Summary: Ms X complains the Council failed to provide suitable education for her son Y when he could not attend school. The Council is at fault as there is no evidence it satisfied itself that alternative education provision made for Y was meeting his needs. It also delayed in issuing Y’s final and amended Education, Health and Care plans. The Council has offered a payment of £500 for the distress and disadvantage caused by the delays in issuing Y’s final Education, Health and Care plan which is an appropriate remedy. It has agreed to apologise to Ms X and Y for the distress caused by the failure to check if the alternative provision met Y’s needs and the delay in issuing his amended Education, Health and Care plan and make a payment of £800 to Ms X.

The complaint

1. Ms X complains that the Council:

• Failed to ensure her son, Y, received suitable education provision and wrongly considered Y was not engaging with the provision.
• Failed to ensure Y received the provision set out in section F of his Education, Health and Care Plan.
• Delayed in issuing the final Education, Health and Care Plan in 2021 and the amended Education, Health and Care plan in 2022.

2. As a result, Y did not receive appropriate education and support so he was unable to sit his GCSEs and was caused significant distress. Ms X was also caused significant distress.

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What I have and have not investigated

3. I have not investigated the actions of the school as it is not within our jurisdiction.

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The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. 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)
6. 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)
7. 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

8. I have:

• considered the complaint and the information provided by Ms X;
• discussed the issues with Ms X;
• made enquiries of the Council and considered the information provided;
• invited Ms X and the Council to comment on the draft decision.

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What I found

Law and guidance

9. Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
10. Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, it should step in to arrange provision.
11. We have issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
12. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Education, Health and Care plans

13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out Education, Health and Care (EHC) assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

14. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
15. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. 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)

What happened

19. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that has happened.

Alternative provision

20. Ms X’s son, Y, has autism spectrum disorder and health conditions. Y was unable to attend school due to severe anxiety.
21. Together for Children deliver children’s services on behalf of the Council. However, the Council retains responsibility for the delivery of its statutory services so I mainly refer to the Council in this statement.
22. In March 2021 Y’s school requested home tuition for Y. The Council’s vulnerable pupils panel agreed home tuition should be provided. This was for four hours per week. The panel’s letter to the school said a review should be carried out to determine if the tuition is meeting Y’s needs.
23. The tuition reports show Y initially engaged with the tuition however later reports show he struggled to engage with the tuition. Ms X has said Y struggled to engage as he was only given revision exercises to do for English and Maths rather than actual learning and a broad syllabus.
24. In July 2021 the vulnerable pupils panel agreed to extend Y’s tuition until his EHC plan had been finalised.
25. In December 2021 Ms X sent an email to an officer raising concerns that The tuition was not meeting Y’s needs and he would be unable to sit his GCSEs. She also said Y was not receiving the provision set out in section F of his EHC plan. The Council has been unable to find evidence of Ms X’s email or the action taken.
26. The Council ended Y’s one to one tuition stopped in February 2022 as it was only intended to be in place while he was assessed for an EHC plan. The Council has said it was agreed with Y’s school that it would work on a reintegration plan for Y to include one to one tuition at the school. This was not successful so the tuition recommenced in May 2022. Ms X has said the school did not provide any education for Y at this time.
27. Ms X consider the Council failed to provide sufficient alternative provision to Y as he only received four hours of tuition per week and did not cover a broad syllabus so he was unable to sit his GCSEs. The School did not provide lesson plans for Y and Ms X had to provide her own text books. Ms X has said Y did not engage fully with the tuition as he was not given substantive work to engage with and was only given revision exercises.
28. In response to my enquiries the Council has said:

• The virtual school worked closely with Y’s school to ensure an appropriate curriculum was followed based on his prior learning and EHC plan outcomes. The Council accepts the provision in his EHC plan was not entirely fulfilled through home tuition.
• One to one tuition is very intense and Y had been struggling to access education due to anxiety. So it was felt a more intensive package of home tuition would be potentially overwhelming for Y. The approach typically adopted by the virtual school in cases of school based anxiety is to start with this level of input and build up as the child engages and is able to cope with increased demands.

EHC plan

29. In February 2021 Ms X requested an EHC needs assessment for Y. In late March 2021 the Council agreed to carry out an assessment. The Council issued the draft EHC plan in early June 2021. The final EHC plan should have been issued in early July 2021 in order to comply with the statutory 20 week timescale. The Council issued the final EHC plan at the end of October 2021. This was 15 weeks overdue. The final EHC plan named Y’s current school.
30. An annual review meeting was held in early February 2022 for Y’s transition to post 16 education. The Council issued an amended draft plan in late February 2022. The Council issued the final amended EHC Plan in mid June 2022.
31. In response to my enquiries, the Council has acknowledged Y did not receive all the provision set out in section F of his EHC plan. It has said every effort was made to prioritise meeting gaps in Y’s learning through close liaison with the school. Reports for Y’s annual review in February 2022 refer to liaison between the school and tutor.

Complaints

32. Ms X made a complaint to the Chief Executive of Together for Children in February 2022. There is no evidence to show Together for Children or the Council responded to this complaint. In May 2022 Ms X made a further complaint which was considered through Together for Children’s two stage complaints procedure.
33. At stage two, the Council acknowledged that it had delayed in issuing Y’s EHC Plan in 2021. It offered a remedy for £500 to acknowledge the potential impact on Y’s educational development.

Analysis

Failed to ensure Y received suitable alternative provision

34. The Council has a duty under section 19 of the Education Act 1996 to make the provision of suitable education to children who are out of school for other reasons. In the event alternative provision is made for a child, the Council has a duty to satisfy itself the provision is suitable and meets the child’s needs. Based on the evidence I have seen so far, I do not consider the Council satisfied itself the alternative provision made for Y was suitable and met his needs.
35. There is no evidence to show the Council reviewed whether the tuition was meeting Y’s needs. When approving the school’s request for home tuition, the vulnerable pupils panel requested a review to be carried out to determine if the tuition was meeting Y’s needs. There is no evidence to show any review was undertaken or that the Council satisfied itself the tuition was meeting Y’s needs. The Council has provided the tutor’s weekly reports but there is no evidence to show how the Council considered these and satisfied itself the tuition was meeting Y’s needs. This is fault.
36. Ms X complained to an SEN officer that the tuition was not meeting Y’s needs in December 2021. There is no evidence to show the Council followed up her concerns with the school or virtual school and satisfied itself that the tuition was meeting Y’s needs at this time. This is fault.
37. There is also no evidence to show that the Council satisfied itself the school was providing sufficient education which met Y’s needs when his tuition stopped in February 2022. Ms X has said the school did not provide education for Y at this time. So there is doubt that Y received education during this time.
38. The Council has acknowledged home tuition did not fulfil the provision set out in section F on the EHC plan in its entirety. The Council has an overarching duty to ensure the provision in section F is delivered. There is no evidence to show the Council checked if tuition was delivering the provision in section F. This is fault.
39. On balance, I cannot conclude that Y would have received substantially more education and been able to sit his GCSEs if the Council had checked whether the tuition was meeting Y’s needs and if it could deliver the provision set out in section F. I am mindful that Ms X considers Y did not engage as the tuition did not provide an appropriate education for him to engage with. She also considers Y could not engage when the tuition was moved to the school premises. I have also taken account of the fact Y has engaged with the education at his college. But the home tutors’ reports evidence Y had difficulty in engaging with four hours of tuition per week, including when the tuition was delivered away from the school premises. I therefore cannot know if Y would have been able to fully engage and cope with more hours of tuition even if more education and all the provision in section F had been provided.
40. However, the Council’s failure to check if Y was receiving sufficient education causes distress and uncertainty to Ms X as she will never know what the outcome would have been. The Council should remedy this injustice.
41. As stated above, there is significant doubt Y received suitable education between February and May 2022 when the tuition stopped. The Council should make a symbolic payment of £300 to Ms X to acknowledge that it is likely Y did not receive suitable education at this time.

EHC Plans

42. The Council has acknowledged it delayed in issuing Y’s EHC Plan in 2021 when responding to Ms X’s complaint. The Code provides local authorities should issue EHC plans within 20 weeks. The Council took 35 weeks and this is fault. This meant the identification of Y’s SEN was delayed together with the provision required to meet his needs. The Council offered a payment of £500 to Ms X to acknowledge the potential impact on Y’s educational development. This is an appropriate and proportionate remedy.
43. I consider the Council also delayed in issuing Y’s amended final EHC plan in 2022. The Council should have issued the final amended plan within eight weeks of Ms X’s comments on the plan. The Council took four months to issue the final plan. I am mindful that some of the delay was caused by the Council seeking a placement for Y. But the time taken is significantly in excess of the statutory timescale so is fault. Y had an existing EHC plan at this time and the provision in section F was largely the same as in his previous EHC plan. So I do not consider the delay caused significant injustice to Y. However, the delay will have caused some distress to Ms X which the Council should remedy.
44. The delays in issuing the final EHC plan in 2021 and the amended EHC plan in 2022 suggests the Council is not meeting the statutory timescales for issuing final EHC plans and amended plans. In response to my draft decision, the Council has explained it runs a weekly clinic to monitor EHC plan timeliness. It also monitors monthly completions and forecasts future demands. I therefore consider the Council is monitoring its compliance with the statutory timescales and taking appropriate action to improve its performance in this area.
45. The Council has also said it will develop more regular management supervision where home tuition or alternative placements are being offered. This is to ensure children’s needs and the quality of provision are being regularly reviewed. Children provided with home tuition will also receive more effective induction and monitoring moving forward.

Complaint

46. There is no evidence to show the Council or Together for Children responded to Ms X’s email to the Chief Executive of Together for Children. This is fault which will have caused frustration to Ms X. It was also a further missed opportunity for the Council to check if Y was receiving sufficient education. The failure to respond will have caused frustration to Ms X.

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Agreed action

47. That the Council will:
1. send a written apology to Ms X and Y and make a symbolic payment of £500 to Ms X for the distress caused to her by its failure to check whether the alternative education provision made for Y met his needs, whether he was receiving all the provision in section F of his EHC plan, distress caused by the delay in issuing the amended EHC plan in 2022 and failure to respond to her initial complaint. This payment is in addition to the payment offered by the Council for the delays in issuing Y’s EHC plan in 2021. The Council should also make the apology in accordance with our new guidance on remedies.
2. Make a symbolic payment of £300 to Ms X for Y to acknowledge it is likely Y did not receive suitable education between February and May 2022.
3. Provide evidence to the Ombudsman of the action taken to improve the monitoring of home tuition and alternative placements to ensure they are meeting children’s needs.

The Council should take the action at a) and b) within one month of my final decision. It should take the action at c) within three months of my final decision.

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

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Final decision

49. Fault causing injustice.

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Investigator's decision on behalf of the Ombudsman