Summary: Mrs X complained her daughter missed out on education and special educational need provision as a result of delays caused by the Council. We have found fault with the Council and it has agreed actions to remedy the loss of education and distress caused.

The complaint

1. Mrs X complained the Council did not fulfil its duty under Section 19 by not providing her daughter (Y) a suitable education since February 2023. She said Y missed education and SEN provision and suffered stress, anxiety and uncertainty as a result of the Council’s fault. She said it has also had a severe impact on her own and her husband’s mental health.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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. I have considered Mrs X’s complaint and have spoken to her about it.
5. I have also considered the Council’s response to Mrs X and to my enquiries.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation and guidance

General Section 19 Duty

7. 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’s not within the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.

What happened

8. From 2021, Mrs X home educated her daughter, Y. In December 2022, she requested the Council carry out an Education Health Care (EHC) needs assessment for Y.
9. The Council referred Y to a specialist support team for a Social and Emotional Mental Health (SEMH) assessment.
10. In February 2023, Mrs X informed the Council that she wanted Y to return to school as she could not support Y’s needs at home. The Council said Mrs X agreed to continue homeschooling in the interim while awaiting the results of the SEMH assessment.
11. The Council said that it did not explore alternative provision for Y as Mrs X was continuing to provide home education. The Council deemed this to be suitable education provision.
12. The Council issued a draft Education, Health and Care Plan (EHC Plan) in April. This outlined the provision that Y needed.
13. The specialist team assessed Y in June and completed a SEMH report for Y in July. The team sent a copy of the assessment to the Council that same month. Unfortunately, it was sent via a secure email that was missed by the Council until September. When the Council discovered it in September, the report was no longer accessible.
14. The Council issued Y’s EHC Plan later that month. In October, the Council obtained Y’s SEMH assessment and shared it with Mrs X. Mrs X said the assessment is not reflected in the EHC Plan and resulted in Y missing out on provision. Mrs X can appeal the content of the EHC Plan.
15. From October 2023, the Council arranged alternative provision with two providers. After one of these broke down, the Council increased Y’s hours with the other provider and made a referral to another provider at Mrs X’s request.
16. Mrs X complained to the Council in September about the 5 months of education Y missed as a result of the Council’s delays and the stress this caused the family. The Council agreed to pay Mrs X £2000 in recognition of the missed education and £500 for the delayed EHC Plan and the stress caused.
17. Mrs X brought her complaint to the Ombudsman in December 2023.

My findings

18. The Council acknowledged that it was at fault that caused Y to miss out on 5 months of education. It offered £2000 in recognition of this. Our Guidance on Remedies suggests where fault has resulted in a loss of educational provision, we would usually recommend a remedy payment between £900 and £2400 per term to acknowledge the impact of that loss.
19. Given that Y had a draft EHC Plan at the time of the missed education, she also missed out on SEN provision. The Council has agreed to make a remedy payment at the higher end of the scale. £4000 for the 5 months of missed provision.
20. I did not recommend the Council pay a further remedy payment beyond October 2023 despite Mrs X saying that Y is still out of education. This is because the Council made alternative and interim education arrangements from this point.
21. The Council also recognised the impact the delayed EHC Plan had on Y and her family and offered £500 in recognition of the stress caused. This amount is in accordance with our Guidance on Remedies, and the Council has agreed to pay this to Mrs X.

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Agreed action

22. Within 4 weeks of my decision, the Council has agreed to:
1. Pay Mrs X £4000 in recognition of Y’s missed education provision.
2. Pay Mrs X £500 to remedy the avoidable distress caused by the delays in the EHC Plan process.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. I have completed my investigation. I have found fault with the Council for delays in the EHC Plan process and for not delivering alternative provision for Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman