Summary: There is no evidence of fault. The Council arranged alternative educational provision for a child out of school. The parent did not specifically ask for a second adult to be present at first. Once this specific request was made as the parent informed the Council they had returned to work full time, the Council then arranged for a second adult to be present during tuition sessions, which was later specified in an Education, Health and Care plan.

The complaint

1. The complainant, who I shall call Miss X, complains the Council arranged a tutor for her child, Y, but did not fund the personal assistant required by the tuition company, who needed two adults to be present.
2. Miss X says this meant that she could not work, as she needed to be home to supervise the tuition sessions.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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

5. I read the papers put in by Miss X and discussed the complaint with her.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. Miss X and the organisation 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

Key facts

8. Miss X applied for a EHC plan needs assessment on 15 September 2021, for her primary school aged child, Y. The Council made the decision to assess on 25 October. Y was diagnosed with Generalised Anxiety Disorder in January 2022 and Miss X sought alternative provision as Y could not attend school due to health needs on 7 January 2022.
9. The Council confirmed it would arrange tuition on 28 January. The Council decided to issue an EHC plan on 3 February and shared the draft EHC plan on 10 February.
10. The final EHC plan was issued on 1 March 2022 naming a mainstream primary. Miss X appealed to the SEND tribunal on 25 March 2022. On 19 April the Council agreed to name an independent specialist school from September 2022. Transition days were arranged for the new school.
11. The notes of a meeting dated with Miss X, the Council, primary school and tuition service do not include any reference to a second adult being required by the tuition service.
12. Miss X sought a personal budget on 25 April 2022 to fund alternative provision.
13. Miss X emailed the Council on 5 May 2022. She asked if the nanny she had already employed, as she also had a younger child, could be partially funded to look after Y while her younger child went to nursery.
14. Miss X gave pre-notice of judicial review proceedings on 27 May 2022. She mentioned the alternative provision suggested by the school would cost her £100 for transport and £168 for the nanny per month so could not go ahead. The transport costs were later funded by the school.
15. The specialist school, which Y was having transition days to, withdrew its offer of a place on 19 July.
16. The Council records show that it first became aware of a specific request from Miss X for a second adult to support the tuition sessions on 1 August. Meeting notes of 24 August record the Council was considering an EOTAS package, with an increase in hours from the tutor. The notes say that ‘Miss X felt that she and her partner both wanted Y to attend school’ and that ‘Miss X and her partner both work from home but if they want to go out for work meetings they feel unable to as they don’t feel they can leave the tutor alone with Y. They wanted a support worker’.
17. Miss X emailed the Council on 31 August to say ‘I am happy for the tutoring to start once there is a familiar adult in place as I can not do this as I have returned to work full time’.
18. The Council agreed for a teaching assistant to be present on 20 September 2023.
19. Miss X now has Education Other Than At School (EOTAS) named in the EHC plan, which includes the second person to be present during tuition sessions.

My analysis

20. Miss X said to the Ombudsman ‘the home tuition could not happen unless there was a second person present for safeguarding reasons. This was not her stipulation, but from the Council or tutor agency’.
21. I have seen no written evidence the tutor or Council needed a second person to be present for educational purposes. Y is primary school age so she would not be alone at home and Miss X did not request the learning took place out of the home.
22. The evidence I have seen says that both Miss X and her partner worked at home and the Council was aware of this. There was also a nanny employed to look after her younger child. It was in May 2022 that Miss X first asked if some of the sessions with the nanny could be funded. So, I can find no evidence of fault by the Council up to this point.
23. After this point, the situation then changed rapidly. Just before the summer holidays the specialist school withdrew its offer of a place. Miss X informed the Council that she was returning to full time work so the tuition could not start until a second adult was provided at the end of August. The Council agreed to the second adult on 20 September. I can find no evidence of delay by the Council in reconsidering the request when Miss X’s circumstances changed.
24. I understand that Miss X feels that as the Council agreed to fund the second adult in September, it should have agreed to this earlier and so she should receive a backdated payment for her costs. My view is the situation in January 2022 was very different to that in September. The situation changed and so the Council was entitled to reach a different view on the need for a second adult to when tuition was first suggested. I can find no fault or delay by the Council when considering Miss X’s requests.

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Final decision

25. I have completed my investigation of this complaint. This complaint is not upheld as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman