• The complaint
• What I have and have not investigated
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complains the Council has not dealt properly with her son Y’s education. The Council did not ensure Y’s Special Educational Needs (SEN) provision was met, did not consider whether Y needed alternative education provision properly and provided inaccurate information in its complaint response. Y lost some educational opportunity and Mrs X suffered avoidable distress. The Council has agreed to apologise, pay Mrs X £2025 for Y’s lost provision, pay Mrs X £200 for further avoidable distress, provide training and guidance to staff and provide a report to the Ombudsman.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains that the Council:
   • did not properly complete an Education, Health and Care Needs Assessment (EHCNA) for Y in 2019;
   • did not properly obtain a school place for Y in 2020;
   • did not obtain an appropriate placement for Y in 2020;
   • failed to secure the provision set out in her son Y’s Education Health and Care Plan (EHCP), specifically relating to Occupational and Social Emotional Mental Health therapy sessions.
   • did not properly provide Speech and Language Therapy (SaLT) for Y;
   • acted unprofessionally and immorally.
2. Mrs X says Y has missed out on provision to which he was entitled, to the detriment of his education and wellbeing. She has also spent a considerable amount of time dealing with the issues.

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What I have and have not investigated

3. I have not investigated Mrs X’s complaint about an EHCNA because this is a late complaint and Mrs X had a right of appeal.
4. I have not investigated Mrs X’s complaint about a school place as this is a late complaint.
5. I have not investigated Mrs X’s complaint about a placement because there is no indication of fault that would justify an investigation.
6. I have investigated Mrs X’s complaint about EHCP provision.
7. I have not investigated Mrs X’s complaint about SaLT provision as this did not form part of her complaint to the Council and there is no indication of fault that would justify an investigation. The Council should deal with any complaint by Mrs X regarding this separately.
8. I have investigated aspects of Mrs X’s complaint about unprofessional conduct in relation to complaint responses and false/incorrect information being provided. I have not investigated other aspects of Mrs X’s complaint about unprofessional and immoral conduct because there is not enough injustice to warrant an investigation, other bodies are better placed to investigate and there is no indication of fault to justify an investigation.

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The Ombudsman’s role and powers

9. 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)
10. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
12. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
13. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
14. 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).
15. 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

16. I spoke to Mrs X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
17. 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

Special Educational Needs

18. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
19. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
20. The council has a duty to secure the specified special educational provision in an EHCP 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)

Alternative Education

21. 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. [The provision generally should be full-time unless it is not in the child’s interests.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
22. 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)

What happened?

23. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
24. Y is 8 years old and has Autistic Spectrum Disorder (ASD).
25. Y was issued with an EHCP in July 2020. He began to attend School A, which was Mrs X’s preference, in September 2020.
26. Mrs X was unhappy with the education being provided by School A and asked for an emergency annual review for Y’s EHCP in October 2020.
27. The annual review was held in November 2020.
28. Mrs X said School A was unable to meet Y’s needs and asked the Council to provide alternative education provision until a new school could be found.
29. Y did not attend School A after the annual review meeting in November 2020.
30. The Council met with Mrs X later in November 2020 to discuss her concerns.
31. Mrs X complained to the Council in early December 2020. The Council considered Mrs X’s complaint at three stages. It provided a response at stage one in December 2020, a response at stage two in March 2021 and further response at stage three in April 2021.

Analysis

32. I note that the Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus’ was withdrawn in September 2020. The Council says at the time of these events it was experiencing a range of impacts, particularly in terms of staffing levels, availability of professionals from other agencies and the return of the duty to secure special educational and health care provision in accordance with Education, Health and Care Plans.

Section F EHCP provision

33. The Council upheld Mrs X’s complaint regarding:
    • the non-provision of appropriate therapy sessions for Y by School A, specified in Y’s EHCP.
    • that Y did not receive a challenging curriculum, specified in Y’s EHCP.
34. The Council therefore did not fulfil its duty to make provision for Y’s SEN for approximately nine weeks, between September 2020 and November 2020. This is fault by the Council. Y therefore lost some education and SEN provision between those dates.
35. The Council also upheld Mrs X’s complaint, “regarding tuition being offered, but then not being implemented effectively (until March 2021). I am also accepting that when it became untenable to continue with discussions to retain School A as an option, that the steps taken could have been communicated more clearly and actions regarding tuition should have been implemented more effectively at that time.”
36. Minutes from a meeting between the Council and Mrs X show that retaining School A as an option was impossible from 20 November 2020.
37. I have seen an email dated November 2020 showing the Council investigated the provision of therapies and determined there was no capacity to deliver them before April 2021.
38. Emails show the Council initially offered Mrs X tuition for Y for 10 hours per week in late November 2020, but this was rejected as insufficient because it would not meet Y’s needs as set out in his EHCP.
39. The Council’s stage two complaint response outlines that a higher level of tuition, initially 15 hours per week with the possibility to extend further, was arranged from March 2021.
40. It is clear that School A offered to send work home for Y while he did not attend and this was refused by Mrs X. I note this would not have constituted full time education.
41. The Council therefore did not fulfil its section 19 duty, as set out in paragraph 20 above, for three months, taking account of school holidays, between November 2020 and March 2021. This is fault by the Council. Y therefore lost some education and SEN provision between those dates.

Unprofessional conduct - Complaint response

42. I have reviewed Mrs X’s complaint and the Council’s complaint responses.
43. At stage two of its complaints process the Council clarified with Mrs X what the points of her complaint were. Mrs X confirmed that the Council has provided a reasonable summary of her concerns. The Council’s subsequent complaint response dealt with the issues Mrs X raised. This is not fault by the Council.

Unprofessional conduct – Incorrect information

44. The correspondence I have reviewed shows the Council was not clear about the status of the November 2020 annual review.
    • Mrs X requested an emergency review in October 2020.
    • The meeting took place and was recorded in minutes as, “emergency meeting’, and was attended by the annual review administrator.
    • The Council told Mrs X the meeting was a TAC meeting after it took place, before accepting it was an emergency EHCP annual review.
45. The Council agreed in its stage two complaint response that it had provided incorrect information to Mrs X and upheld her complaint in several respects concerning the provision of inaccurate and conflicting information.
46. The Council’s stage two response states, “I/we are in total agreement with you that the LA has the statutory responsibility to provide Y with a suitable education”, and also that, ”Where the LA has commissioned a place from a provider, the responsibility to deliver that provision rests with the provider”. The evidence indicates the Council agreed it had a statutory duty but believed it had discharged this when a place had been commissioned. This is not correct, as stated in paragraph 19 above, demonstrating a fundamental error in the Council’s understanding of its responsibility.
47. The multiple examples of inaccurate information and misunderstanding of its duty cover a spread of issues with different impact ranges. On the balance of probabilities, I consider the cumulative effect of the failings accepted by the Council and the further fault identified in this decision amounts to service failure by the Council. The impact of this service failure caused avoidable distress to Mrs X and contributed to a breakdown in relationship between the parties. I note that the Council accepted in its stage two complaint response that the meeting was an annual review and apologised for this.

Action by the Council

48. In its stage two response to Mrs X, the Council:
    • apologised for the parts of her complaint that it upheld;
    • agreed it would pay a sum of money for lost provision;
    • instructed staff to make accurate timely notes which are shared with families;
    • welcomed the opportunity to learn from her complaint and reflect that learning in its future practice.
49. In its stage three response to Mrs X, the Council proposed to:
    • Pay Mrs X £350 for missed weekly group sessions, which it says would be unable to be made up in Y’s new school;
    • Pay Mrs X £250 for her time and trouble;
    • Pay Mrs X £250 to acknowledge the impact on her for the faults identified through the complaints process; and
    • To deliver all therapy sessions that have been missed since September 2020.

Is there outstanding injustice?

50. I do not consider the Council’s proposed action in relation to the missed therapies is an appropriate remedy. I have seen evidence from the Council that a range of therapy was provided to Y between March and July 2021, including group and 1:1 sessions, as outlined in the Council’s stage three response. This does not however show whether weekly 1:1 sessions delivered by trained school staff have been made up in Y’s new school.
51. I do not consider the Council’s proposed action to be an appropriate remedy for the fault identified in paragraphs 32 and 39 in relation to Y’s missed education provision.
52. I have considered the Ombudsman’s Guidance on Remedies, which says, “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month 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 SEN, any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period, whether additional provision now can remedy some or all of the loss and whether the period affected was a significant one in a child’s school career.
53. Where a child without SEN received part-time education in supportive home circumstances, the remedy payment will usually be at the lower end of the range. Where a child with moderate learning difficulties received no education at all, the remedy payment will usually be at the higher end of the range.”
54. I have also considered the offer of 10 hours per week tuition which could have been available to Y from November 2020 and School A’s offer to send work home when determining an appropriate remedy.
55. I have reviewed comments relating to Y’s progress from September and October 2022, from an Occupational Therapist report and the most recent EHCP annual review.

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Agreed action

56. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks, unless otherwise specified, of this decision:
    • Apologise to Mrs X and Y for the additional fault I have identified;
    • Pay Mrs X £2025 in respect of Y’s lost educational and SEN provision reflecting the following periods:
      1. nine weeks between September and November 2020 at a rate of £300 per month (£675); and
      2. three months between November 2020 and March 2021 at a higher rate of £450 per month (£1350).
    • Provide training to all staff regarding the Council’s responsibilities relating to section 19 alternative education provision;
    • Provide guidance to staff relating to the EHCP annual review process and their responsibilities within it;
    • Undertake a review at director level of the case and provide a report to the Ombudsman in three months outlining its findings and detailing any additional learning or service improvements identified.
    • Pay Mrs X £200 for avoidable distress (in addition to the remedy identified in paragraph 49.).

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Final decision

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

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Investigator's decision on behalf of the Ombudsman

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