Summary: Miss X complained about the Council’s failure to provide suitable support for her child as specified in her Education, Health and Care Plan and related matters. We have found the Council to be at fault because it took too long to arrange teaching assistant support when the existing provider left. It also failed to ensure this support was available from the start of the autumn term of 2021. There was also fault with communication and case handling. The Council has agreed to apologise and make a payment to Miss X to acknowledge her frustration and loss of educational support. It will also confirm action it has taken to improve its service.

The complaint

1. Miss X complains the Council has failed to provide teaching assistant support to her daughter, Child Y, to facilitate home education, as specified in her Education, Health and Care Plan. She also complains about poor communication and a failure to provide consistent caseworker support.
2. Miss X says this has had a significant impact on Child Y’s social development, because Miss X has had to focus on supporting her home learning. Miss X has also experienced distress and frustration, as well as time and trouble spent trying to engage with the Council about the lack of support.

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What I have and have not investigated

3. I have not investigated Miss X’s complaint about the time taken by the Council to arrange a review of Child Y’s EHCP. This is because Miss X complained to the Ombudsman before the review process was started and so this issue has not yet been considered by the Council under its internal complaints procedure.

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The Ombudsman’s role and powers

4. 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)
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 have considered all the information provided by Miss X, made enquiries of the Council and considered its comments and the documents it provided.
7. Miss 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 policy

Education, Health and Care Plans

8. The Children and Families Act 2014 sets out support for children with special educational needs and disabilities. The ‘Special educational needs and disability code of practice’ gives more details about how councils, schools and others should carry out their duties.
9. A child with special educational needs may have an EHCP. This sets out the child’s needs and how they should be met. The EHCP is set out in sections. We cannot direct changes to the sections about education or the setting named. Only the SEND tribunal can do this.
10. Councils must ensure EHCP provision is met. We can look at complaints about this. We can investigate where a council has not ensured provision, or where there have been delays in the process.
11. The annual review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards identified targets.

Personal budgets and direct payments

12. A personal budget is an amount of money identified by a council to deliver provision set out in an EHCP where the parent is involved in securing that provision.

Education other than at school (EOTAS)

13. Education other than at school (EOTAS) is provision that may be suitable for a child for who education in a school setting is not appropriate. It means the child has education provision delivered somewhere other than a school. If this is named provision in an EHCP the Council remains responsible for arranging and paying for the provision and for ensuring the special needs provision is made.

What happened

14. Child Y has special educational needs (SEN) and an EHCP. She struggled to attend school and so the Council agreed to support her to be educated other than at school. ETOAS was named at Section I of her EHCP from December 2021.
15. As part of her package of support, Child Y received online tuition. This was funded by a direct payment. To assist her engagement with this, she was provided with a teaching assistant (TA). This was commissioned by the Council through an external teaching provider (Provider A). In April 2022, Provider A said it was no longer able to support Child Y. Miss X asked the Council to find a replacement. She says she had difficulty contacting the Council about this and did not receive a response to her emails. She was also concerned her allocated SEN caseworker was no longer employed by the Council and had not been replaced.
16. In early June 2022, the Council attempted to source a replacement TA from other providers, including Provider B. A TA (TA2), was due to start work on 13 June 2022, but was unable to start due to illness. Miss X told the Council she did not want TA2 to start working with Child Y so close to the end of the summer term. She felt this would be too disruptive to Child Y.
17. Around this time, Miss X complained to the Council about the delay and poor communication. She had to devote a significant amount to time supporting Child Y’s online learning. This meant Child Y missed out on social activities because Miss X had to focus on her work outside of Child Y’s tuition.
18. On 22 June 2022, she asked the Council to contact her to discuss the arrangements for September 2022. The Council dealt with this by way of a review of Child Y’s EHCP. The review process was started in August 2022 with a review meeting scheduled for October 2022. Miss X was invited to submit her views in writing. The Council says this was received on 2 October 2022.
19. In response to Miss X’s complaint, the Council made the following points.

• The Council accepted there had been some problems with communication and the customer service provided to Miss X. It explained this was due to resource issues. The Council took action to address this, including recruiting more staff.
• TA2 was unable to start in June 2022 due to illness. This was beyond the Council’s control.
• TA 2 was able to start soon after, but this was refused by Miss X.
• TA support was available to Child Y at all times since June 2022, including from the start of the autumn term.

20. Dissatisfied with this response, Miss X brought her complaint to the Ombudsman.

Analysis

21. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. In cases where a council has been unable to find a source appropriate support, we can consider whether the council has failed to make purposeful efforts to do so.
22. I will consider Miss X’s specific areas of complaint below.

Failure to provide teaching support

23. From the records I have seen, the Council was first made aware that Provider A was unable to provide a service on 26 April 2022. However, the records show Provider A first tried to contact the Council on 30 March 2022, with no response.
24. This was followed up by chaser emails from Miss X on 4 and 11 May 2022.
25. The case records show the Council contacted three TA providers in June 2022. This was approximately two months after Provider A withdrew its service.
26. This timeline confirms there was delay in contacting alternative providers. The records show there were several attempts made by both Provider A and Miss X to speed up this process. It is reasonable for me to assume this was because a caseworker was no longer assigned to Child Y’s case.
27. This was fault and led to Child Y missing out on support with her learning. There was additional injustice to Miss X, who had to provide that support herself, to the detriment of her work and her ability to support Child Y’s social activities. This injustice requires a remedy set out below.
28. It was unfortunate TA2 was unable to start in June 2022. But I accept this was not due to fault by the Council. Also, it was only a short, temporary delay and TA2 was available to start the following week. It was Miss X’s decision to refuse this provision. While I acknowledge Miss X reasons for doing so, the Council had ensured support was available for the last month of the summer term and beyond. For this reason, I do not find the Council to be at fault during the latter period of the summer term.
29. Miss X also complains about the Council’s failure to ensure appropriate support was in place for the start of the new term, and its lack of engagement on this issue.
30. The Council has said teaching assistant support was available from September onwards. However, Miss X is clear that neither the Council, nor Provider B, contacted her about arrangements for September 2022. The case records I have seen support what Miss X has said. In June 2022, the Council asked Provider B to liaise with Miss X about the September arrangements. There are no further records (either from either Provider B or the Council) about this.
31. In response to my enquiries about this specific issue, the Council has referred to notes from a meeting with Miss X in November 2022. The Council says they provide evidence Miss X refused TA support from September. I disagree. The note refers to Miss X refusing the TA for the last three weeks of the summer term because Provider B was unable to guarantee the same tutor would be helping Child Y in September. It does not say that Miss X did not want a TA to start in September.
32. This evidence demonstrates the Council was aware that it was expected to provide TA support from September onwards. It had sought to delegate responsibility for making the necessary arrangements to Provider B and so took no further action. However, the law is clear that the Council is responsible for making sure that arrangements specified in the EHCP are put in place.
33. I have reviewed the relevant EHCP. This stated Child Y required, “consistent support which is used to mediate learning and communications experiences for her”. She also required, “supporting adults to engage Child Y in activities at regular points throughout the day, to facilitate concentration”.
34. This does not specify how this support will be provided and so allows for some discretion and flexibility as to how this will be done in practice. The Council has accepted this would be achieved by way of a teaching assistant.
35. I am satisfied there is no evidence to support the Council’s position that a tutor was available from September 2022. This was provision specified in the EHCP that was not provided. This was fault. It is disappointing that despite Miss X raising the lack of support at the November 2022 meeting, no further action to remedy this has been taken.
36. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council.
37. Where fault by a council has caused a child to miss education, or not receive suitable education, we may recommend a symbolic payment of between £200 and £600 per month. We take account of any education the child received, without some or all of the support needed by their EHCP, the severity of the child’s SEN, whether any provision can remedy any of the lost education, and whether the period affected was a significant one.
38. Miss X has explained how this lack of TA support affected both herself and Child Y. Miss X has had to provide the support a teaching assistant would have done. This has negatively impacted on her ability to support Child Y with social interaction and her mother/daughter relationship. It has also affected Child Y’s ability to engage with other aspects of her education.
39. Considering Child Y’s needs, the stage of her education, the support she missed, and the package of educational support provided by the Council by way of a personal budget, I consider that £600 per term is an appropriate amount. This will be calculated from September 2022 to April 2022, when the Council made attempts to arrange the outstanding annual review.

Poor communication and lack of case management

40. In its response to the Ombudsman, the Council has acknowledged the need to improve communication with parents. It says it is actively recruiting additional staff to address this issue and making changes to its working practices.
41. Provision of an inadequate service is reflected in Child Y’s case records. Miss X emailed Child Y’s case officer on 5 May 2022. This explained she had not received a response to several previous emails. She then received an automatic reply stating the caseworker was no longer working in that roll. Miss X was contacted by her new case worker on 16 August 2022. This is the first record of Miss X receiving contact directly from the Council.
42. From this, I am satisfied the Council failed to properly communicate with Miss X, caused primarily by having no caseworker assigned to the case. This was fault. I am satisfied this caused Miss X significant distress and frustration that requires a remedy set out below.

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Agreed action

43. The Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise to Miss X.
2. Pay Miss X £1200 (£600 per term) to acknowledge the lost educational support for two academic terms between September 2022 and April 2023.
3. Pay Miss X £500 to acknowledge the distress, frustration and inconvenience caused by the delay in sourcing alternative TA support in the spring/summer terms of 2022, as well as poor communication and case handing.
4. Arrange the overdue annual review to ensure support specified in Child Y’s EHCP is provided without further delay.
5. Provide the Ombudsman with a summary of the action it has taken to improve its service provision and case handling.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have found the Council to be at fault and made recommendations that the Council has agreed. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman