Summary: Miss D complains the Council failed to provide her daughter with suitable education while it found a new placement and failed to secure the provision in her Education, Health and Care Plan. Miss D says her daughter missed a term of education which affected her confidence and ability to achieve targets which will impact her choices for post-16 education. We found fault but consider the agreed action of a payment of £250 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 daughter (E) with suitable education while it found a new placement and failed to secure the provision in her daughter’s Education, Health and Care Plan (EHCP) for the period 1 September and 11 October 2021. Miss D also complains some of the provision remained outstanding at her daughter’s new placement.
2. Miss D says because of the Council’s fault, her daughter missed a term of education and suffered upset and a loss of confidence. In addition, targets set for her daughter to achieve since a bespoke package was put in place are not being achieved due to ongoing missing support from a teacher which will impact her choices for post-16 education.

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What I have and have not investigated

3. I am not investigating any ongoing delay in agreeing and arranging E’s college placement 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 daughter’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 E’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 E from September 2021.
18. The Council was advised that Miss D had withdrawn E from the school on 28 June. The Council considered the school placement was the most appropriate to provide suitable education for E 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 E remained on roll until the end of the academic year with the interim support starting on 29 June.
19. The Council arranged a meeting with Miss D on 1 July to explore parental preferences and discuss placement options for E. Miss D subsequently sent the Council several bespoke packages she wished them to explore for E. The Council has provided details of its consultation with Miss D’s preferred option in July which did not result in a positive response. The Council proposed a different placement which Miss D rejected as E did not wish to attend.
20. The Council consulted with a local maintained special school. It was considered that the complexity of provision in Section F of E’s EHC Plan and the number of professionals and services required to deliver it meant this school was likely to be the only viable option. This included provision delivered off-site at a local charity for deaf children and young people.
21. The Council says it was not possible to secure all of the provision in time for the new academic year starting in September 2021. The Council has provided details of its efforts to do so. The full package of provision was agreed with providers on 17 September.
22. Miss D complained to the Council at the end of September about the immediate and long-term education provision for E.
23. There was a series of meetings to coordinate the implementation of the provision from various professionals and providers and the school. A placement start date of 11 October was agreed for E in liaison with Miss D.
24. From the beginning of the academic year to 11 October, Miss D requested for provision to be delivered at a local charity setting or an alternative setting. The Council considered this would likely constitute the creation of an unregistered independent school. The Council has provided its reasons for this view with reference to relevant Government guidance.
25. The Council provided a response to Miss D’s complaint on 10 December and apologised for the delay. The Council noted E’s place at her school had ended on 23 June 2021 and that interim arrangements were made as E remained on the school role. It was explained that the providers offering the provision specified in E’s EHC Plan during the interim period were unregistered and needed to be commissioned in addition to a school placement. This meant the arrangements for interim provision could not continue once E was not on the school role. The Council explained its actions in finding a permanent education placement for E including the new school having oversight of offsite provision as part of a post 16 programme which took several weeks to arrange with E starting her placement on 11 October. 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 E had not received suitable education during the period September to 11 October 2021 and acknowledged why Miss D was unhappy the interim provision did not continue during September. However, the Council considered it was not at fault in securing the provision in E’s EHC Plan as there had not been any school that could provide the educational provision in E’s EHC Plan and had subsequently proceeded to make a place available at Miss D’s preferred school. However, the Council accepted it was at fault in not arranging suitable alternative provision for the period September to 11 October 2021. The Council explained it would not make a payment to remedy this missed provision because it had previously paid £4,660 for missed provision for E during the academic year 2020/21. The Council noted this equated to £466 per month 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.
26. 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 E’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 E’s current provision and to consider the benefit of providing additional interventions to what E was already receiving. The Council stated it would confirm the date of such a meeting in due course after allowing E to settle in her new placement and this could form part of the annual review process. The multi-agency review took place on 8 April which E attended during which she expressed her wish to attend a particular sixth form. It was agreed to arrange taster sessions. The meeting concluded that objectives at that point were largely partly met and continued to be worked towards.
27. The Council accepts the missing provision will have impacted E and her 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 E would not be returning to the school. The Council then provided alternative provision off-site whilst a long-term placement was sourced. A bespoke package was subsequently arranged which required the commissioning of several services. The Council says it completed this as quickly as possible with the placement starting on 11 October.
28. 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 on 11 April 2022.
29. [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 does note there were no disagreements recorded between the recommendations of the school and any other party at the meeting including Miss D and other professionals. The Council further notes the SEND Casework Officer who attended the review was briefed on the Stage 2 complaint outcome.
30. The Council has provided details of the previous financial remedy above. The Council offered on 19 May 2021 to pay £2,860 for missed provision from September 2020 to May 2021. This was for any outstanding provision that E had missed, including sessions with the Teacher of the Deaf, Speech and Language Therapy and Occupational Therapy. Miss D accepted the offer of £2,860 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 E over the coming academic year or a further financial payment of £4,500 in addition to the payment of £2,860. The Council responded to Miss D’s Stage 2 complaint on 28 October 2021 and offered an additional payment of £1,800 for E’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 £4,660 for missed provision for the period September 2020 to June 2021, plus a further £200 for time and trouble.
31. The Council has confirmed it has not received any reports from Miss D about E not receiving the provision set out in her EHCP between starting at the new school and the April Review above. The Council also confirmed it has not received a complaint from Miss D about provision not being in place whilst E attended the new school. Therefore, I have not investigated this issue which would need to complete the Council’s complaint procedure in the first instance.

My consideration

32. 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.
33. However, there is not an adequate record of how the Council used the review meeting in April 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 11 October 2021. In these circumstances, I consider a further remedy is required.

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Agreed action

34. The Council will take the following action to provide a suitable remedy:
1. pay Miss D £250 for E’s education benefit for the period 1 September to 11 October 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.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. 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