• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr X complains the Council has failed to provide his son, Y, with the provision set out in his Education Health and Care Plan. We find fault by the Council in failing to ensure Y received a suitable education as set out in his Education Health and Care Plan. The Council has agreed to apologise, make a symbolic payment and implement additional provision to remedy the injustice caused.

The complaint

1. Mr X complains the Council has failed to provide his son, Y, with the provision set out in his Education Health and Care Plan. Specifically, he says the Council has failed to provide speech and language therapy; touch typing; peers support and socialisation; individualised homework and weekly reports to parents.
2. Mr X says that because of this, Y has not attended school since October 2022 and has missed vital provision. This has impacted negatively on Y and his family.

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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 discussed the complaint with Mr X and considered the information he provided. I made enquiries of the Council and considered its response.
7. Mr X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Summary of the legal context

8. The council has a duty to secure the specified special educational provision in an Education Health and Care (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)
9. 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.

What happened

Summary of key events

10. Below is a chronology of key events, it is not meant to show everything that happened.
11. Y has various conditions which affect his ability to access education. He is now 12 years old. In September 2022, the Council issued a final amended EHC Plan which named a mainstream school (the school) as appropriate provision for him. Y started at the school in September that year. The Council has acknowledged that not all provision was in place when he started. A meeting took place between the Council, the school and Mr and Mrs X to discuss provision in Y’s EHC Plan. Another meeting took place in October between the school and Mr and Mrs X.
12. On 2 November, Mrs X told the Council her child was missing education. She said Y was suicidal when at home and bitterly unhappy about how he felt in school.
13. On 3 January 2023, Mrs X sent an email to the school and the Council. She said Y was deeply depressed, finding school a worrying place. Mrs X asked about plans in place for Y. Mrs X said it was the Council’s responsibility to ensure Y received an education yet it had never contacted her despite many requests.
14. On 10 January 2023, Mrs X sent another email to the Council. Mrs X said Y’s EHC Plan set out full-time 1:1 support, an Emotional Literacy Support Assistant (ELSA) and Speech and Language Therapy (SALT) but none of this was being provided at home or remotely. Mrs X said attending school was causing Y anxiety and requested a plan to transition him back into school.
15. A week later Mrs X sent another email to the Council and the School. She said Y had not received an education since October 2022. Mrs X said the EHC Plan was not implemented properly at the start of the term, and this had caused the placement to breakdown.
16. A referral for hospital education was made for Y. Y was dual registered with hospital education from February to March. However, hospital education said the referral did not meet the medical needs criteria for students accessing hospital education.
17. In March, Mrs X told the Council that Y was still not receiving any education or social contact.
18. In May, the Council offered Mrs X an emergency annual review of Y’s EHC Plan. Mrs X declined this. Mrs X requested for Y attend a democratic learning environment three days a week.

Mr X’s complaint to the Council.

19. On 15 November, Mr X complained to the Council. He said several provisions in Y’s EHC Plan were not being fulfilled and had not been in place since he started at the school in September. Mr X specifically referred to handwriting support; SALT; a laptop; staff training; areas related to group work with peers; weekly communication between parents and the school regarding homework and regular feedback of Y’s progress. Mr X said the placement was at risk of breaking down due to essential social interventions not being in place, such as 1:1 provision and staff training not being implemented.
20. On 8 December, the Council responded to Mr X’s complaint. Mr X escalated his complaint to stage two.
21. On 13 January, the Council responded to Mr X’s stage two complaint. It upheld the following:

• lack of SALT provision of 20 minutes per day with trained staff specifically focussed on relationships. The Council said the therapist was not in school at the start of term and this provision was in place from early October;
• spelling and touch interventions did not appear to have started. The Council said staff had received appropriate training but there was a delay in the equipment being available; and
• trauma based training for staff.

22. The Council did not uphold the following areas of Mr X‘s complaint, that it failed to provide:

• 15 minutes daily social intervention to help Y build friendships so he felt safe at school;

• individualised homework;
• a laptop; and
• weekly communication between Y’s parents and the school about homework.

The Council’s response to my enquiry letter

23. The Council said it was aware from mid-November 2022 that Y was not attending school. At the end of term one Y’s attendance was 66% and at the end of term two it was 38%. Y’s attendance until the end of January 2023 was at 28%.
24. In terms of alternative provision, the Council said hospital education was in place from 2 February to 9 March.
25. The Council said, SALT provision was in place at the school from October 2022, but Y had only attended one session due to absence. The Council said the SLT therapist had offered to deliver SALT at home or at school.
26. Equipment to support Y’s spelling and touch typing arrived at the school on 7 November 2022.
27. The school had attempted to support Y with group work and daily 15 minutes social intervention within the classroom environment which worked well during the first term. The Council said although the school could offer opportunities for social intervention outside the classroom it could not make Y’s peers engage in activities if they did not want to. Mr and Mrs X were made aware of this. To support Y transitioning back into school it was suggested that Y attend school at lunchtimes to see his peers and develop his social skills. It was also suggested that he could attend a SALT session after lunch.
28. Playfulness, Acceptance, Curiosity and Empathy (PACE) training had been offered and the school was in discussions about how and when this could be delivered to staff.
29. The Council says the school was in regular contact with Mr and Mrs X, sometimes daily about Y’s progress at school. There is no evidence that Y received individualised homework.
30. In response to the spelling and touch typing provision, the Council said the school had experienced difficulties in recruiting a Learning support Assistant (LSA). As a result, it had to appoint agency LSA staff who were new to the school and Y. Therefore, the provision was not in place for the start of term one. When staff were appointed, the provision was not implemented as Y was not attending school. The Council and school have agreed to arrange additional provision for Y.
31. Y was allocated his own laptop on 20 September 2022 and this was available for him to always use. But, the school allege that Y preferred not to use it, either choosing to hand-write or offer answers verbally.
32. The Council said that in May 2023, the family requested that Y attend a democratic learning environment, three days a week, with support from a mentor from an alternative provider. At the time of responding to my enquiries, the Council said it was in the process of arranging this along with training for the identified mentor by the SALT and occupational therapist who have knowledge of Y. As of June 2023, there is evidence of the Council discussing various options with Mrs X.

Analysis

33. The Council has a statutory duty to provide education in cases where children are not able to attend school because of medical conditions or otherwise. We expect Council’s to consider a child’s individual circumstances and decide, at the time, whether it is a duty to provide suitable alternative provision.
34. 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 the provision is not in place at any time.

35. The Council has accepted that not all provision was in place when Y started school in September 2022. Following a meeting in mid-September, it would also have been aware there was a risk of the placement breaking down. In November, Mrs X told the Council Y was not attending school; this is confirmed by the decline in his school attendance.
36. The Council said the school had offered to provide some provision at home, but this was declined. I have seen no evidence of this. Furthermore, if this was the case, I would expect to see the Council had satisfied itself that the provision offered by the school was suitable and met the requirements set out in Y’s EHC Plan. There is no evidence of this. This is fault. There is no evidence to support the Council’s statement that SALT was offered to Y at home. This is fault. It is also concerning that the Council has made statements about offering support and Mr and Mrs X declining when there is no evidence available to support this.
37. The Council said, to support Y transitioning back into school it was suggested that Y attend school at lunchtimes to see his peers and develop his social skills. However, Mr and Mrs X have confirmed that 1:1 support was not available at the school to enable this to happen. This was important as Y had been absent from school for several months and felt anxious about returning. I accept the Council could not make Y’s peers engage in activities if they did not want to, however, the failure to provide this provision as set out in Y’s EHC Plan amounts to service failure.
38. I have seen no evidence the Council considered or offered Y any alternative provision from September 2022, when it became aware that not all provision was in place. The law is clear, the Council had a duty to provide Y with the educational provision as set out in his EHC Plan. It did not and this was fault. By the time provision was available Y had stopped attending school. This caused Y to miss out on his entitled education for an extended period, receiving a minimal amount of education and SEN provision in September 2022.
39. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as, the severity of the child’s SEN as set out in their EHC Plan, any educational provision that was made during the period, whether additional provision can now remedy some or all the loss and whether the period concerned was a significant one for the child or young person.
40. In this case, I have taken into consideration that Y has significant needs in relation to his SEN which are clearly identified and accounted for in his EHC Plan. I have also considered that Y was transitioning to a new learning environment and was significantly isolated from his peers for almost a year. Given Y has severe SEN and that it may be possible to fund further provision now to remedy his loss of education and SALT provision, my view is that a figure of £2,200 per term is appropriate. This also takes into account that Y did receive some provision in the first term, albeit limited. The Council has agreed to my recommendation.
41. There was clear communication from Mrs X to the Council from November 2022, raising her concerns about the lack of education and social intervention in place for Y. I have seen no evidence the Council responded to these emails. This lack of communication is fault and would have added to Mr and Mrs X’s distress, frustration, and uncertainty. I understand that Mrs X is currently being assessed for post traumatic stress disorder. I cannot attribute this solely to the faults by the Council as there are a myriad of factors that can affect a person’s health and wellbeing. However, I acknowledge the significant distress caused to Mr and Mrs X by the Council’s faults and the time and trouble of complaining. I acknowledge the Council has been communicating with Mrs X since April 2023 about suitable alternative provision for Y.
42. The Ombudsman’s guidance on remedies recommends a remedy payment for distress of up to £500. In cases where the distress is severe or prolonged, we may recommend more. I have made a recommendation for a symbolic payment below.

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Agreed action

43. To remedy the injustice caused by the faults identified in this statement, within one month of my final decision the Council will:
    • 1. apologise to Mr and Mrs X and Y for failing to provide adequate provision for Y causing them distress and frustration;
      2. pay Mr and Mrs X £2200 per term (September 2022 to July 2023) when Y did not receive education and SEN provision and support. This payment should be used for Y’s educational benefit; and
      3. pay Mr and Mrs X £500 for the injustice caused to them.
44. Within two months of my final decision the Council will provide additional SALT and spelling and touch-typing provision to Y to address shortfalls.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have found fault by the Council causing an injustice to Y and Mr and Mrs X. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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