Summary: The Council was at fault for not putting in place adequate provision for a child when they were out of school. The Council was also at fault for the time taken to find the child a school placement. This caused injustice as the child has fallen behind in their development. To remedy the injustice caused the Council agreed to apologise, make a payment to acknowledge loss of education to the child and secure the child suitable alternative provision while it finds a school placement.

The complaint

1. Ms X complains the Council failed to provide her son with suitable education while he was out of school.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. As part of the investigation I considered the information provided by Ms X. I made enquiries with the Council and considered the information received in response.
5. I sent a draft of this decision to Ms X and the Council and considered the responses received.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Law and guidance

7. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’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.
8. 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)
9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
10. 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)
11. 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)
12. 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)
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

14. There has been extensive correspondence between Ms X and the Council since January 2021. In this section of the statement I have summarised the key events only and did not refer to every single contact and communication.
15. Ms X’s son Y has special educational needs and has an EHC plan.
16. In July 2020, the Council issued Y’s EHC plan. This named a specialist school where Y attended. Some of the special educational provision in Y’s EHC plan included the following:
• Regular access to small group activities and mainstream lessons.
• A consistent and stable educational placement which can meet Y’s additional support needs and education needs and invest the time and resources in achieving his outcomes.
• A fine motor skill programme administered on a regular basis by a trained key worker, with opportunities to practice mark making, using a variety of mediums/activities (e.g. finger-painting, sand, foam, brushes in water on outside walls).
• A programme of speech and language therapy following advice from the assessment from a Speech and Language Therapist.
• Daily support from a key worker to develop his communicative intent, attention and listening skills and to develop his receptive understanding.
• Opportunities to engage in structured conversations with peers (talking partners).
17. Following the breakdown of Y’s school placement. The Council put in place alternative provision for Y with Provider B. This provision started in January 2021. This initially consisted of four hours of mentoring and tutoring sessions twice per week at Y’s home or on zoom.
18. The Council consulted with four schools in January 2021, to see if any of them could offer Y a placement.
19. In March 2021 and April 2021, the records show Y’s tutor attended Ms X’s property for the sessions but no one was in, so they left craft activities on her doorstep for Y to complete. From late April 2021, the sessions were held at a neutral venue. The Council also consulted with a further seven schools in May 2021.
20. Only one school responded to say they could meet Y’s needs but they did not have capacity so offered to put Y on their waiting list.
21. From July 2021, the tutoring and mentoring sessions increased to 8 hours per week. Throughout 2021, Ms X reported issues with the tutors to the Council. This consisted of tutors arriving late and not being qualified to meet Y’s needs.
22. In December 2021, the tutoring was put on hold as Provider B had concerns about staff being able to manage Y following an incident in one of the staff member’s car. The records showed that the tutoring from Provider B continued until around March 2022.
23. Following this the Council said it offered Ms X another alternative provider but she declined this.
24. In January 2022, the Council held an annual review of Y’s EHC plan. As part of this it commissioned an Occupational Therapist (OT) and a Speech and Language Therapist (SALT) report for Y. The Council decided to amend Y’s EHC plan.
25. The Council issued a draft amended EHC plan for Y in May 2022. At this time the school who placed Y on its waiting list had a placement available for him. Ms X said she did not want Y to attend this school due to the amount of time he would spend traveling there and back each day.
26. On 20 June 2022, the Council issued Y’s final EHC plan following his annual review in January 2021. This EHC plan contained the following special educational provision:
• Regular access to small group activities and mainstream lessons.
• Fine motor skills programme administered on a regular basis.
• SALT programme as per the SALT report. The SALT report recommended a specialist school placement for Y and regular weekly one hour SALT sessions.
• Small group activities for social skills and Lego therapy.
• Block of 36 OT sessions over the course of the academic year in school.
27. On 21 September 2022, Ms X made a formal complaint to the Council. Ms X complained Y had no educational placement. She also said the alternative provision the Council put in place was unsuitable.
28. The Council consulted with a further three schools in October 2022.
29. In November 2022, the Council responded to Ms X’s complaint. The Council said:
• In January 2021 Provider B offered Ms X zoom sessions for Y as the country had gone into a national lockdown.
• In March and April 2021 Ms X was not at home for any of the sessions when the tutor turned up for face to face sessions at her house. The Council acknowledged there were times the tutor was late but on most of these occasions Ms X was not at home at the scheduled time.
• It would not pay for Ms X’s taxis to sessions as she wanted the sessions at this location and the provider offered these at a nearby library or her home.
• The tutoring ended as Ms X stopped engaging with the provider in early 2022.
• It had consulted with many different schools to try to find Y a placement. One school had offered Y a placement but Ms X rejected this.
• Y’s case officer was currently working to put in 2:1 tutoring for Y and will review this after the Christmas holidays.
30. Ms X asked the Council to consider her complaint at the next stage in December 2022. Ms X said she rejected the offer of one school as the travel time for Y to attend was over an hour each way and he could not cope with this. Ms X also said she told the tutor in March and April 2021 she would not be there for the allotted time as she had to take her other child to school. Ms X said the tutor agreed to put activities through her letter box for Y to complete. Ms X said the quality of the teaching was poor and some of session time was spent travelling and buying supplies from the shops.
31. The Council provided its final response to Ms X’s complaint in January 2023. The Council said it had considered Ms X’s points about the standard of Provider B and apologised that it had fallen short of the standards the Council expected. The Council said it was continuing to look for a suitable placement for Y and offered Ms X a discretionary payment to reimburse her for her taxi journeys.
32. Ms X remained dissatisfied and complained to the Ombudsman. Ms X said Y did not have a school placement and was not receiving education.
33. In response to my enquiries the Council said it had offered alternative provision to Y of 10 hours tutoring and 15 hours mentoring per week, but Ms X had refused this. The Council said this ended in May 2023. The Council also said Y did receive an offer of a placement from a school the Council consulted but Ms X declined this placement.

Analysis

Missed provision

34. Ms X complains her son has not had suitable education since January 2021. The Council put in place tutoring and mentoring for Y in January 2021. This was initially for a few hours each week. This was not full time education and from the reports the Council provided I am satisfied Y was not receiving the special educational provision in his EHC plan. This was fault. In addition, there were issues with sessions being missed either because of Ms X or the tutor, which ultimately led to this provision breaking down.
35. At this time Y’s EHC plan specified he needed a stable educational placement, small group activities, a programme of SALT. I cannot see that the provision from Provider B gave him this.
36. When the provision from Provider B broke down in the spring of 2022, the Council said it offered Ms X alternative provision of 10 hours tutoring and 15 hours mentoring. While I recognise Ms X refused this, I do not consider this would have provided Y with the special educational provision in his EHC plan. This was fault.
37. The EHC plan issued for Y in June 2022, specified weekly SALT sessions, small group sessions including Lego Therapy, regular access to small group activities and mainstream lessons. Much of the provision in the EHC plan needed to be delivered in a school setting and as Y did not have a school placement it would not have been possible for him to receive this.
38. Y has suffered an injustice as he has not received the level of education and the special educational provision he should have. As a result, this has impacted on his development. Ms X has also suffered an injustice as she has had to look after Y while he has been at home and has spent time pursuing this matter with the Council.

Delay in finding Y a school placement

39. The Council started looking for a school placement for Y in January 2021. Over the course of the last two years the Council has consulted with lots of schools, unfortunately many of these were unable to offer Y a placement.
40. There have been some gaps where it is not clear what the Council was doing to look for a school placement for Y. This was fault. From July 2021 until June 2022 it does not appear that the Council consulted with any schools. After the Council issued Y’s new EHC plan, in June 2022, following his annual review it did not consult with any schools until late October 2022.
41. The Council did manage to find Y a school placement as a school put him on its waiting list in June 2021 and offered him a placement in May 2022, however Ms X declined this. If the Council considered this placement suitable and there was nothing else available, it should have issued an EHC plan for Y naming this placement. Ms X would then have been able to appeal to the SEND Tribunal if she wanted to challenge the school placement.
42. While Ms X bears some responsibility for the delay in finding Y a school placement, as she declined what the Council considered a suitable offer, the Council still has not found Y a school placement and over two years have passed. This has caused Y significant injustice as much of his special educational provision needed to be delivered at school.

Delay in issuing Y’s EHC plan following his annual review

43. The Council held an annual review of Y’s EHC plan in January 2022. It did not issue the final EHC plan until June 2022. This was fault.
44. As the Council proposed to amend Y’s EHC plan it should have sent out details of the proposed amendments within 4 weeks of the annual review meeting and the final amended plan within 8 weeks of the proposed amendments. Therefore the Council should have finalised Y’s EHC plan by late March or early April 2022.
45. While the Council wanted to obtain OT and SALT reports for Y following the annual review meeting, these were completed in February 2022. As a result Y has had to wait longer for an EHC plan. I do not consider this has caused him additional injustice as he was already not getting the provision in his EHC plan and did not have a school placement.

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Agreed action

46. Within one month of my final decision the Council agreed to out the following:
1. Provide Ms X with a written apology for not providing Y with adequate education and the special educational provision in his EHC plan and for the time taken to find a school placement.
2. Take whatever action is necessary to find Y a school placement.
3. Pay Ms X £9,900 for the benefit of Y’s education to recognise loss of provision from January 2021 until November 2023.

In coming to this figure I have considered the Ombudsman’s guidance on remedies which recommends £900 - £2,400 per term for lost provision. In this case I considered Y was without adequate provision from January 2021 to November 2023 which amounts to five and a half terms. I considered a payment of £1,800 per term was suitable. I considered Ms X declined a school placement for Y. I considered the Council put in place provision from Provider B initially for Y and that the Council offered mentoring and tutoring sessions at a later date which Ms X declined.

4. Offer Ms X alternative provision for Y and look at what it can do to put the provision in Y’s EHC plan in place.
5. Pay Ms X £600 per month from December 2023, for each month Y does not have a school placement or adequate alternative provision and special educational provision in place.
6. Pay Ms X £200 to acknowledge the distress she has suffered.
4. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation and found the Council was at fault which caused injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman