Summary: Mr D complained the Council failed to provide his son’s educational provision as set out in his Education, Health and Care Plan, and about how it handled his complaints. The Council agreed it failed to provide some education and provision for Mr D’s son and failed to respond to his complaint as set out in its Policy. We found some further fault by the Council and its offer was not enough to remedy the injustice the Council caused Mr D and his son. The Council agreed to apologise and make payment to Mr D remedy the injustice its faults caused.

The complaint

1. The complainant, whom I shall refer to as Mr D, complained about the Council’s handling of his son’s (Y) educational provision between September 2021 to June 2022. He said it:
• failed to provide a suitable education and special educational needs provision (SEN) for Y at an essential time where he was transitioning from 1:1 support to classed based teaching;
• failed to take any action to address his concerns regarding the lack of SEN provision, and refused to register his complaint and instigate an emergency review;
• failed to put in place alternative provision when his son’s school placement broke down; and
• it failed to respond to his complaint as set out in its complaints policy.
2. As a result, Mr D said Y experienced distress and a loss of education and SEN provision, which had a greater impact due to the Council’s previous failures to ensure Y received a suitable education. Mr D also said he experienced distress, had time and trouble to bring his concerns to the Council’s attention, and had legal costs.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
8. 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)
9. 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

10. As part of my investigation, I have:
• considered Mr D’s complaint and the Council’s responses;
• discussed the complaint with Mr D and considered the information he provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law, guidance and policy relevant to the complaint.
11. Mr D 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, guidance and policy

Education, Health and Care Plans

12. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
13. EHCPs should be used to actively monitor children and young people’s progress towards their outcomes and longer-term aspirations. They must be reviewed by the Council as a minimum every 12 months.
14. The first review must be held within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review, and the council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHCP or previous review).

Alternative provision

15. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
16. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. 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)
18. 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)
19. 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’)

Council’s Complaints Policy

20. The Council’s Complaints Policy sets out how it will respond to complaints it receives. Its process consists of:
• a stage one local resolution process, in which it will acknowledge complaints within three working days, and provide its response within 20 working days; and
• a stage two investigation, in which it will tell a complainant whether a further stage one response will be issued, or if it will investigate the complaint under its stage two process. Stage two complaints will be responded to within 25 working days, and may be extended to 65 working days for complex cases.
21. The Policy allows the Council to bypass its stage one process in exceptional circumstances. This may be where it finds it appropriate only to issue a stage two response due to the complexity or detail complained about, or where a complainant has previously made complaints.

Service failure

22. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Background

23. Mr D has a son, Y, who is currently in year 11. Mr X says he has had no significant education over the last five years and almost no SEN provision. He has attended placements sporadically, but these have always broken down.
24. Y has an EHCP which sets out the special educational needs (SEN) provision he should receive.
25. Mr D has made several complaints to the Council and the Ombudsman since 2016. We have previously found fault in the Council’s handling of Y educational provision and assessing his needs.
26. Mr D appealed the Council’s EHCP for Y’s to the SEND Tribunal in late 2020, and the Tribunal made its order in August 2021 which set out the SEN provision Y should receive. The Council and Mr D had agreed Y’s school placement with School X before the Tribunal’s decision.

What happened

27. In Summer 2021 Mr D asked the Council to complete an emergency annual review of Y’s EHCP. This was because he had concerns about the provision School X had put in place from September 2021.
28. The Council did not agree to Mr D’s request.
29. Mr D complained to the Council in August 2021. He said it had failed to secure Y’s 1:1 provision as set out in his EHCP, which was due to start in September 2021. He also said some SEN provision to support Y’s transition into School X was not in place.
30. The Council did not register Mr D’s concerns as a complaint, or address Mr D concerns with School X at the time.
31. Y started the 2021/2022 academic year at School X in September 2021, but the arrangement broke down only a few weeks later. Y stopped attending School X in October 2021.
32. School X arranged and held an emergency annual review of Y’s EHCP in October 2021, which the Council attended. The Council continued to engage with Mr D in late 2021 and proposed immediate options and plans to try and engage Y in education. These included assigning a specialist teacher, seeking advice from staff who had previously worked with Y, offering online sessions, and two trips out with a staff member from School X. Y did not engage with these other than attending the two trips.
33. Mr D sought legal assistance as he felt the Council had failed to ensure his son had a suitable and well-planned education available for him. His solicitor sent letter before action was sent to the Council. The Council provided its response to Mr D and his solicitor in November 2021.
34. In early 2022 the Council proposed for Y to work with a small group of children at a school and set out three days of activities which included a visit to the school, home learning and an outing for learning and fun. It said the school would set out the plans in writing for the first few weeks of education.
35. Y was not able to engage with any meaningful educational provision until February 2022. At this time, the Council arranged for a tutor to provide 15 hours per week of tuition, which was largely to support Y’s transition into a new school, School Z.
36. Y started attending School Z in March 2022, which was reported to start well. Y was receiving an education two times a week at reduced hours. This included some math and literacy.
37. In April 2022 Y had an occupational therapy (OT) assessment, and in May 2022 he had a speech and language therapy (SALT) assessment.
38. In July 2022 Y received a fixed term exclusion from School Z due to an incident in the school. He did not return to School Z after the exclusion ended.

Mr D’s complaint

39. Mr D complained to the Council in June 2022 about its handling of Y’s educational provision between September 2021 to June 2022. He said it had:
• failed to provide a suitable education and SEN provision for his child at an essential time where he was transitioning from 1:1 support to classed based teaching;
• failed to take any action to address his concerns regarding the lack of provision, and refused to register his complain and instigate an emergency review;
• failed to put in place alternative provision when his son’s school placement broke down; and
• it failed to respond to his complaint as set out in its complaints policy.
40. He asked the Council to compensate Y for his loss of education and SEN provision, including the distress, time and trouble and costs he had to get the Council to address his concerns.
41. The Council considered Mr D’s complaint and decided to bypass its stage one complaints process due to the detail and issues of his complaint. The Council told Mr D it would respond to his complaint under stage two of its complaints process within 25 working days.
42. In October 2022 Mr D had still not received the Council’s response to his complaint. He asked the Ombudsman to investigate.
43. In response to our enquiries to the Council, it said it would provide its response to Mr D within a week.
44. Two weeks later, the Council provided its response to Mr D’s complaint. It found:
• Y’s EHCP provision was in place from September to October 2021, as it had previously explained in its response to Mr D’s solicitor. It also said it did not accept it was necessary for Mr D to take legal action and it would therefore not refund his legal costs;
• Y did not receive any meaningful educational provision from November 2021 until tutoring started in February 2022. It offered a financial remedy of £1,800 for the lost provision;
• it had put suitable provision in place for Y from February to June 2022;
• Y’s therapy support from a SALT was not in place from September 2021 until May 2022. It offered a remedy of £300 for the lost provision;
• Y’s therapy support from an OT was not in place from September 2021 until June 2022. It offered a remedy of £500 for the lost provision; and
• it had acknowledged Mr D’s complaint, but its response had been delayed and he had time and trouble to raise his concerns. It offered £250 to remedy this.
45. Mr D was not satisfied with the Council’s response and the remedies it had offered. He asked the Ombudsman to consider his complaint.
46. After Mr D made his complaint to the Ombudsman, a Disability and Discrimination Tribunal considered Mr D case against School X about how it had supported and treated Y. The Tribunal found School X had put some of the SEN provision set out in Y’s EHCP in place. However, it found the School had breached the Equality Act due to lack of a transition planning, lack of clarity over roles of key staff, and a failure to put relevant support programmes in place, which placed Y at a significant advantage and led to the breakdown of the placement.

Analysis and findings

47. Mr D complained about the Council’s handling of Y’s educational provision from Summer 2021, which would make his complaint late. However, he continued to raise his concerns with the Council and did not receive its final response until November 2022. I therefore found it appropriate to exercise my discretion to consider his complaint since Summer 2021.
48. While a Tribunal has considered the events which occurred regarding Y’s educational provision at the start of the 2021/2022 academic year, this was a case between Mr D and School X. The decision did not relate to the Council’s role as the authority responsible for Y’s education. This does therefore not impact my ability to investigate Mr D’s complaint against the Council.

Summer 2021 to October 2021

49. Mr D complained the Council had failed to ensure Y’s EHCP provision was in place when the 2021/2022 academic year started which included it had wrongly refused to complete an emergency annual review.
50. I have considered the provision School X and the Council had put in place for Y for the start of the academic year and compared this with the provision Y had a right to receive as set out in his EHCP.
51. It is clear some SEN provision and support was in place for Y at the start of the academic year, and some further provision was being arranged by School X. However, I agreed with the Tribunal’s view that key parts of Y’s EHCP provision was not put in place. This included:
• a structured transition plan;
• a programme for resilience;
• a clear provision plan and a lack of clarity over key staff and their roles; and
• there was little or no sharing of information with Mr D, which meant he could not reassure Y of the provision he would be receiving.
52. Mr D raised concerns to the Council about the SEN provision and planning which had been arranged for Y by School X before the 2021/2022 academic year started. The Council did not act on these concerns and put in place all the required provision set out in Y’s EHCP. This was fault.
53. While I cannot say whether placement with School X would have been successful had the provision been in place and provided to Y, I am satisfied the lack of provision contributed to the quick breakdown of the placement. This meant Y had a loss of education and experienced distress as a result. Mr D also experienced some distress due to the uncertainty this caused and had time and trouble to raise his concerns to School Y and the Council.
54. I found the Council was not at fault for refusing to complete an emergency annual review. This is because:
• an emergency review is relevant for when a child EHCP is no longer accurately describing the child’s needs, or the provision in the EHCP is no longer meeting the child’s needs; and
• a Tribunal hearing was scheduled to take place soon after, which could consider Mr D’s concerns about the suitability of the provision in Y’s EHCP.
55. I acknowledge Mr D’s reasons and why he believes the Council should pay or contribute towards his legal costs for issuing a letter before action to the Council. However, we only consider reimbursement of legal costs, or contributions towards such costs, in exceptional circumstances. I found it was not necessary for Mr D to incur legal costs at the time. He could have brought his concerns to the attention of the Ombudsman.

November 2021 to February 2022

56. The Council agreed it was at fault for ensuring Y had any meaningful educational provision arranged for him between November 2021 until February 2022 when he started receiving some tuition. The Council apologised to Mr D and offered a payment of £1,800 for Y’s loss of education during this period.
57. I found the Council’s remedy was not enough to address the loss of provision Y had. While I acknowledge the Council worked with Mr D and made attempts to make educational provisions available to Y, he was unable to access the provision which was largely due to the impact the breakdown of the school placement had on him.
58. The Council therefore caused Y a loss of key stage educational provision over a four-month period until tuition started with School Z in March 2022. I also found the Council’s fault caused both Y and Mr D some additional distress due to the uncertainty they experienced at the time.

March 2022 to June 2022.

59. The Council and School X started providing Y with some introductions and transition support from mid-February 2022. School Z started providing 15 hours of tuition in March 2022.
60. While I acknowledge Mr D’s concerns about the amount of educational provision Y received from March 2022 to June 2022, I have not found the Council at fault for the steps it took to provide Y with his education during this period. In reaching my view I am conscious:
• the Council, the school and professionals agreed Y should not be receiving a full-time education as he needed to settle and re-engage with education;
• the 15 hours of tuition Y received was planned and considered to help him reengage with education. This included risk planning, introducing Y to tutors, providing a timetable, and using methods which he would find interesting;
• Y had a positive start when he started receiving the provision and engaged with his tutor;
• concerns around Y’s behaviour or incidents were considered and discussed in meetings and steps were put in place to support Y as much as possible; and
• due to Y’s reluctance to go to school and the past issues he had experienced, a cautious approach was needed which meant not all provision in his EHCP could be provided at once.
61. I acknowledge Mr D’s view the tuition Y received was limited and focussed mainly on transitioning into school. He therefore only received some math and literacy tuition. However, I found no fault in the process the Council and the professionals around Y decided what amount of tuition was appropriate for Y to receive, I cannot therefore criticise the merits of the decisions they made.

OT and SALT provision

62. The Council agreed it had failed to put in place the SALT and OT provision set out in Y’s EHCP. It said SALT provision started in May 2022 and OT provision in Summer 2022. It offered Mr D a total remedy of £800.
63. The SALT and OT provision was set out in Y’s EHCP, I therefore agree the Council was at fault, or caused a service failure, for failing to provide these provisions for Y for the whole of the academic year until June 2022.
64. I acknowledge the Council’s view a SALT assessment took place in May 2022 and may have helped School X plan support for Y. However, Y did not receive any therapy provision from the SALT as set out in his EHCP during this period.
65. I therefore found the Council’s remedy to Y for the loss SALT provision was not enough, but its remedy for the loss of OT provision was appropriate.

Complaints handling

66. Mr D said the Council refused to consider to his complaint in August 2021 regarding his concerns about School Y and the Council’s actions to ensure provision in Y’s EHCP was in place for the start of the academic year.
67. I found the Council at fault for not providing a response to Mr D’s complaint. Mr D’s complaint was appropriate and as it turned out, was well founded. I would therefore have expected the Council to investigate his concerns and provide a response as set out in its Complaints Policy.
68. Mr D also complained about the Council’s handling of his June 2022 complaint and its decision not to issue a stage one response.
69. The Council accepted it had caused a delay in responding to Mr D’s June 2022 complaint, which it first responded to in November 2022. It apologised and offered Mr D £250 to remedy the distress and time and trouble this caused him.
70. I found no fault in the Council’s decision to not provide a stage one response. This is because the Council’s Complaint Policy allows it to bypass this process in certain circumstances. It considered Mr D’s complaint and found it appropriate to only provide a stage two response. As there was no fault in the process the Council followed, I cannot criticise the merits of its decision on this matter.
71. However, I agree the Council was at fault for causing a significant delay of 14 weeks to provide its complaint response to Mr D, and it did not do enough to keep him informed about delays in the process. This caused Mr D some distress and further time and trouble to pursue his complaint.
72. I found the Council’s proposed remedy of £250 was enough to remedy the injustice its complaints handling caused Mr D.

Our previous service improvement recommendations

73. We have identified recurrent fault by this Council in a number of previous decisions over the last 18 months about arranging educational provision in EHCP’s, arranging alternative provision, and its complaints handling. Including in recent report which is due to be published.
74. The Council has agreed to make service improvement, and these included:
• to ensure it addressed young people or parents concerns about the provision schools provided compared to what was in EHCP’s;
• to ensure suitable alternative provision was considered and provided without delay;
• for the Council’s leadership to consider and address its difficulties in accessing SALT support, or similar support due to lack of availability of such services within the Council’s area; and
• to ensure it responds to complaints in a timely manner, and where fault is identified to make proposals of remedies where appropriate.
75. The recommendations we have already made recently are the same as I would have made, I have therefore not made any further service improvement recommendations.

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Agreed action

76. To remedy the injustice the Council caused to Mr D and Y, the Council should, within one month of the final decision:
1. apologise in writing to Mr D and Y;
2. pay Mr D £2,600 to use as he sees fit for the benefit of Y for the loss of educational provision between September 2021 and March 2022, and a further £900 for Y’s loss of therapy support from an OT and SALT;
3. pay Mr D £500 to acknowledge the distress he and Y experienced as a result of the uncertainty the Council’s faults caused them; and
4. pay Mr D an additional £250 for the time and trouble he had to get the Council to respond to and address his concerns.

In total the Council should pay Mr D £4,250.

77. The Council should provide us with evidence it has complied with the above actions.

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Final decision

78. There was fault which caused an injustice. It is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman