Summary: Mrs D complained the Council has failed to provide her daughter with the education and specialist provision in her Education, Health and Care plan since the conclusion of Tribunal proceedings. We find the Council was at fault for failing to provide Mrs D’s daughter with the education and specialist provision in her Education, Health and Care plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs D complained the Council has failed to provide her daughter with the education and specialist provision in her Education, Health and Care (EHC) plan since the conclusion of SEND Tribunal proceedings.
2. Mrs D says the Council’s failures have caused immeasurable distress and upset to the whole family. She also says she has spent many hours chasing the Council and she has had to pay for resources and supplies so her daughter could access some education.

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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 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.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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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How I considered this complaint

7. I considered information Mrs D submitted with her complaint. I made written enquiries of the Council and considered information it sent in response.
8. Mrs D 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 statutory guidance

9. A child with special educational needs may have an Education, Health and Care (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. Section F sets out the special educational provision needed by the child or young person.
10. The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.

What happened

11. This chronology sets out a summary of key events in this case and does not detail everything that happened.
12. Mrs D’s daughter, F, has special educational needs and an EHC plan. Her first EHC plan was issued by a different council.
13. Mrs D and F moved to the Council’s area in March 2021. Mrs D had appealed the content of F’s EHC plan to the SEND Tribunal while they were living in the previous council’s area. The Council continued with the appeal.
14. F had been receiving tuition. Mrs D was providing support to the tutor as a second adult.
15. Mrs D’s advocate emailed the Council on 15 September and said Mrs D would no longer be available as a second adult. The tuition provider (Provider A) contacted the Council and said it would stop providing tuition until additional support was in place. It said it could not put its tutors at risk.
16. The SEND Tribunal heard Mrs D’s appeal. It issued an order on 22 September and said the Council needed to amend F’s EHC plan to include Education Otherwise than At School (EOTAS) for up to 25 hours. It also said a second adult was not needed to support the tutor.
17. The Council issued F’s amended EHC plan on 28 September. This said she would receive EOTAS for up to 25 hours. This would include a broad and balanced curriculum to be agreed by the Council, Mrs D and F.
18. The Council emailed Provider A on the same day and asked for an update. Provider A said it could not provide F with a tutor until there was a second adult.
19. The Council responded and asked for a risk assessment to evidence why it could not provide a tutor for F without a second adult. It also contacted other providers and asked if they could assist.
20. Mrs D contacted the Council and said it was failing to implement the provision as ordered by the SEND Tribunal. The Council responded and said it was communicating with other providers.
21. Provider A sent the Council a copy of the risk assessment a few days later. The Council responded and said it was not sufficient evidence. It said the SEND Tribunal had not agreed to a second adult. Provider A responded and re-iterated it would not proceed until a second adult was in place.
22. Mrs D continued to contact the Council and ask for updates. The Council assured her it was looking for alternative providers.
23. The Council agreed to fund a second adult to assist the tutor in November.
24. The Council emailed Mrs D on 8 December and said it had found a tutor that could start from January 2022. It suggested tuition for 10 hours a week initially, and then it would increase to 15 hours a week. Mrs D responded and set out her proposed timetable for F. She said she wanted F to receive 25 hours a week by February half term.
25. F started receiving 10 hours of maths and English tuition a week with a second adult from 6 January 2022.
26. Mrs D complained to the Council. She said F had received no educational provision from 20 September 2021 to 6 January 2022. She said she was now only receiving 10 hours rather than 25 hours. Finally, she said she had to constantly chase for updates.
27. The Council responded to Mrs D’s complaint. It apologised for the lack of communication. It also said it was continuing to monitor the situation to ensure F received a positive outcome.
28. Mrs D referred her complaint to stage two of the Council’s complaints procedure. She said it had been a deeply traumatic experience and F was still not receiving the provision set out in her EHC plan.
29. F’s English and maths tutor was due to go on maternity leave. The Council started contacting other providers.
30. F started receiving three hours a week of biology and chemistry tuition from 7 February. She stopped receiving English and maths tuition on 11 February.
31. The Council contacted Mrs D and said it had not been able to find a replacement English and maths tutor. Mrs D responded and said it knew for months the tutor was due to go on maternity leave. She also asked for an update on the other subjects.
32. The Council issued its stage two response to Mrs D’s complaint. It said despite its efforts, tutoring arrangements had been difficult to manage.
33. The Council decided to hold an annual review of F’s EHC plan. It acknowledged during the review meeting it had not been possible to engage suitable tutors. It agreed to search for suitable tutors for F. Mrs D agreed to look for appropriate educational settings for F.
34. Mrs D raised concerns the second adult was not suitable for F. She stopped working with F on 1 April.
35. F started receiving four hours a week of maths and English tuition from 18 May. English tuition stopped a few weeks later and the Council did not find a replacement tutor.
36. The Council wrote to Mrs D in June and suggested a slow transition to a new school from September onwards. It said F would continue receiving tuition until she could start going into the classroom. It also agreed F would attend school with a teaching assistant. Mrs D agrees with this approach.

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Analysis

37. The Council has failed to provide F with all of the education and specialist provision set out in her EHC plan since the conclusion of SEND Tribunal proceedings. This is fault, which has caused F a significant injustice. She did not receive any education or specialist provision from the date her EHC plan was issued (28 September 2021) until 6 January 2022. She has received very limited education since January 2022, but it is not the full hours and the broad curriculum she is entitled to.
38. I understand the difficulties the Council faced with finding a second adult and tutors for F. However, it has a legal and non-delegable duty to provide the education and specialist provision in a child or young person's EHC plan.
39. Mrs D has been put to significant time and trouble chasing matters up. The Council often failed to respond to her emails or provide updates. She also been caused distress and frustration that F has not received the education and specialist provision she is entitled to.
40. Mrs D has funded home economics, horse riding and design and technology lessons for F. She says she did this to ensure F received some educational support. If the Council had acted without fault, Mrs D would not have had to fund these lessons. I therefore recommend the Council reimburses these costs when Mrs D provides it with the appropriate invoices.
41. The Council and Mrs D agree that F will start a slow transition to her new school from September 2022 onwards. It has agreed to provide a teaching assistant and tutors for F. I recommend the Council sources these to avoid any further disruption for F.
42. The Council has also agreed to fund horse riding lessons for F. This is line with her access to a broad and balanced curriculum.
43. It is not for the Ombudsman to say the amount of education that would have been suitable for F. Our recommendations for financial remedy are usually a payment between £200 and £600 per month (£600 to £1800 per term) based on the child’s needs, whether any provision was in place and whether the period affected was a significant time in a child’s schooling.
44. I recommend a payment of £500 per month from 28 September 2021 until 6 January 2022 as the Council did not provide any education. I recommend a payment of £400 per month from 6 January 2022 to the end of the summer term. This takes into consideration that F received some limited provision. The Council should therefore pay a total of £3,650. The Council should also apologise to Mrs D and F and make a separate payment to Mrs D to reflect her injustice.

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Agreed action

45. To address the injustice caused by fault, by 23 September 2022 the Council has agreed to:

• Apologise to Mrs D and F.
• Pay Mrs D a lump sum for the horse riding lessons. It should do this as soon as Mrs D provides it with her bank details.
• Pay Mrs D £400 for her time and trouble, frustration and distress.
• Pay Mrs D £3,650 to reflect the missed education and provision. We suggest Mrs D uses this for F’s educational benefit.
• Reimburse Mrs D the expenses she has incurred in educating F from 28 September 2021 onwards. It should do this when Mrs D provides it with the appropriate invoices detailing these costs.

46. By 21 October 2022:

• Source the remaining tutors to ensure F receives up to 25 hours of education as set out in her EHC plan. It should communicate with Mrs D when finding the tutors.
• In collaboration with Mrs D, source a teaching assistant/second adult to provide support for F when she transitions to her new school.

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Final decision

47. There was fault by the Council, which caused Mrs D and F an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman