Summary: Mrs X complains the Council did not properly deal with education provision for her daughter Y. The Council is at fault because tutoring provided was not good enough and there has been delay in making further provision. Y suffered loss of education provision. The Council should apologise to Mrs X and Y and pay Mrs X £3000.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council did not make proper arrangements to deliver education to her daughter Y.
2. Mrs X says Y has suffered educational loss, Y’s mental health has been affected and Mrs X has suffered avoidable distress.

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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. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (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 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

7. I spoke to Mrs X about his complaint and considered documents she provided. I considered the Council’s response to the Ombudsman and the supporting documents it provided.
8. 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

What happened?

9. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
10. Y has an EHC Plan under which she received Education Other Than At School (EOTAS) education provision. The Council arranged for tutors to deliver education to Y from September 2023.
11. Mrs X raised concerns about the tutoring provision with the Council in November 2023. The Council made investigations with the service provider. It ended the previous arrangements in December 2023 and asked the provider to source other tutors with SEN experience.
12. The service provider responded in January 2024 that it could not recruit any tutors to deliver education to Y.
13. The Council made a referral to another service provider in February 2024. Mrs X did not think the proposed tutor was right for Y. Consequently, the Council made referrals to other providers in April 2024. A suitable provider was found which was able to start delivering education to Y in early May 2024.

Analysis

14. After reviewing Mrs X’s concerns about education provision in November 2023, the Council has accepted that the provision was not good enough because planning lacked detail, clear learning objectives and how resources would be used/adapted. This is service failure by the Council. Y did not receive proper education between September and December 2023.
15. There was then a significant delay between December 2023 and February 2024 where Y received no education at all. This is fault by the Council. Y did not receive any education between December 2023 and February 2024.
16. There was further delay between February and April 2024 which was due to the Council responding to Mrs X’s belief that a proposed tutor would not be right for Y. This is not fault by the Council.
17. In total, Y has not received proper education provision for one and a half terms.
18. The Ombudsman’s Guidance on Remedies says, “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss.”
19. Y has received counselling. Mrs X says this has helped her a lot.
20. Mrs X says she is happy with the current tutoring arrangements for Y.

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Agreed action

21. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X and Y for the fault found in this decision We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £3,000 in respect of Y’s lost educational provision. This takes into account Y’s circumstances, the cumulative impact of lost educational opportunity and that some provision, albeit flawed, was made between September and December.
22. The Council should provide us with evidence it has complied with the above actions.

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Final decision

23. I have found fault by the Council, which caused injustice to Mrs X and Y. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman