Summary: Miss D complains the Council failed to provide her son with suitable education while it found a new placement and failed to secure the provision in his Education, Health and Care Plan. Miss D says her son missed a term of education and suffered distress about his future education and the continuing absence of some specialist provision had a negative impact on the new placement which added to its breakdown. We found fault by the Council but consider the agreed action of an additional payment of £650 and a lessons learned review is enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Miss D, complains the Council failed to provide her son (B) with suitable education while it found a new placement and failed to secure the provision in her son’s Education, Health and Care Plan (EHCP) for the period 1 September and 18 December 2021. Miss D also complains some of the provision remained outstanding at her son’s new placement.
2. Miss D says because of the Council’s fault, her son missed a term of education and suffered distress due to not knowing what would be happening in his future education and the continuing absence of some specialist provision had a negative impact on the new placement which added to its breakdown.

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What I have and have not investigated

3. I have not investigated events following the ending of B’s last placement in May 2022 or any issues relating to the proposed new placement starting in September as this would be considered a premature complaint.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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)

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How I considered this complaint

6. I read the papers provided by Miss D and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Miss D. I have explained my draft decision to Miss D and the Council and provided an opportunity for comment.
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

Background and legislation

Special educational needs

8. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
9. The EHC plan is set out in sections which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

10. The council has a duty to secure the specified special educational provision in an EHC plan 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 provision

11. 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. 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)
12. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
13. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Key events

17. Miss D contacted the Council on 19 May 2021 about missed provision at her son’s school. The Council met with Miss D and the school in June. The conclusion was reached that it was not possible to deliver the provision in Section F of B’s EHC plan as not all the professionals were available to deliver it in the way prescribed in the plan. The school suggested a named member of school staff could take responsibility for delivery of the provision in the EHC plan to make the package deliverable. Miss D did not agree to the proposed changes. The school notified the Council and Miss D on 23 June that they were unable to continue to offer a placement for B from September 2021.
18. The Council was advised that Miss D had withdrawn B from the school on 28 June. The Council considered the school placement was the most appropriate to provide suitable education for B while it sought to identify an alternative placement. An off-site package of provision was arranged and put in place until the end of the end of the academic year. Miss D sought an education offer to be delivered by a Deaf Education Instructor and Intervenors in Deaf Active, with Multi sensory impairment (MSI) oversight. The Council agreed this plan with the Head Teacher at the existing school and B remained on roll until the end of the academic year with the interim support starting on 29 June.
19. There was a meeting of the professionals involved on 6 July to discuss the interim provision and future placement provision.
20. The Council has provided details of its consultation with several other schools during July which did not result in any positive responses.
21. Miss D complained to the Council at the end of September.
22. Miss D sent a judicial review pre-action protocol letter to the Council on 10 November about B being out of school without any form of education from 1 September and the education provision in his EHC Plan not being delivered. Miss D noted she had not received a response to repeated emails sent during August and September about this and had only received a holding reply to her formal complaint made towards the end of September.
23. The Council responded to Miss D’s pre-action protocol letter on 24 November and explained what action it was taking to resolve the issue. The Council explained that following an informal review of the provision specified in section F of B’s EHC Plan it was considered any school would struggle to deliver all the provision largely due to issues around the availability of some of the professionals. The Council was in further discussion with school (X) a Council maintained special school for pupils with complex learning difficulties regarding B’s possible admission. There was to be a meeting the following day with the school to discuss its concerns about delivering all the specified special educational provision for B. It was possible the Council would take the formal step of amending section F of B’s EHC Plan. The Council was hopeful it would be able to formally propose school X to be named in section I of B’s EHC Plan. This would result in a Notice of Amendment which would provide an opportunity for Miss D to make representations and once a final amended EHCP was issued this would provide a right of appeal to the SEND Tribunal. The Council intended to hold a formal statutory review of Bs EHC Plan once B was admitted to a suitable school to consider how B’s needs could be met otherwise than by the delivery of the provision currently specified in section F. Any such changes would also result in a formal Notice of Amendment. The Council also confirmed arrangements were being made for B to receive some interim educational provision and it would be in touch about the details of this shortly. Miss D did not proceed with a judicial review.
24. The professionals planning meeting for provision to be put in place ahead of transition into placement took place on 25 November.
25. Miss D met the Council and professionals at her preferred school (X) on 1 December. It was agreed to name this school in B’s EHC Plan with a period of transition planning and visits up to the end of the Autumn term with a full time placement being available from January 2022. It was confirmed that a statutory review meeting of B’s EHC Plan would be completed after about four weeks of B’s full time placement starting.
26. The Council provided a response to Miss D’s complaint on 10 December and apologised for the delay. This set out that Miss D had expressed a preference for provision to continue at a particular provider which was not a registered school. This meant the Council could not name this provider in section I of B’s EHC Plan and it could not provide full time suitable education at its location. It was proposed to deliver some provision at B’s home but Miss D explained she was regularly not available during school hours. The Council provided details of the schools it had consulted without a successful outcome. The Council had also consulted Miss D’s preferred school (X) but it had responded in October to say it was not able to deliver all the provision in B’s EHC Plan. This meant the Council concluded it was not a suitable placement at that time. However, following the meeting on 1 December this placement was agreed and the school named on B’s EHC Plan. The Council accepted some of its communication had not met its expected standards during the period it was trying to find a suitable placement due to officer absence and apologised. The Council also accepted that B had not received suitable education during the period 1 September to 10 December 2021. However, the Council considered it was not at fault in securing the provision in B’s EHC Plan as there had not been any school that could provide the educational provision in B’s EHC Plan and had subsequently proceeded to make a place available at Miss D’s preferred school (X). However, the Council accepted it was at fault in not arranging suitable alternative for the period September to December 2021. The Council explained it would not make a payment to remedy this missed provision because it had previously paid £3,230 for missed provision for B during the academic year 2020/21. The Council noted this equated to £323 per month based on 10 months of education during the year which it considered was a fair and reasonable amount taking into account the Ombudsman’s Guidance on Remedies. This says where fault has resulted in a loss of educational provision, the Ombudsman will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss.
27. Miss D remained unhappy with the Council’s response to her complaint and escalated the matter to Stage 2 of its complaint procedure. The Council responded to Miss D on 11 February 2022. The Council accepted it was responsible for securing the provision specified in B’s EHC Plan and failed to do so for part of the academic year 2021-22. The Council further accepted that even if the school could not deliver the provision the Council had a legal duty to secure provision. The Council suggested the best way to provide a remedy was for a multi-agency professional meeting to review B’s current provision and to consider the benefit of providing additional interventions to what B was already receiving. The Council stated it would confirm the date of such a meeting in due course after allowing B to settle in his new placement and this could form part of the annual review process. The multi-agency review took place in early March 2022.
28. The Council accepts the missing provision will have impacted B and his family but suggests any failure to deliver the provision should be viewed in the context of the extensive efforts made by it to commission and arrange a complex package in an expedient manner. Initially, this included a proposed amendment to the provision which was refused by Miss D. Miss D then notified the school and Council that B would not be returning to the school. The Council then provided alternative provision off-site whilst a long-term placement was sourced. An extensive school placement consultation then took place, with no offers of a placement. This resulted in a bespoke package being needed at a school which was neither the parent’s preferred school, and was against the initial concerns of the school.
29. The Council accepts it failed to provide provision for part of the 2021/2022 academic year despite a duty to do so in its complaint correspondence with Miss D. The Council suggested a multi-agency professional meeting to consider making recommendations about any additional interventions for the lost provision. The Council noted this could take place during the EHCP review process. This took place in early March 2022.
30. The Council has acknowledged it is difficult to be clear about what additional provision was discussed and/or agreed with specific reference to the Stage 2 investigation outcome. This is because it is not possible to separate out which proposed amendments to provision were in relation to the complaint and which would have been recommended irrespective of the complaint and the review report is not a comprehensive record of the full discission and so there is no specific reference to discussion about the additional provision. The Council notes that B contributed his written views ahead of the review meeting and also attended part of the meeting. As an outcome to the review the Council consulted with another school for a placement on 22 April. B was withdrawn from school X on 27 May which is where my investigation ends.
31. The Council has provided details of the previous financial remedy above. The Council offered on 19 May 2021 to pay £1,430 for missed provision between September 2020 to May 2021. This was for any outstanding provision that B had missed, including sessions with the Teacher of the Deaf, Speech and Language Therapy and Occupational Therapy. Miss D accepted the Council’s offer of £1,430 on 4 July 2021 but requested her complaint be progressed to Stage 2 due to additional missed provision the offer did not address. Miss D requested a further financial remedy in the form of a catch-up plan for B over the coming academic year or a further payment of £4,500 in addition to the payment of £1,430. The Council responded to Miss D’s Stage 2 complaint on 28 October 2021 and offered an additional payment of £1,800 for X’s educational benefit covering the period September 2020 to the end of June 2021 when the placement ended and a further payment of £200 for time and trouble. Miss D accepted this offer. Therefore, Miss D was paid a financial remedy of £3,230 for missed provision for the period September 2020 to June 2021, plus a further £200 for time and trouble.
32. The Council has confirmed it has not received any reports from Miss D about B not receiving the provision set out in his EHCP between starting at school X and the March Review above. The Council also confirmed it has not received a complaint from Miss D about provision not being in place whilst B attended School X. Therefore, I have not investigated this issue including whether the placement broke down as a result of any fault here which would need to complete the Council’s complaint procedure in the first instance.

My consideration

33. The Council has acknowledged some poor communication and delay during the complaint process. I consider the apology already provided is a sufficient remedy for any injustice here.
34. However, there is not an adequate record of how the Council used the review meeting in March 2022 to consider whether any additional intervention for the lost provision was required. I also note the previous financial remedy provided by the Council related to an earlier period and does not address the missed provision between 1 September and 18 December 2021. In these circumstances, I consider a further remedy is required.

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Agreed action

35. The Council will take the following action to provide a suitable remedy:
1. pay Miss D of £650 for B’s education benefit for the period 1 September to 18 December 2021 within one month of my final decision; and
2. complete a lessons learned review within three months of my final decision to ensure that where a complaint outcome includes actions at a subsequent review meeting these are properly recorded and fed back to the complainant.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation as I have found fault but consider the agreed actions above with the actions already taken by the Council provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman