Summary: Mrs X complained the Council failed to provide her son Y with a suitable education from July 2022 until September 2023. We found fault with the Council for failing to arrange suitable alternative education for Y. The Council has agreed to apologise to Mrs X and Y, make a payment in recognition of Y’s lost education and a symbolic payment recognising the significant distress and frustration caused to Y and Mrs X.

The complaint

1. Mrs X complained the Council failed to provide education and specialist provision in line with her son, Y’s Education Health and Care (EHC) Plan since July 2022 when his named placement could no longer meet his needs.
2. Mrs X states this has negatively impacted her son’s education and his mental health. It had also caused distress, frustration and financial hardship for the whole family and they now receive help from a social worker.

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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. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. 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 have and have not investigated

9. I have investigated Mrs X’s concerns about the education provided to Y from July 2022 to March 2023.
10. I have not investigated Mrs X’s concerns about matters prior to July 2022. The Ombudsman expects a person to complain to them within 12 months of knowing something has happened which affects them. This restriction applies to matters arising prior to July 2022.
11. Additionally, Mrs X has appealed to the First Trier SEND tribunal about some of her concerns about matters which occurred prior to July 2022 including the placement named in the Education Health and Care (EHC) Plan issued for Y in August 2020. The Ombudsman cannot investigate matters where the complainant has exercised their right to appeal to a tribunal.
12. I have not investigated Mrs X’s concerns about the education provided to Y from March 2023 onwards. This is because Mrs X had a right of appeal to the SEND tribunal once the Council issued a final amended EHC Plan in March 2023.

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How I considered this complaint

13. As part of my investigation I:
• Discussed the complaint with Mrs X and considered her complaint;
• Made enquiries of the Council and considered its response;
• Had regard to the relevant legislation, guidance, and the Ombudsman’s guidance on remedies; and
• Set out my initial thoughts on the complaint in a draft decision statement and invited Mrs X and the Council to comment.

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What I found

14. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The Plan sets out the child’s needs and what arrangements should be made to meet them.
15. The EHC Plan is set out in sections which include
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Maintaining EHC Plans

16. 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).

17. 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. 

18. Councils have a duty under section 42 of the Children and Family Act 2014 to secure special educational needs provision named in section F of an EHC Plan. This applies where a child is medically or otherwise unable to attend the school named on the ECH Plan.

Alternative provision

19. Councils have a duty to arrange the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. (Section 19 of the Education Act 1996)
20. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
21. Guidance says:
• Local authorities should work together with agencies and parents to ensure best outcomes.
• Provision should be full-time unless it is not in the child’s best interests.
• There is no legal deadline to start provision; it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one-to-one), which is intensive, need not be full-time. Provision must be similar to what is offered in school. (Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013)

What happened

22. Mrs X’s child, Y, has a diagnosis of Autistic Spectrum Disorder (ASD). He also has social anxiety and mental health difficulties.
23. In August 2020 Y was issued with an EHC Plan. The plan named a mainstream school. Mrs X disagreed with the named placement, and she appealed to the SEND tribunal.
24. In March 2021 the Council conceded Mrs X appeal to the SEND Tribunal. Y’s EHC plan was amended, and a specialist placement named in section I.
25. Section F of Y’s amended plan set out the specialist provision he required. This included:
• A programme of speech and language therapy
• Timetabled support for at least one hour a week to develop social skills.
• Enrichment programmes to build social networks outside the classroom.
• Timetabled sessions (at least once a week) to work on strategies to manage his anxiety.
• Support from an adult who has experience of supporting young people with Social Emotional and Mental Health (SEMH) needs to help Y engage in a wider range of activities.
• Support to explore sensory items within in his educational setting to help Y identify if they help him regulate during the day.
• A referral made by his school to an Occupational Therapy Service.
26. Y’s EHC Plan also set out that he would receive support from the Community Adolescent Mental Health Service (CAMHS).
27. In September Y began attending the school named in his EHC Plan.
28. In July 2022 Y’s school removed him from its roll because it could no longer meet his needs.
29. In September Mrs X, Y’s CAMHS worker and a Family Intervention Worker contacted the Council about Y not receiving any educational provision, despite the new academic year beginning and it being his GCSE exam year. They told the Council this was negatively impacting Y’s mental health.
30. In November, following multiple contacts from Mrs X and those working with Y and his family, the Council put in place six hours of one-to-one tuition per week for Y. The Council also said it would consult with suitable educational establishments to find Y a new placement.
31. Also, in November the Council issued a draft amended EHC plan for Y, following an emergency review of his plan because of the change in his circumstances. Mrs X requested amendments to the amended plan.
32. The Council consulted with nine educational establishments about a placement for Y, but a placement was not found. The Council did not consult Mrs X’s preferred option for Y, College Q.
33. In late January 2023 Mrs X sought an update on Y’s case. She learned Y’s SEND caseworker had left but she had not been told. Unhappy Mrs X made a stage one complaint to the Council.
34. The Council’s response to Mrs X’s complaint agreed there were delays in communicating with her. Meanwhile Y’s new SEND caseworker contacted Mrs X to say she was arranging a multi-disciplinary team meeting to discuss Y’s case.
35. In February Mrs X was told the Council was looking to arrange an Education Other Than At School (EOTAS) package for Y.
36. In March the Council consulted College Q about a placement for Y.
37. Also, in March the Council issued Y with a new EHC Plan. The plan said that Y would receive education through an EOTAS package from September. The plan did not name a setting in Section I.
38. Between March and July Mrs X and professionals working with Y and his family continued to chase up progress on his case. They also set out the impact being out of education was having on Y’s mental health and self-esteem. They also said his family was being negatively impacted.
39. In July Y was allocated a new SEND caseworker.
40. In early August Mrs X escalated her complaint to stage two of the Council’s complaints procedure. Mrs X complained that Y had not received a suitable education since July 2022, and he did not have a placement arranged for the new academic year.
41. Later in August Y’s SEND caseworker confirmed he would have an Education Other Than At School (EOTAS) package.
42. However, in September Y began a placement at a mainstream college.
43. In late September the Council replied to Mrs X’s complaint. It agreed there had been significant delays at all stages, including handling her complaint. It apologised and upheld her complaint.
44. Mrs X remained unhappy and contacted the Ombudsman.
45. In response to our enquires the Council said:
• There are limited records for Y’s case. It said its Special Educational Need Department (SEND) was operating at 60% capacity during this period and caseloads were too high for officers. This accounts for the delays in Y’s case and in responding to Mrs X's complaints.
• In November 2022 it allocated Y a caseworker and put in place tuition for Y. It said it meet with Mrs X and Y several times, but they were reluctant to engage with possible settings except for College Q.
• It agreed in July 2023 that Y would have a EOTAS package from September 2023. However, this altered in September, and he began a placement at a mainstream college.

Finding

46. The Council was aware from July 2022 that Y had no access to education after his school said it could no longer meet his needs. The Council did not provide Y with any alternative provision between July 2022 and November 2022, when it provided six hours of one-to -one tuition. This is fault. Y missed education he was entitled to. This is injustice.
47. Guidance says that provision should be full-time unless it is not in the child’s best interest. I have seen nothing which suggests that full-time education was not in in Y’s best interest. I acknowledge that six hours of one-to -one tuition is more intensive than six hours of teaching in a school environment, however I do not consider it equates to a full-time education.
48. The Council also had a duty to provide Y with the provision set out in his EHC Plan. I have seen nothing demonstrating it made any attempts to provide the provision in Y’s plan.
49. Case records show the Council was responsible for delay in taking actions to provide Y with education. In its response to our enquiries, it acknowledged that caseworkers had caseloads that were too big to manage and that it did not communicate with Mrs X as it should have done. These matters contributed to the Council’s failure to provide Y with an education and caused him and Mrs X avoidable distress, uncertainty and frustration.
50. Y’s case records also show that professionals working with him including his CAMHS worker, raised concerns about the impact not receiving an education was having on his mental health and self-esteem. The records also show Y’s family’s social worker contacted the Council about the impact his lack of education was having on him and his family. I am concerned the Council appears to have taken no action in response to the concerns raised by those working with Y and his family.
51. The Council took too long to consider Mrs X’s complaints. The responses did not explain what action the Council would take to resolve matters, despite upholding her complaint at both stages of its complaints process.

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Agreed action

52. The Ombudsman’s Guidance on Remedies says 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.
53. Within one month of the final decision, the Council should:
• Write to Mrs X and Y apologising for the distress and frustration caused by the identified fault;
• Make Mrs X a payment of £5500 made up of:
1. £500 for the frustration and time and trouble caused to Mrs X in pursuing this matter;
2. £500 for the distress caused to Mrs X and her family;
3. £500 for the distress caused to Y; and
4. £4000 for the loss of educational provision for Y (made up of £2000 per term x 2 terms.) The figure reflects that Y missed education during his pivotal GCSE exam year but also takes into account that he did receive six hours per week of one to one tuition. This money should be used for Y’s benefit.
54. Within two months of the final decision the Council’s will:
• Carry out a review of how it’s SEND team carries out its due diligence for children and young people with EHC Plans who for whatever reason cannot attend their named placement. This is to ensure it fully considers its duty to provide the education outlined in their EHC Plans and to prevent gaps in their education.
• Explain the actions and steps it is taking to ensure SEND caseworkers have manageable caseloads.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation and uphold Mrs X’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman