• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to secure the full provision detailed in her child’s Education, Health and Care Plan since January 2022. We found fault with the Council failing to provide education for Mrs X child for three terms and four weeks. We also found fault with the Council failing to provide suitable Teaching Assistant support and access to an Occupational Therapy Motor Skills programme for five terms. We also found fault with the Council failing to provide 12 months Farming Provision and 23 months and 3 weeks access to Hydrotherapy. The Council agreed to pay Mrs X £12,750 in recognition of her child’s missed educational provision, including failure to source a Teaching Assistant making other education provided not at the needed standard. The Council agreed to apologise to Mrs X and pay her £300 for the frustration and distress caused to her through its delays and handling of this matter. The Council also agreed to provide training to staff about the importance of ensuring provisions detailed in Section F of an Education, Health and Care Plan are quantifiable and specific.

The complaint

1. Mrs X complained the Council failed to secure the full provision detailed in her child’s Education, Health and Care (EHC) Plan since January 2022.
2. Mrs X complained the Council failed to secure the educational activities, the tutor or teacher and the Teaching Assistant for various periods since January 2022 resulting in a loss of her child’s education.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) 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. 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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What I have and have not investigated

6. I have investigated Mrs X’s complaint about the educational provision for her child from January 2022 until the end of January 2024.
7. I have ended my investigation from 30 January 2024 because Mrs X brought her complaint to the Ombudsman on 22 January 2024 following the Council completing its complaints process.
8. A council must be given opportunity to respond to a complaint before the Ombudsman investigates. The timing of the Council starting to provide tuition on 30 January 2024 for Y and the need for the Council to be given opportunity to respond to a complaint means it is suitable for us to end of our investigation from 30 January 2024. Should Mrs X have concerns about issues after 30 January 2024 she would need to raise this with the Council first. The Ombudsman may then investigate such matters under a new complaint.

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How I considered this complaint

9. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and regulations

EHC Plans

11. 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. 
12. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
13. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Education Otherwise Than At School (EOTAS)

14. 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 is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
17. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
18. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled
19. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

20. On 14 January 2022, the Council issued a Final EHC Plan for Mrs X’s child, who I shall refer to as Y. The Council confirmed it would provide the following Section F provision for Y:
    • Education Other Than At School, with the view to Y integrating into a school setting.
    • 1:1 support for all school hours provided by an experienced Teaching Assistant.
    • Annual support from a Speech and Language Therapist in which the therapist will develop a programme of Speech and Language Therapy for Y of which the content and frequency would be decided by the therapist.
    • A paediatric Occupational Therapist to develop a Motor Skills programme requiring 90 minutes of the therapists time each term. Y’s Teaching Assistant would deliver this Motor Skills programme.
    • Six 45-minute sessions of Occupational Therapy each term.
    • The Council to develop a programme of educational provision to provide activities and input outside traditional classroom-based environments. The Council’s multidisciplinary team would decide the level and frequency of this programme.
21. The Council contacted a tutor provider to discuss a package of support for Y. The Council agreed for a tutor to provide education for Y for 10 hours each week.
22. On 7 February 2022, the Council created a draft package of education for Y. This included support from a Specialist Teacher and Teaching Assistant, Speech and Language Therapy, Occupational Therapy and one afternoon per week of hydrotherapy. The Council also said it would provide suitable activities in accordance with outcomes of Y’s EHC Plan as guided by Mrs X.
23. On 28 February 2022, Y’s tutor began to provide tuition for Y. Y’s tutor resigned at the end of the school term.
24. The Occupational Therapist produced the Motor Skills programme for Y. While the Occupational Therapist produced this programme, since Y did not have a Teaching Assistant, this programme was not provided for Y. Y’s Occupational Therapist did however continue to make regular visits to work with Y.
25. On 14 September 2022, Y began receiving tutoring from a new tutor for 10 hours each week.
26. The Speech and Language Therapist completed a home visit in October 2022 to complete the annual review and develop a Speech and Language Therapy programme for Y.
27. On 9 December 2022, Y’s new tutor stopped providing tuition for Y. The tuition provider contacted the Council to let it know. The Council contacted a tuition provider on the same date to try to source new provision for Y followed by another provider later in December 2022.
28. The Speech and Language Therapist completed the annual report for Y on 21 December 2022 and created an action plan for Y.
29. In February 2023, the Council’s Multidisciplinary team created a timetable of activities for Y outside the classroom setting. The Council suggested that Y attends a Farm Provider for three hours each week, Music Therapy for an hour each week and Hydrotherapy/warm pool sessions for three hours each week.
30. On 9 March 2023, the Council found a suitable tutor for Y. The Council asked the tuition provider to contact Mrs X to discuss this tutor. The Council continued to try to source a Teaching Assistant for Y.
31. In May 2023, the tuition provider contacted Mrs X who provided answers to the tuition provider’s questions and advised Y also needed a Teaching Assistant.
32. In July 2023, the Council told Mrs X the tutor had moved on to a new role because it had not got Mrs X’s consent for this tutor. The Council also said it had explored use of a swimming pool for Y but the pool declined due to lack of availability and it was in contact with the Farm Provider to look to provide sessions for Y.
33. On 1 August 2023, Mrs X complained to the Council that it had failed to secure most of Y’s EHC Plan provision since January 2023. Mrs X also complained the Council failed to provide other provisions since September 2022.
34. The Council contacted the tuition provider again and asked it to contact Mrs X to arrange provision for Y.
35. On 22 August 2023, the tuition provider discussed Y’s provision with Mrs X. Mrs X advised she wanted the tuition in place as soon as possible and ideally from the start of the next term on 4 September 2023. Mrs X suggested the Council contact the Social Care Academy to provide a Support Worker for Y who could act to support a teacher, while also completing other functions, while the Council continued to source a teaching assistant.
36. The Council issued its Stage 1 complaint response on 23 August 2023. The Council apologised for not securing provision detailed in the EHC Plan sooner. The Council said it had been trying to secure provision for Y and since it had been trying to do this it would not offer any financial award.
37. On 30 August 2023, the tuition provider confirmed it had a tutor ready for Y. Mrs X agreed to putting this tutor into place and completed and returned the consent forms.
38. Since the tutoring was not put in place on 5 September 2023, Mrs X chased the Council.
39. On 6 September 2023, a Support Worker from the Social Care Academy began to provide 30 hours of support for Y each week.
40. Mrs X sought escalation of her complaint to Stage 2 on 19 September 2023.
41. The Council provided a new Final EHC Plan for Y on 28 September 2023. This EHC Plan contained much of the same provision from the previous EHC Plan in relation to teaching, a Teaching Assistant, Occupational Therapy, Speech and Language Therapy and other educational activities.
42. On 30 November 2023, the Council declined to issue a Stage 2 complaint response as it considered it could not achieve anything further. The Council directed Mrs X to the Local Government and Social Care Ombudsman (the Ombudsman).
43. In January 2024, the Speech and Language Therapist said it would be discharging Y from its service if Mrs X did not make contact for further support.
44. In January 2024, the Occupational Therapist completed their annual report for Y.
45. On 22 January 2024, a new tutor contacted Mrs X to arrange tutoring. This tutoring began with Y from 30 January 2024.

Analysis

46. A council has a duty to provide all educational provision detailed in Section F of a child’s EHC Plan. For Y, this educational provision included education outside a school setting and other provisions including Occupational Therapy and Speech and Language Therapy.
47. The Council’s duty to provide the provision detailed in Section F started from the date the Council produced the Final EHC Plan for Y. This meant the Council needed to provide all Section F provisions from 14 January 2022. Since the educational provision in Section F was consistent into the next EHC Plan produced in September 2023, this duty to provide this provision continued.

Teaching or Tutor

48. Y’s EHC Plan said the Council should provide education for Y otherwise than at school with the view to reintegrating Y into the classroom.
49. Mrs X has not complained about the provision of Y’s tutoring up to December 2022. I have reviewed the tutoring on offer before this date and the Council regularly provided Y with 10 hours of tutoring each week from February 2022 until this ended on 9 December 2022.
50. From 9 December 2022 until 30 January 2024, the Council failed to provide any education for Y through a tutor or classroom setting. The failure to provide any education for Y is both a failure of the Council to meet the provision detailed in Y’s EHC Plan but also a failure to meet its Section 19 duty.
51. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
52. On 9 December 2022, the Council was made aware that Y’s tuition had stopped. The Council would have been aware that Y was not attending school and would not receive education without this tuition from Monday 12 December 2022. As such, the Council was responsible for providing education for Y from the sixth day following this, from Monday 19 December 2022.
53. The Council’s failure to provide education for Y until 30 January 2024 was fault. This fault resulted in Y missing three full terms and four weeks of education. I have addressed the impact this loss of education on Y in paragraphs 70 to 74.

Teaching Assistant

54. The Council has confirmed it failed to secure a Teaching Assistant for Y since the production of the Final EHC Plan for Y on 14 January 2022. The failure to secure a Teaching Assistant meant the Council failed to secure provision detailed in Y’s EHC Plan. This was fault.
55. While the Council failed to secure a Teaching Assistant for Y, from 6 September 2023, it did put in place a Support Worker. The Council did this following a request from Mrs X to contact the Social Care Academy under her suggestion that this Support Worker could help support a teacher while the Council continued to source a teaching assistant. From 6 September 2023 to 30 January 2024, Y received input from a Support Worker for 30hours each week. Provision of this Support Worker mitigated, but did not remove, the impact of the Council’s failure to secure a Teaching Assistant.
56. This fault has impacted on Y’s education, which I will address in paragraphs 70 to 74.
57. This fault has also impacted on Y’s access to other provisions as the EHC Plan specified the Teaching Assistant would deliver Y’s Occupational Therapy Motor Skills programme. Without access to a Teaching Assistant, Y could not access the Motor Skills programme developed for them. This meant Y lost out on further provision; this was fault.
58. It is of note that within Y’s EHC Plan the Council has said that it should provide Y with a Teaching Assistant for “all school hours”. This specification of “all school hours” is vague and can be interpreted either as a full school day or all the school hours Y receives through their tutor. An EHC Plan should be specific about what provision a council will put in place considering the individual circumstances of the child. The Council should provide training to staff about the importance of ensuring any provisions detailed in Section F of a child's EHC Plan is quantifiable and specific.

Occupational Therapy

59. The EHC Plan specified the Council would provide annual support through a paediatric Occupational Therapist who would develop a Motor Skills programme for Y. The Occupational Therapist was also to provide six 45-minute sessions each term directly with Y.
60. The Council has provided evidence it engaged an Occupational Therapist to create the Motor Skills programme, complete annual reviews and provide the six termly sessions of Occupational Therapy input. The Council has met the provision as specified in the EHC Plan directly required from the Occupational Therapist. I do not find fault with the Council.

Speech and Language Therapy

61. The EHC Plan specified the Council would provide annual support from a Speech and Language Therapist and this therapist would develop a programme for Y for expressive language skills.
62. A Speech and Language Therapist completed their annual report of Y in December 2022. The Council failed to provide any Speech and Language Therapy support from 14 January 2022 to December 2022. This is despite the EOTAS programme produced in February 2022 detailing a Speech and Language Therapy programme would be created and provided by a Teaching Assistant. This delay was fault.
63. Following the December 2022 review, the report the Speech and Language Therapist produced specified that all speech and language therapies should be provided by Y’s parents or teachers. Since the Speech and Language Therapist said provision could be provided by Y’s parents, other issues have not prevented provision of the Speech and Language therapy since December 2022.
64. The Speech and Language Therapist contacted Mrs X in January 2024 to request contact if Y needed further services. The Speech and Language Therapist advised it would discharge Y if no contact was made. At this time, the onus was on Mrs X to contact the Speech and Language Therapist to complete the annual review.
65. Overall, the Council has put in place the Section F provision for Y’s Speech and Language therapy since December 2022 and I do not find fault.

Any other measurable provision

66. Y’s EHC Plan stated the Council had a duty to create a plan and timetable of the “level and frequency of activities” Y needed outside traditional classroom based learning. The EHC Plan gave a few examples of potential provisions but the EHC Plan did not place a requirement on the Council to provide these provisions. The requirement from the EHC Plan was to create the plan and timetable. At which point, the Council should provide any provisions detailed under that plan or timetable.
67. The Council took from 14 January 2022 until 7 February 2022 to create a timetable for Y’s provision. This timetable included a Hydrotherapy session each week. The Council failed to provide these hydrotherapy sessions from 7 February 2022 until February 2023; this was fault.
68. The Council created a new timetable in February 2023. On producing the timetable in February 2023, the Council specified that Y should receive three separate weekly provisions.
69. Y was already receiving weekly Music Therapy, and had been doing so since June 2022. I do not find fault with the Council.
70. Y did not receive the Farming Provision or Hydrotherapy/warm pool sessions from February 2023 to 30 January 2024. This meant Y missed an entire year of these provisions. This was fault. I will address the injustice to Y in paragraphs 70 to 74.

Impact on Y

71. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
72. Y did not receive any education from 14 January 2022 until 28 February 2022 despite educational provision detailed in Y’s EHC Plan. Y received education from 28 February 2022 to 9 December 2022. While Y received tuition over this two and a half-term period, Y did not receive any input from a Teaching Assistant. Y’s EHC Plan made it clear that suitable education for Y included access to a Teaching Assistant for all educational hours. This Teaching Assistant was also to provide Y with the Occupational Therapy Motor Skills programme. Y also did not receive any of the hydrotherapy sessions from 7 February 2022 to 9 December 2022 despite this being included in Y’s educational programme. And, Y did not receive any input from Speech and Language Therapy until production of the annual report in December 2022. While Y was receiving education during this time, this was not suitable to meet Y’s needs. We recommend the Council pays Mrs X £4,850 the failure to secure suitable education from 14 January 2022 until 9 December 2022.
73. Y missed three full terms and four weeks of tuition from 19 December 2022 to 30 January 2024, through the fault of the Council. This meant Y went without any education during this time. This included Y’s access to Hydrotherapy sessions and from February 2023 the Farm provider. Given Y’s particular needs and lost provision, the impact on Y would have been greater than on a child who did not need additional educational provision. We recommend the Council pays Mrs X £7,900 for Y’s missed education during this time. This considers the Council’s failure to secure a Teaching Assistant who would support the educational provision and provide the Motor Skills programme during this time.
74. The Ombudsman can also address distress and frustration caused in this matter. The Council should apologise to Mrs X and pay her £300 for distress, frustration and lost opportunity caused by its delays and handling of this matter.

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Agreed action

75. Within one month of the Ombudsman’s final decision the Council should:
    • Provide a payment to Mrs X totalling £12,750 for the failure to provide suitable education for Y from January 2022 to 30 January 2024 2024. This reflects the failure to provide either, or all, tuition, Teaching Assistant support and access to the Motor Skills programme.
    • Provide an apology and payment of £300 to Mrs X for the frustration and distress caused to her through its delays and handling of this matter.
76. Within three months of the Ombudsman’s final decision the Council should:
    • Provide training to staff about the importance of ensuring any provisions detailed in Section F of a child's EHC Plan is quantifiable and specific.
77. The Council should provide us with evidence it has complied with the above actions.

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Final decision

78. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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