Summary: Miss X complained, on behalf of her son, Mr Z, about the support the Council provided for his special educational needs. There was fault in how the Council failed to ensure Mr Z received all the support in his Education Health and Care plan or the full tuition hours that he should have done. This meant Mr Z went without some of that support. The Council agreed to apologise to Mr Z and Miss X, and to pay a financial remedy.

The complaint

1. Miss X complains, on behalf of her son, Mr Z, about the support the Council provided for his special educational needs since August 2022. She says the Council:
1. has not provided all the support included in Mr Z’s education health and care (EHC) plan, including one-to-one support, sensory circuits and speech and language therapy;
2. has not provided all the tuition hours it agreed or arranged for a specialist maths tutor;
3. wrongly refused to arrange an educational psychology assessment for Mr Z;
4. has not supported her to make arrangement for Mr Z to take his exams at home; and
5. refused to fund her choice of independent advocate.
2. As a result, Miss X says Mr Z has gone without the support he needed which caused both her and Mr Z avoidable distress and frustration. She wants the Council to properly recognise the support Mr Z missed and arrange the support he needs.

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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 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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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What I have and have not investigated

8. I have investigated events between April and July 2023.
9. We investigated events up to March 2023 in a previous investigation so we have already made a decision about events before April.
10. For any new events which happened after July 2023, Mr Z would need to complain to the Council about these first. This is because the law says the Ombudsman can only usually investigate complaints where an organisation has had the chance to investigate and respond first. I do not consider there are any good reasons to investigate new events after Miss X complained to us in July 2023 without giving the Council an opportunity to respond first.

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How I considered this complaint

11. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

Education Health and Care plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’s needs and what arrangements should be made to meet them.
15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
17. 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. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

Background

18. Miss X’s son, Mr Z, has special educational needs and an Education Health and Care (EHC) plan issued by the Council.
19. The latest EHC plan for Mr Z is from September 2022. This plan said Mr Z would attend a mainstream post-19 education provider and would have a range of support, including:
• a one-to-one learning support assistant for classroom activities;
• a sensory circuit to help prepare him for learning during the day; and
• support from a speech and language therapist for 6 hours each school year.
20. Miss X complained to the Council in April 2023 that the education placement Mr Z attended was still not providing:
• the one-to-one support in classroom lessons;
• speech and language therapy and help with interview skills; or
• the sensory circuits.
21. She also complained that although the Council had agreed to provide 10 hours a week a- home tuition for Mr Z, he was only receiving two hours a week.

My findings

Arranging the support in Mr Z’s EHC plan

22. In our previous investigation, we found the Council had acted appropriately in responding to Miss X’s concerns about how the education placement had arranged the support in Mr Z’s EHC plan. This included the one-to-one support Mr Z which had not been working for him. As of March 2023, the Council had been arranging a meeting with the education placement to address this.
23. Despite arranging that meeting, the Council had not provided any evidence the problems with one-to-one support were addressed. There is no evidence Mr Z received effective one-to-one support during classroom sessions between April 2023 and the end of the school year in July 2023. On the balance of probabilities, I am not satisfied the Council ensured Mr Z had effective one-to-one support as set out in his EHC plan. That was fault.
24. Miss X says that, because of the lack of support, Mr Z failed the course he had been pursuing. I cannot say the lack of one-to-one support was the cause of Mr Z failing his course. However, I am satisfied there is a remaining uncertainty about this and that is an injustice to Mr Z.
25. I am also not satisfied the Council ensured the education provider made arrangement for Mr Z to have access to sensory circuits between April and July 2023. In a review of Mr Z’s EHC plan in April 2023, Mr Z said these were not in place and the Council has provided no evidence it ensured they were. I am satisfied that was fault which meant that Mr Z did not have access to the sensory circuits as set out in his EHC plan, which caused him avoidable frustration.
26. Since our last investigation, the Council has provided evidence it arranged and provided all the speech and language therapy sessions set out in Mr Z’s EHC plan for the 2022/23 school year.

At-home tuition

27. In its response to my enquiries, the Council accepted it did not provide all the 10 hours a week tuition it had agreed to arrange for Mr Z since April 2023. It said it had commissioned further hours of tuition from a different provider in October 2023. Miss X said Mr Z only received two hours a week tuition starting in April 2023 and this increased to 6 hours a week from October 2023. The Council has not provided any evidence to show what hours Mr Z received during that time.
28. I am satisfied Mr Z only received around two hours a week tuition between April 2023 and September 2023, leaving a shortfall of eight hours a week.
29. I am also satisfied, on the balance of probabilities, that Mr Z has only received around six hours a week tuition since October 2023, leaving a shortfall of four hours a week.
30. The failure to ensure that Mr Z received the tuition hours agreed was fault which meant that Mr Z did not receive the tuition it agreed he should have since April 2023. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. Taking into account the at-home tuition was only part of Mr Z’s overall education and that some of the tuition was provided, I consider the following to be suitable remedies:
• £480 a term while Mr Z was only receiving two hours a week tuition between April and September 2023; and
• £240 a term from October 2023.
31. When it asked for further tuition in October 2023, the Council explicitly asked for tutors with experience of teaching students with similar needs to Mr Z. Before this, the Council arranged tuition through a company Miss X and Mr Z had previously been satisfied with. On the balance of probabilities, I am satisfied the Council sought tuition for Mr Z in line with his EHC plan and both his and Miss X’s preferences.

Educational psychology assessment

32. The Council explained why it did not arrange a new educational psychology assessment for Mr Z when Miss X asked for this in April 2023. It said the issues Mr Z and Miss X wanted an assessment to address had already been taken into account in Mr Z’s EHC plan. Therefore, it did not consider updated advice was necessary.
33. Whether to arrange an updated assessment was a decision for the Council to make. I am satisfied the Council considered Miss X and Mr Z’s request for an updated assessment and decided it did not need that updated information or advice at the time. Since there was no fault with how the Council made this decision, I cannot question the outcome.

Exam arrangements

34. Applications to take exams at home usually need to be made by the exam centre where someone wishes to take their exam. Sometimes, applications for such arrangements need to be approved by the exam board responsible for the exam. In most cases, these arrangements are made by the education provided the person attends. The Council does not have the authority to approve or make arrangements for exams to be taken at home.
35. I am satisfied the Council has explained to Miss X how to ask for approval for Mr Z to take exams at home and that this would be the responsibility of the education placement Mr Z attends to arrange. I do not consider there was any fault in how the Council responded to Miss X’s request for support with arranging at-home exams for Mr Z.

Independent advocate

36. The Council commissions an independent advocacy service through its special educational needs Local Offer. I am satisfied the Council offered to refer Mr Z to that advocacy service but that Miss X refused that offer on his behalf.
37. There is no evidence to suggest the service the Council offered could not meet Mr Z’s needs. I do not consider it was fault for the Council to refuse to fund Miss X’s choice of advocacy for Mr Z when it already funded a suitable service.

Effects on Miss X

38. Since Mr Z struggles to make complaints for himself, Miss X complained to the Council on his behalf. I am satisfied the Council missed opportunities to resolve Miss X’s complaints which meant she was put to avoidable time and trouble complaining further on Mr Z’s behalf.

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Agreed action

39. Within one month of my final decision the Council will:
• arrange for Mr Z to receive the full 10 hours a week tuition he should be receiving;
• apologise to Mr Z for the failing to ensure he received all the support in his EHC plan between April and July 2023, and the delay in arranging the full tuition hours from April 2023;
• pay Mr Z £1,380, made up of:
1. £300 to recognise the uncertainty over Mr Z’s performance on his college course due to the lack of effective one-to-one support and the lack of sensory circuits;
2. £720 to recognise the tuition Mr Z missed out on for the one and half terms between April and October 2023; and
3. £360 to recognise the shortfall in tuition for the one and a half terms between October 2023 and July 2024.
• apologise to Miss X for the avoidable time and trouble cause by its failures to resolve her complaint sooner; and
• pay Miss X £150 to recognise that avoidable time and trouble.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. Subject to further comments by Miss X, Mr Z and the Council, I intend to complete my investigation if the Council agrees with my recommendations. There was fault in how the Council failed to ensure Mr Z received all the support in his EHC plan or the full tuition hours that he should have done. This meant Mr Z went without some of that provision. The Council should apologise to Mr Z and Miss X, and should pay a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman