaint responses and had already waited for longer than its timescales. Miss X was one of those people. We recommended the Council apologise to each of the 170 people and update us on its efforts to clear the complains backlog.
34. The Council told us that as of December 2023, it had hired a temporary new manager and five members of staff. It had reduced the backlog to 90 and thought it would be cleared by February or March 2024.
35. We also recently found the Council at fault (22 015 764) for poor communication with a parent of a child with an EHC Plan. We recommended the Council identify areas for improvement in its communication. In February 2024, the Council told us it was carrying out an improvement plan to improve special educational provision in its area. It said the plan addressed poor communication with parents and was being monitored by the Department for Education.

Findings

Alterative provision and special educational provision

36. The Council accepts it was at fault for failing to arrange alternative provision for Z between September 2022 and March 2023. This meant Z was entirely without education for two terms during a key period, when they moved from primary to secondary school.
37. Because Z did not receive any education between September 2022 and March 2023, they also did not receive any of the special educational provision in their February 2022 EHC Plan during that period. The Council has a duty to secure the special educational provision in a child’s EHC Plan and its failure to do so was fault.
38. The tutoring service which started supporting Z in March 2023 assessed their needs and used its professional judgement to conclude Z could cope with eight hours of provision per week. This was logical, considering tutoring is more intensive than learning in class, and Z had been on a part-time timetable while in school.
39. The Council was aware of the service’s decision and that the amount of hours Z would receive would be kept under review. Z’s October 2023 annual review heard an update on their progress, including that they were now more able to focus during the sessions. There was no suggestion Z would benefit from additional hours. I am satisfied the Council had appropriate oversight over Z’s alternative provision, so there was no fault in the provision Z had between March 2023 and January 2024.
40. The Council has confirmed the type of special educational provision in Z’s EHC Plan was almost entirely deliverable by the tutors. The only thing that could not be delivered was the support to help Z form positive relationships with peers. There is no evidence to show how the Council considered whether it could deliver that provision through other means, such as arranging for Z to attend settings like farm school or social activities. This was fault and meant Z did not have access to the full provision in their EHC Plan from March 2023 to January 2024.
41. The impact on Z of the lost educational and special educational provision set out above was significant. The faults also caused Miss X avoidable upset and frustration.

Communication

42. Miss X complained the Council did not send her a copy of Z’s February 2022 EHC Plan. However, the Council has evidenced it did send her a copy, so it was not at fault.
43. In its complaint response the Council accepted it was at fault for poor communication with Miss X, which it said was impacted by Z’s caseworker leaving and staff shortages. I agree with this conclusion, particularly given the Council failed to tell Miss X about the tutor that could start to support Z in January 2023. This caused Miss X avoidable frustration.

Complaints

44. The Council far exceeded its timescales for responding to complaints. It was three months late responding to Miss X’s stage one complaint. Miss X’s complaint was not complex so the Council should have responded to her stage two complaint by April 2023. It did not issue its response until November 2023, seven months late. This caused Miss X further undue frustration.
45. As part of its response to a previous investigation by the Ombudsman, the Council apologised to Miss X for the delay in replying to her complaint. I have considered whether that apology fully remedied Miss X’s frustration and am satisfied the amount of delay justifies a further remedy.

Service improvement recommendations

46. As noted in paragraphs 31-35, the Council has agreed to a number of Ombudsman recommendations to improve its practice and procedures. The Council has recently complied with those recommendations, so I am satisfied there is no need for further ones.

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Agreed action

47. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Miss X for the frustration and upset she felt due to the fault set out in paragraphs 36-37, 40 and 43-44. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
2. Pay Miss X £400 in recognition of that injustice.
3. Pay Miss X £3,800 to recognise the impact of the lost educational and special educational provision on Z. I came to this sum with reference to the Ombudsman’s guidance on remedies.
48. The Council will provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman