Summary: We have partly upheld Ms X’s complaint about a failure to secure educational provision for her son Y and about infrequent consultations with potential schools in 2022. The Council will apologise and make a payment to reflect lost provision.

The complaint

1. Mrs X complained Essex County Council (the Council) failed to secure a school place for her son Y or ensure he had education provision in line with his Education, Health and Care plan (EHC plan). She said this caused a loss of education and avoidable distress.
2. Mrs X also complained about an officer from the SEN team not attending a child in need meeting.

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What I have and have not investigated

3. I investigated the complaints in paragraph one from September 2020 to July 2022. I did not investigate any matters before this because they are either covered by our previous investigation in 2019 or are late complaints (see paragraph five.)
4. I did not investigate the complaint in paragraph two because the Council upheld this complaint and in its response, it said it would send an officer to the next meeting. This is the recommendation I would have made and so I do not consider investigation of this complaint could achieve anything further (see paragraph nine).

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. Mrs X could have appealed to the SEND Tribunal about the content of Y’s EHC plan, including the lack of placement named in Section I of the plan. I investigated her complaint anyway because she told me she was advised by the local SEND advice service not to appeal. I do not consider it reasonable for her to have appealed when advised against this.
8. 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)
9. We provide a free service, but we must use public money carefully. We do not start or may decide not to continue with an investigation if we decide we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6))
10. 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)
11. 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

12. I considered Mrs X’s complaint to us, the Council’s responses and documents described in this statement. I discussed the complaint with Mrs X.
13. 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

Relevant law and guidance

14. 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.
15. 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 2014).
16. 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)
17. We recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. We consider councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

What happened

Background

18. Y has special educational needs and an EHC plan. Mrs X previously complained to us in 2019. We upheld her complaint finding the Council:
• Delayed in identifying suitable provision and issuing Y’s EHC plan
• Failed to secure provision since 2018.
19. The Council agreed to make payments for missed education and avoidable distress. The Council also agreed to issue Y’s final EHC plan. In line with our decision, the Council issued Y’s final amended EHC plan at the start of 2020 which:
• Summarised his parents’ view that Y needed a placement in a local special school
• Set out SEN provision for Y which included specialist behavioural management support, frequent daily opportunities to engage in interactions with adults and other children
• Described the temporary education provision at home by tutors (five 45-minute sessions a week with two tutors) while the Council consulted with independent out of county schools for children with social, emotional and mental health difficulties (SEMH)
• Did not name a specific school but said Y needed a maintained or independent special school.

September to December 2020

20. In September 2020, the Council consulted with one school. It offered a visit to meet Y and his parents. After a visit, the school did not offer a place.
21. The annual review meeting in October 2020 minutes said Y wanted to stay in family home and attend a local school. Home tuition was said to be working well.

2021

22. Between January and May 2021, the Council consulted with eight independent special schools which all declined to offer Y a place.
23. The tuition company provided the Council with regular progress reports including summaries of the tutors’ sessions with Y, subjects taught, activities and work completed and progress and behaviour. In February 2021, the reports show Mrs X stopped in-person tuition because of concerns about COVID-19 and because of family circumstances. In response, the tutors arranged daily phone/video contact and provided work for Y which they tried to check. Provision ceased at Mrs X’s request in February. In-person tuition restarted in March.
24. In May, Mrs X emailed the Council to report a potential safeguarding incident with one of the tutors. Mrs X said she had stopped tuition until the incident could be reviewed. A member of the staff from the tuition company emailed the Council after the incident to say they would deliver work packs in the meantime and would conduct an internal investigation.
25. At the start June 2021 there was a virtual meeting with professionals and family and the tuition company. Mrs Y’s concern was for the Council to identify a school for Y to start at in September.
26. The Council stopped the tuition in June. At the end of June, an SEN case worker and Mrs Y met. The case worker noted she was going to look into a bespoke education package until the end of term, starting at home and then using community resources.
27. The Council approached another tuition company, but it did not contact Mrs Y to arrange a start date. So, the Council arranged for a third company to provide an activity-based education package for Y.
28. The Council consulted with three maintained schools in August. They all declined places for Y.
29. The second draft amended EHC plan of August 2021 said Y had made some progress with tutors. There were no proposed amendments to the SEN provision.
30. The new tuition provider’s first session with Y was at the end of September. The tutors provided the Council with regular updates of their sessions. The tutors provide two to one support in the community to engage him in non-traditional learning through experiences and activities in his local community at various venues.

2022

31. In February, the Council consulted with an independent special school. It declined to offer Y a place.
32. The final second amended EHC plan of 15 February 2022 also had no school named. It said Y’s placement would be a special school for young people with SEMH in section I. The plan said:
• Y received home tuition until June 2021 while the Council consulted with independent out of area schools for young people with SEMH. The sessions were the same as in the previous plan.
• Provision in section F was the same as the previous EHC plan, naming the type of school only (SEMH).
33. In July 2022 the Council consulted with a national group of independent schools. They do not appear to have responded.
34. Mrs X complained to the Council in July 2022. The response in August said:
• The SEN service continued to explore placements including contacting schools which had previously declined to offer places.
• The current education package was suitable.
35. Mrs X told me there had been an annual review meeting since she contacted us and the Council was intending to amend the EHC plan because officers accepted it was vague and ambiguous as to how many sessions Y would receive. She said Y was currently receiving 12 hours a week of provision through the same tuition provider and he was getting out and about. She said she and the Council agreed Y needed a residential placement.
36. Mrs Y told me that recently Y’s tuition had moved to on-line because of an incident.
37. The Council told me Y was without education from 10 June to 23 September 2021. It also said it was actively seeking a special school for Y.
38. At the time of writing this statement, Y is not living with his mother in Essex. The Council is transferring his EHC plan to a different area which will become responsible for the plan.

Was there fault and if so did it cause injustice?

39. Mrs X has not expressed a preference for a particular school for Y during the period I have investigated. She and the Council agree Y requires a placement at a special school. The evidence indicates the Council consulted with many special schools including one towards the end of 2020, eight between January and May 2021 and three maintained schools in August 2021. Due to the exceptional nature of Y’s needs, placements were not offered. My view is there is no fault in 2021 as the Council did everything it could to secure a placement for Y.
40. Turning to 2022, the records indicate the Council consulted with two schools: February and July 2022. This is inadequate and infrequent consultation given Y has been without a placement for longer than two years. I do not consider the Council took enough action to identify potential suitable schools and this was fault. It could have re-consulted with those schools it previously asked in 2020 and 2021. I cannot conclude on a balance of probability that the outcome would have been successful had the Council consulted with more schools than it did. In theory, the Council could have named one of the schools it consulted with, there are no grounds for me to criticise it for not doing so because all the consultation responses said the schools could not meet Y’s needs.
41. While the Council has a duty to secure provision on an EHC plan, we recognise it is not practical for them to keep a watching brief on education providers. The Council’s arrangement with both tuition providers between September 2020 to 10 June 2021 and 23 September 2021 to July 2022 secured the provision in Section F of Y’s EHC plan given the Council could not secure Y’s placement in a special school and there is no injustice to Y. I am satisfied the Council checked Y’s progress regularly by getting updates from the tuition companies. And it investigated and responded to Ms X’s complaint about the matter. This is what we expect councils to do as I have set out in paragraph 17.
42. However, when the first tuition company’s service ended in June 2021, Y was without provision for just under two months between (10 June and 23 September 2021 until the new company started). This is fault because Y was without provision the Council had a duty to secure under section 42 of the Children and Families Act 2014. It caused a loss of education provision of just under two months, excluding school holidays.

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Agreed action

43. The Council will apologise to Ms X and Y and make Y a payment of £1200 to reflect the loss of educational provision between June and September 2021.
44. Since my investigation started, Y has been living in a different area with a relative. The Council has stopped securing his education provision and his EHC plan is transferring to the new area. So it is not appropriate for me to recommend Essex takes any further action to secure a placement in a special school.
45. The Council should provide us with evidence it has complied with the above actions within one month of this statement.

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Final decision

46. I have upheld some of Ms X’s complaint about a failure to secure education provision for her son Y and about infrequent consultations with potential schools in 2022. The Council will apologise and make a payment to reflect a loss of education provision.
47. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman