Summary: Miss X complained that the Council failed to provide her son, Mr Z, with an education for almost a year, failed to provide the provisions in his education, health and care plan and delayed providing a suitable home tutor. We find the Council was at fault. To remedy the injustice caused by fault, we make several recommendations.

The complaint

1. The complainant, Miss X, complains that the Council failed to provide her son with an education for almost a year and failed to provide the provisions stated in his education, health and care (EHC) plan. She also said the Council delayed providing a suitable home tutor.
2. Miss X said this has had a significant impact on her son who she said had been left without any tuition.

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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. 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.
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 spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
7. Miss X and the Council now have an opportunity to comment on my revised draft decision. I will consider their comments before making my final decision.

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What I found

Education, Health and Care plans

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child or young person’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 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)
10. The Ombudsman does 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. The Ombudsman does consider that 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.

Participation of Young People in Education, Employment or Training statutory guidance for council’s

11. Councils have broad duties to encourage, enable and assist young people to participate in education or training, specifically these are:
• To secure sufficient suitable education and training provision for all young people in their area who are over compulsory school age but under 19 or aged 19 to 25 and for whom an Education, Health and Care plan is maintained. This is a duty under the Education Act 1996. To fulfil this, councils need to have a strategic overview of the provision available in their area and to identify and resolve gaps in provision.
• To make available to all young people aged 13-19 and to those between 20 and 25 with special educational needs and disabilities, support that will encourage, enable or assist them to participate in education or training under section 68 of the Education and Skills Act 2008.
• Tracking young people’s participation is a key element of these duties. Councils are required to collect information about young people so that those who are not participating or are not in education or training (NEET), can be identified and given support to re-engage. Robust tracking also provides the Council with information that will help to ensure that suitable education and training provision is available and that resources can be targeted effectively.

What did happen?

12. This section sets out the key events in this case and is not intended to be a details chronology.
13. Miss X’s son, Mr Z who is 23 has an EHC plan. In June 2021 the Council contacted the college twice and gave them details for a placement, placement D. The notes stated there was the option for Mr Z to continue his traineeship programme and complete work experience at D whilst continuing with maths. But it was noted that Mr Z would need support from the college to access this.
14. In September 2021 Miss X contacted the Council and the college. She said she had chased the college about the course but said she had no response. She said it was agreed at a meeting that Mr Z would continue his studies at the college until January 2022. She also said there had been an agreement to put in place work experience and online maths tuition.
15. The college said it was establishing what campus the course had moved to. But it said as Mr Z has an EHC plan, it could re-enrol him onto a course. The Council asked the college if it had contacted D as it had agreed to in June 2021.
16. In September 2021 Miss X asked the Council and college for an update. She asked if online or alternative support could be provided for Mr Z to support him with maths and speech and language therapy (SALT). The college said it was awaiting an update.
17. The Council asked the college the following month to arrange a meeting. It said this was to clarify what support was in place for Mr Z. It said the original plan was for Mr Z to attend work experience and take on maths alongside, potentially finishing in January. But it said this timescale would need to be amended as Mr Z had not started either. The college said it was trying to work out session dates.
18. Miss X said she received contact regarding maths support to take place at the college despite it being agreed at a meeting the maths would be online, as she said Mr Z could not attend college. She requested the Council arrange home tuition. She also asked for an update regarding the placement.
19. The Council asked the college to clarify the arrangements for the maths tuition as it said it understood it was looking into ways it could be done remotely. It also asked whether there was any difficulty in arranging the placement.
20. The college said as Mr Z would have to come in to sit his exams at some point it would benefit him to be exposed to a face to face environment in a carefully controlled way. But it said it could deliver initial maths sessions remotely to establish a relationship with Mr Z before he attended.
21. In December 2021, the Council contacted placement D who responded the following month and asked to arrange a call.
22. The Council told Miss X it would not provide a home tutor at this stage as it said the college had offered maths tuition which would build up to Mr Z attending the college. It said this had been previously discussed. The Council also said it would ask the college to provide Miss X with an update. Miss X stated Mr Z was no longer enrolled at the college at that time.
23. On 22 December 2021 Miss X provided the Council with a letter from Mr Z’s psychiatrist which said they were in support of Mr Z receiving home tuition in maths due to his high anxiety levels.
24. The Council provided the college with further details for D and asked the college to contact them.
25. In February 2022 the Council advised Miss X of two possible placement options. It said Mr Z could attend the college as originally planned and complete work experience at D. Or the other option was to complete all work through placement D. It gave Miss X the contact details for D as this was the option she choice which was a separable placement to the college.
26. The Council emailed the college in April 2022. It said Miss X and Mr Z had visited D and had been offered a course. It said this course was due to start in April 2022. But said there were some funding issues with D’s college provider. It asked if Mr Z could complete the course at the college. The Council chased the college for a response a further two times.
27. An annual review was held in April 2022. It said Mr Z had not been at an education setting over the course of the last academic year. It said since the last review, Mr Z had attended the summer term 2021 and was due to start at placement D in September 2022. It said the Council would liaise with D on support around transition, 1:1 support and other support in place for when Mr Z started his course. It noted that the Council, D and tuition provider would ascertain hours for tuition for maths.
28. Miss X complained to the Council in May 2022. She said the mental health team and made a request last year for a home tutor for Mr Z but she said there had been several delays in putting this into place.
29. In the same month, the Council said it had found a tuition service that was able to provide virtual 1:1 maths tuition which could commence in a couple of weeks. It said this could also be provided during the holiday periods and suggested Mr Z commenced his math tuition for five hours each week to get him used to the intensity of the GCSE programme. The Council said it was happy for the five hours to continue during the college holiday periods. It said this tuition would continue until May 2023.
30. The Council responded to Miss X’s complaint under its stage one complaints process in June 2022. It said:
• Miss X had asked for 10 hours of math tuition per week and in consultation with experienced tuition providers, it said it felt that this was too intense;
• as Mr Z was still awaiting to start his placement and wanted to work as a sports coach, it said it would be beneficial to him that five hours per week offered as a remedy. It said this time would be focused on wider life skills, executive functioning such as planning and organising in order to prepare for self-directed work. It said it was for Mr Z and the tutor to agree and decide how best to use this time;
• Miss X and Mr Z had previously declined an offer from the college to deliver the maths provision;
• accepted that the decision on whether tuition in the home should be arranged could and should have been timelier. It offered the remedy of an additional five hours of tuition per week up until May 2023.
31. In June and July 2022 Miss X asked the Council what support would be in place for Mr Z in September. The Council said it would be funding the 1:1 support as outlined in his EHC plan. It said placement D was also securing the support required and said it would ensure Mr Z was introduced to his support worker prior to starting the placement.
32. In August 2022, Miss X told the Council she had been informed that from the start of September the tuition hours would be reduced to five. But the Council said it had asked the tuition provider to continue with the 10 hours until Mr Z started his course in September when it said the hours would be reviewed. The Council also said it was liaising with agencies regarding the 1:1 support.
33. The Council finalised the EHC plan in September 2022. It named D as the placement and stated Mr Z required 1:1 support. It also stated Mr Z required two hours a term allocated for SALT to be provided in lessons. It also stated Mr Z needed a sensory circuit daily or whenever he needed it to help ready him for learning through the college day.
34. In the same month, Miss X told the Council the tuition provider had not been timetabled in next week due to Mr Z starting the course. But she said the arrangements were confirmed previously that this would continue until summer next year. She also said the catchup SALT sessions provided to Mr Z were coming to an end. She asked about ongoing support. The college said it would be securing the provisions in Mr Z’s EHC plan, including SALT, whilst he was at placement D.
35. The Council told Miss X the maths tuition would continue until next Spring. But it said the agreed weekly hours would be reduced when Mr Z’s placement commenced, which had been delayed. This was also fed back to the tuition provider.
36. In October 2022, Miss X told the Council the full 10 hours of tuition had not been provided recently due to the tutor being off sick. She said she had asked the provider to source a replacement which she said was taking some time. On the same day, the Council advised the tuition provider to continue with the 10 hours as the start date for placement D had been delayed.
37. In November 2022 Miss X asked for an update on when a new tutor would be sourced. But the Council said Mr Z was receiving 9 hours per week and said it could not increase to the previous 10 hours. It said this was because it had been originally told the hours would be reduced when Mr Z started his placement. It said the tutor’s timetables had been adjusted to reflect this and it now had no further spaces.
38. Miss X advised the tuition provider that one of the tutors had left two weeks ago and said they had previously been off sick, with no replacement. She also said the other tutor had not worked with Mr Z for some months and stated Mr Z only received two hours in total some weeks. The Council said it would ask the current tuition provider to secure the hours Mr Z was entitled to and the provider sent in times and dates it could offer. The dates offered amounted to 10 hours but Miss X said these hours were not suitable. The tuition service confirmed agreed hours which amounted to 5.5. But Miss X asked it to confirm the remaining hours.
39. In December 2022, Miss X asked the Council when the placement would be starting and asked when Mr Z would meet his 1:1 support. The Council said it had contacted D to ascertain details.
40. In the same month, Miss X asked the Council if the tuition could continue through the holiday period as she said Mr Z was not receiving the full 10 hours tuition. She said if no tuition was provided, Mr Z would forget what he was taught. But the Council said it could not continue through the holiday period. The Council said it had contacted D about a start date, but it had no response.
41. Miss X told the Council in January 2023 a start date of 12 January had been confirmed for Mr Z to start at D. But Miss X said the induction for the Course was on the 17 January 2023 for three hours and the course began on the 24 January 2023. The 1:1 was also sought by the Council. Miss X made the Council aware on 12 January 2023 that the 1:1 had not been provided with any information regarding Mr Z’s disability and how it affected him. In response the Council contacted D to check if the 1:1 had viewed Mr Z’s EHC plan.
42. In the following month Miss X told the Council she had made D aware that the 1:1 support was not working for Mr Z. She said D was trying to obtain a replacement. But she said this was required urgently as Mr Z had missed the last two weeks of his course due to no 1:1 support. She also said the provision of sensory circuit and a suitable room needed to be in place.
43. In March 2023 the Council asked D if it had found a replacement 1:1. But the Council said it would not be looking at other agencies. It also checked whether a quieter space was available as it said Mr Z required sensory circuit daily or whenever he needed it.
44. In the same month Miss X told the Council Mr Z had been struggling with his maths tuition. She asked the Council to arrange for a tutor with experience of working with people with autism.
45. D told the Council the course was going well for Mr Z on 14 March 2023. But Miss X told the Council Mr Z was on a reduced timetable. She said the 1:1 was not suitable, and he had been without it for a considerable amount of time. She said he also required the provisions in his EHC plan. She also said D had told Mr Z not to attend as there was no 1:1 support. The Council arranged a meeting with D to discuss the concerns raised.

Analysis

46. The Participation of Young People guidance states councils have a duty to secure sufficient education and training provision. It says to fulfil this, councils need to have a strategic overview of the provision available in their area and to identify and resolve gaps in provision. In this case the Council contacted the college in June 2021 and gave them the details for placement D to contact. Between September and December 2021 there is evidence the Council continued to chase this up with the college. In December 2021 the Council contacted D and provided Miss X and Mr Z with two course options in February 2022. As stated in paragraph 26, due to funding issues the Council contacted the college to try and arrange a placement. It was then agreed that Mr Z would start at placement D in September 2022. But the start date was delayed, and Mr Z started his course in January 2023. From the evidence seen, the delays were due to issues with either the college or the placement. Therefore, I do not find fault with the Council. It was making efforts to resolve the gaps in the provision.
47. Miss X initially requested a home tutor for Mr Z in July 2021. As stated in paragraph 18 and 20, the college offered Mr Z tuition in November 2021 which Miss X refused. In the following month the Council said it would not provide a home tutor as the college had offered some tuition. The Council told us at that stage it did not have any recommendations that explicitly indicated Mr Z could not access learning on site. It said it was working within the aspirations set by Mr Z. Whilst I understand Miss X did not agree with this offer as she said Mr Z was too anxious to attend the campus, the Council considered this to be suitable. This is a decision that the Council is entitled to make and I cannot criticise it.
48. Miss X sent the Council a letter from Mr Z’s psychiatrist on 22 December 2022 which stated they were in support of Mr Z receiving home tuition due to his anxiety. The Council said it received this letter in January 2022. In May 2022, the Council told Miss X it had found a tuition service who could deliver five hours of online maths tuition. It suggested five hours to get Mr Z use to the intensity of the GCSE programme. This is a decision for the Council to make. The Council has recognised that the decision on whether tuition in the home should be arranged could and should have been timelier and provided a remedy of an additional five hours tutoring. But this caused significant injustice to Mr Z who went without tuition.
49. In May 2022 the Council said it was happy for the tuition to continue during the holiday periods. But in December 2022 it told Miss X the tuition would not continue over the holiday period. The Council told us the proposal of continuing the tuition was a time sensitive remedy to be provided up until May 2023. It has acknowledged that after December 2022, it failed to ensure the tuition continued through the holiday periods. This meant Mr Z went without tuition during this time.
50. At stage one of the complaints process the Council agreed to provide an additional five hours of tuition to be focused on wider life skills. Miss X said this was not provided. But the Council did state in its response it was for Mr Z and the tutor to decide how best to use this time. Therefore I do not consider the Council to be at fault.
51. In October 2022 Miss X told the Council the tutor had not been providing the agreed 10 hours of tuition. The Council told the provider to reinstate the 10 hours which they agreed to. But In November 2022 Miss X reiterated the same concerns to the Council and the tuition provider. The tuition provider suggested a different timetable amounting to 10 hours. But Miss X said some of these hours were not suitable and 5.5 hours were agreed. Miss X asked for the remaining hours to be secured. There is no evidence to suggest the Council responded to this request. This is fault. Miss X has provided us with evidence of what hours of tuition were provided between June 2022 and April 2023 which was considerably less than what was agreed. When the Council became aware in November 2022 the new hours suggested by the tuition provider were unsuitable, it was for the Council to step in and ensure the 10 hours of tuition it had agreed to put in place until May 2023 was secured. This meant Mr Z went without all of the agreed hours of tuition and Miss X spent time and trouble in asking for the additional hours to be provided.
52. In March 2023, Miss X asked the Council to provide a tutor who had experience working with people with autism. The Council told us it is now looking at and considering alternative tutoring options. Whilst the Council is now considering alternatives, there is no evidence the Council responded to Miss X’s request at the time. This is evidence of further fault. It would have been for the Council to consider this request and let Miss X know how it wished to proceed. This caused Miss X significant stress.
53. Mr Z’s EHC plan stated he should receive 1:1 support during lessons. This was sourced by the Council in January 2023. In the following month Miss X told the Council the 1:1 was not working for Mr Z. She said D was looking into sourcing a replacement. But she asked the Council to look into this as Mr Z was not able to access his course. She also said the sensory circuit was not in place. The guidance states if a council asks another organisation to make the provision and the organisation fails to do so, the Council remains responsible. In this case the Council did contact D to see if it had found a replacement and arranged a meeting with D to discuss the concerns raised. This is the appropriate action and I therefore cannot criticise the Council. If the organisation failed to find a replacement after making attempts, the Council would remain responsible.
54. Miss X told us the SALT provision detailed in Mr Z’s EHC plan has not been provided. She said the only SALT provided was as a result of a previous complaint to us (21003540) where the Council had agreed to provide six additional SALT sessions for missed provision during the autumn term in 2020. The Council has provided us with evidence that these additional six SALT sessions were provided between July and September 2022. Miss X asked the Council in September 2021 if any SALT support could be provided to Mr X. I have seen no evidence to suggest the Council responded to this. This is fault. In September 2022, the SALT therapist asked the Council what the plan was for the SALT provision now the additional sessions had ended. The Council said it would be securing the provision for when Mr Z started his course, which was in January 2023. But other than the additional sessions, there is no evidence the Council considered securing the remaining provision whilst Mr Z was not in college. This is fault. This meant Mr Z went without his SALT provision between September 2021 to June 2022 and between September to December 2022.
55. The Council has provided us with an email from the SALT therapist in June 2023 stating eight SALT sessions had been provided for that academic year which is in line with the plan.
56. Miss X told us the Council failed to make her aware of a work experience offer for Mr Z in June 2021. She said she chased this up with the Council who said it was still awaiting an offer. She said she only became aware of this when she complained to us previously. She provided us with an email between the Council and the college. It was noted that Mr Z could start a placement in the summer but required support from the college. The Council told us Miss X and Mr Z were made aware of this in July 2021 at a meeting. We have two differing accounts of what happened and I cannot take a view on whether Miss X and Mr Z were made aware. I have seen no evidence to suggest the Council said it was still awaiting an offer. From the evidence seen the Council said as Mr Z had not been provided with the level of work experience required as part of the course, it was asking the college to organise this. There is evidence the Council contacted the college to arrange this work experience at placement D. I cannot find fault with the Council for this.
57. As stated in paragraph 41 the Council said it would ensure Mr Z was introduced to his 1:1 prior to his course starting. But Miss X told us this did not happen. Miss X told us the induction took place on the 12 January 2023 for three hours. As stated in paragraph 31 Miss X raised concerns about the 1:1 which indicates Mr Z met with them prior to the course starting on the 24 January 2023. I therefore do not consider the Council to be at fault. When Miss X raised concerns about the 1:1, the Council contacted D to check if the 1:1 had been provided with Mr Z’s EHC plan. This is the appropriate action.
58. In acknowledgment of missed education, we recommend a payment per term. In this case the lack of tuition amounted to three terms. I consider an appropriate figure to be £900. In determining this I have taken into account that Mr Z did receive some tuition.

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Agreed action

59. To remedy the injustice caused by fault, within one month of my final decision the Council has agreed to:
• apologise to Mr Z for the faults identified in this statement;
• pay Mr Z £2700 in recognition of the missed education which amounted to three terms;
• pay Miss X £200 to acknowledge the distress caused to her by the faults identified in this statement;
• in recognition of the lack of SALT provision, make arrangements for Mr Z to receive the additional missed SALT sessions.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman