Summary: Miss X complained the Council failed to provide full-time education, suitable alternative education and provision set out in her child, Child Y’s Education, Health and Care (EHC) Plan. The Council was at fault. Child Y’s EHC Plan provision was delayed by two months and it did not provide all the special educational provision between March and July 2023. In addition, the Council communication was poor, which all caused Miss X distress and uncertainty. The Council will apologise, pay Miss X £2,200 for the injustice caused to her and Child Y’s missed provision and put service improvements in place.

The complaint

1. Miss X complained the Council failed to provide full time education, suitable alternative education and provision set out in her child, Child Y’s EHC Plan. Miss X also complained the Council communicated poorly with her. Miss X said as a result of the delay Child Y had missed out on education to which they were entitled and caused distress and frustration.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
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)
6. 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.

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How I considered this complaint

7. I considered:
• the information Miss X provided and spoke to her about the complaint;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plan

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
10. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Maintaining the EHC Plan

11. 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)
12. 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.

Transfer of EHC Plan between councils

13. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)

What happened

14. Child Y has a hearing impairment and attention deficit hyperactivity disorder (ADHD). Child Y’s mother, Miss X and Child Y moved to the Council area, from Council 2’s area, in mid-February 2023. The Council was aware of Child Y’s move to its area a few days later.
15. Child Y had an Education, Health and Care (EHC) Plan which said Child Y should attend a special school and named a special school in the Council 2 area Child Y and Miss X used to live in. Council 2 issued Child Y’s EHC Plan in early February 2023 and transferred it to the Council in late February 2023. Child Y was in Year 6 between February and July 2023.
16. Child Y’s final amended EHC Plan issued by Council 2 set out the following key provisions noted in Section F that Child Y should receive:
• support from staff with training on supporting a child with a hearing impairment and support with their hearing equipment;
• small group and one to one support from staff that specialise in language development of deaf children with hearing equipment;
• weekly visits from sensory support services;
• regular access to a speech and language therapist (SALT) that specialise in hearing impairments;
• teaching assistant working three times a week on SALT programme with Child Y;
• access to small group work and access to peers that share a communication system so they can take part in group learning;
• speak to an occupational therapist for calming activities; and
• acoustically suitable learning environment.
17. In early March 2023 the Council made a welcome call to Miss X and discussed Child Y’s needs and current ability. The Council records noted Miss X said Child Y ‘need face to face tuition ideally outside of the family home, in a library for example but will try in the home if needed.’
18. The same day the Council EHC Plan Coordinator emailed Miss X and said they had made a referral to the Council’s alternative education service, which would provide Child Y with education until a placement was found. Advice was also given to Miss X about the Council’s virtual school sensory support team (VSSS) and sent the details for specialist schools to Miss X to consider for Child Y. The Council sent Miss X a learning pack for Child Y. Miss X said the learning pack was not suitable for Child Y. Miss X asked the Council to consult five specialist schools and apply for a placement at all the specialist schools, including specialist school, School 1.
19. Between March 2023 and April 2023 the Council consulted a mainstream primary school, five specialist schools, including School 1 and one tutor company.
20. In mid-March 2023 the Council spoke to Miss X and explained it had made referrals to specialist schools. The Council offered Child Y online learning, but the Council said Miss X refused this because Child Y would not engage. The Council made a video call with Child Y and sent Child Y another work pack. It said it would look into alternative provision for Child Y and would set up a weekly call with Miss X and Child Y.
21. In late March 2023 a tutoring company, Company 1 spoke to Miss X and completed Child Y’s first assessment. Five days later the Council video called Miss X and said it was finding a suitable venue for Child Y’s tutoring, Miss X said she accepted Company 1.
22. In mid-April 2023 Child Y’s EHC Plan Coordinator emailed the speech and language service which said Child Y was not known to the service. Four days later the EHC Plan Coordinator emailed the speech and language therapy service and asked it to carry out a speech and language therapy (SALT) assessment for Child Y.
23. In late April 2023 Company 1 carried out a home visit with Miss X and Child Y. Miss X said she accepted the provision set out by Company 1.
24. In the second week of May 2023 the Council put Child Y on a part-time timetable. This was with a one to one teacher from Company 1 for seven hours and 45 minutes per week The teaching took place three days a week and in two different locations.
25. The Council records show a teacher for the deaf, Teacher 1 from VSSS carried out a home visit with Miss X and Child Y. They discussed Child Y’s tutor from Company 1 being a teacher of the deaf. Teacher 1 offered help with Child Y but it was agreed because of the tuition with Company 1 there was no further needs from Teacher 1 for Child Y’s hearing loss.
26. The speech and language service carried out a home visit with Miss X and Child Y. Miss X said she wanted Child Y to have full-time education in a special educational needs school and Child Y wanted social contact and not one to one tutoring. They discussed Child Y’s communication strengths and difficulties, goals and outcomes and strategies to help Child Y.
27. In late May 2023 Miss X contacted the Council and complained Child Y was still on a part-time timetable and asked for full-time education in a school or suitable alternative provision. The Council replied the next day and the Council gave an update on the specialist school placements and said it would look into extra alternative provision.
28. Of the schools consulted a mainstream primary school in Child Y’s catchment did not respond. The Council received responses from five of the specialist schools consulted. One school was too far away, the others (including School 1) could not offer Child Y a place.
29. In early June 2023 Miss X complained to the Council she said:
• when she moved into the Council area she asked the Council to arrange a school placement for Child Y;
• she asked the Council to apply for five schools, but the schools did not offer Child Y a place to start in September 2023 which was not communicated with her;
• she received poor communication from Council officers; and
• Child Y was only receiving seven hours and 45 minutes with a tutor per week in two different locations and over three different days. Miss X wanted Child Y to receive a full-time education immediately and provided with a suitable school place for September 2023.
30. In mid-June 2023 the Council made a referral to an alternative education provider, Alternative Provision 1, requested by Miss X.
31. In mid-June 2023 the EHC Plan Coordinator spoke to Miss X on the telephone and advised her to appeal Section I of Child Y’s EHC Plan to the SEND Tribunal. Miss X emailed the EHC Plan Coordinator the next day and said the mediation service explained a decision letter was needed from the Council to go straight to appeal. The EHC Plan Coordinator said she would issue Child Y’s EHC Plan as soon as possible.
32. The next day the Council emailed Miss X and said Alternative Provision 1 would be available from September 2023 and the Council said it would ask Company 1 for more hours.
33. The Council sent Miss X its stage 1 response in late June 2023, and said:
• there was a high demand for places in specialist schools, with request for places higher than places available;
• it was seeking to provide Child Y with a full-time school place and had consulted five schools but the schools could not provide Child Y a place;
• it would continue to work towards placing Child Y in a full-time school placement, alternative school options had already been discussed and communication had improved; and
• it was sorry Miss X was unhappy with the part-time provision and it had noted Miss X’s request for more hours and would increase the hours if capacity was available.
34. Miss X was unhappy with the stage 1 response and escalated her complaint because she was distressed and frustrated.
35. In late June 2023 the Council issued Child Y’s final amended EHC Plan and told Miss X of her right of appeal to the SEND tribunal. It named interim provision until a long-term placement was found in Section I. Section F remained the same as the previous EHC Plan but included an enhanced transition and took out the need for OT help.
36. The next day the Council issued its stage 2 response. It said there was no merit in carrying out a stage 2 investigation because Miss X was unhappy with the interim provision in Child Y’s EHC Plan. The Council acknowledged it had issued Child Y’s final amended EHC Plan and the appropriate remedy was through the SEN appeal process and SEND tribunal. The Council gave Miss X our contact details, Miss X remained unhappy and contacted us.
37. The same day the Council spoke to Miss X about Alternative Provision 1 and extra hours with Company 1. The day after the Council told Miss X it was not possible to get extra hours with Company 1 because the venues had no availability and Miss X said tutoring could not take place within her home.
38. The Council emailed Miss X about one-to-one online work and offered further work packs. Miss X remained unhappy about online learning for Child Y.
39. In early July 2023 Miss X appealed to the SEND tribunal because the Council had not named a school placement in Section I of Child Y’s EHC Plan.
40. Between early September 2023 and late October 2023, Child Y received one to one tutoring for nine hours per week and also received ten hours provision at Alternative Provision 1.
41. In late October 2023, Child Y started to attend a special school, School 1, full-time.
42. In late November 2023 the Council issued Miss X with a final amended EHC Plan which named School 1 in Section I and Miss X withdrew her SEND tribunal appeal.

My findings

Delayed EHC Plan provision March to May 2023

43. The Council was at fault when it delayed putting in place provision set out in Section F of Child Y’s Final EHC Plan. To be in line with the regulations Child Y’s Final EHC Plan provision should have been put in place 15 working days after it was made aware Child Y had moved to the Council area, by mid-March 2023. The Council spoke to Miss X in early March 2023, it made video calls with Miss X and Child Y and it sent Child Y a work pack and online activities in March 2023 but did not provide the provision set out in Section F of Child Y’s Final EHC Plan. It also took the Council until the second week of May 2023 to put in place a part-time timetable. This was a delay of eight weeks and was fault. It caused Miss X distress and uncertainty and Child Y was not provided any education or the provision in their plan for eight weeks.

EHC Plan provision early May to July 2023

44. Child Y had a Final EHC Plan in place that set out the provision they should receive. Child Y received seven hours and 45 minutes face to face one to one tuition with an appropriately trained tutor. Child Y received some of the provision set out in paragraph 16 and 35 above. However, they did not receive the group provisions there was a delay with SALT advice and delay with the VSSS visit. The Council records did not show Child Y received any occupational therapy or enhanced transition which is provision they were entitled to. That was fault.
45. The Council did not seek to source an alternative provider or consider how else it could meet Child Y's needs until June 2023 which was delay and fault and contributed to the lack of provision.

EHC Plan provision early September to late October 2023

46. Between early September and late October 2023 Child Y received 19 hours provision per week, including 10 hours at Alternative Provision 1 and nine hours one to one tutoring. The tuition and alternative provision met the majority of the provision set out in Section F. The Council was not at fault in this period.

School referrals and communication

47. The Council spoke to Miss X in early March 2023 about possible school placements and consulted schools including the five she asked it to.
48. The Council did not communicate with Miss X about the school placement responses until she complained in late May 2023. The lack of communication on school placements caused Miss X uncertainty. The Council will apologise, make a symbolic payment and put in place a service improvement.
49. In mid-June 2023 the Council misinformed Miss X when she should appeal to the SEND tribunal about Child Y’s Final EHC Plan, this was fault. The Council officer told Miss X she could appeal before she had received Child Y’s Final EHC Plan or the Council decision letter. This caused Miss X confusion and time and trouble contacting the mediation service. The Council will apologise and put in place a service improvement.

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Agreed action

50. Within one month of the final decision the Council will apologise to Miss X for the uncertainty and distress caused by delays in providing the provision set out in Child Y’s EHC Plan between mid-March 2023 and late July 2023, distress and uncertainty caused by poor communication relating to school placement responses and confusion and time and trouble caused by incorrect appeal information.
51. Within one month of the final decision the Council will pay Miss X £300 to acknowledge the uncertainty and distress caused by the Council’s delay and failure to provide all the provision set out in Child Y’s EHC Plan between mid-March and late July 2023 and the poor communication about the school placement responses.
52. Within one month of the final decision the Council will pay Miss X a symbolic payment of £1,900 to acknowledge the lost provision between mid-March 2023 and late July 2023. This remedy was calculated in line with the Ombudsman’s guidance on remedies.
53. Within one month of the final decision the Council will remind relevant staff:
1. to make sure provision in EHC Plan’s begin on the day of the move to the Council area or within 15 working days of becoming aware of the move if this is later;
2. of the need to keep parents updated about the outcome of school consultations; and
3. of the appeal process where appeals can only be made to the SEND tribunal once a decision letter and Final EHC Plan has been issued.

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Final decision

54. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice and prevent reoccurrence of the faults.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman