Summary: the Council failed to put in place suitable education for Mrs B’s daughter when she could not attend school, failed to put in place all the provision in her education, health and care plan and failed to respond to Mrs B’s communications. An apology, payment to Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• failed to provide suitable education to her daughter when she could not attend school between October 2021 and September 2023;
• failed to put in place all the provision in her education, health and care plan (EHC Plan);
• refused to pay the costs of an educational psychology report she commissioned when the EHC Plan is based on her report rather than the one the Council commissioned;
• failed to respond to her communications;
• delayed completing an EHC needs assessment;
• failed to request the additional reports she asked for in the EHC needs assessment or cover the cost of those private reports.
2. Mrs B says her daughter missed out on education for more than 18 months and she had to give up work to support her due to failures by the Council.

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The Ombudsman’s role and powers

3. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. A child or young person with special educational needs may have an 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 council can do this.
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)
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 the first four bullet points in paragraph 1. I have not investigated Mrs B’s concerns about the delay completing the EHC needs assessment or the failure to request the reports Mrs B asked for. I explain my reasons for that at the end of this statement.

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Mrs B and the organisation 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

What should have happened

12. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
13. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs. It should be full-time unless, in the interests of the child, part-time education is considered more suitable. Government guidance states part-time one-to-one tuition can count as full-time because it is more intensive.
14. The special educational needs code of practice (code of practice) says when an EHC Plan is maintained for a child or young person the local authority must secure the special educational provision specified in the plan.

What happened

15. Mrs B’s daughter has special educational needs. The Council agreed to carry out an EHC needs assessment in July 2021.
16. In October 2021 Mrs B’s daughter stopped attending school due to health reasons. The school allocated to Mrs B’s daughter completed a referral to the Council’s health related education team on 5 November. Mrs B’s daughter went into hospital and was discharged in December 2021.
17. In December 2021 the Council agreed to issue an EHC Plan following an EHC needs assessment.
18. On 1 February 2022 the Council issued a final EHC Plan. Mrs B appealed.
19. The Council set up health related education sessions for Mrs B’s daughter from June 2022. The Council then agreed education other than at school in August 2022 and issued a tender to set up the alternative provision.
20. From 9 December Mrs B’s daughter began receiving five hours provision per week in Maths and English with the aim to add double science in the New Year to enable her to achieve five GCSEs. The Council says that provision increased in January 2023.
21. In February 2023 the tribunal upheld the appeal. The Council issued a final EHC Plan on 2 May.
22. In May 2023 the Council commissioned equine therapy and agreed provision for horse riding in accordance with the EHC Plan. Those began in June and July 2023.
23. In June 2023 the Council agreed to increase the tutor hours for Mrs B’s daughter to 15 hours per week. That began in September 2023.
24. In September 2023 the Council became aware the speech and language therapy provider could not put in place provision for Mrs B’s daughter until March 2024.
25. Following a complaint from Mrs B the Council accepted it had delayed putting in place special educational provision and education. The Council offered Mrs B £300 per month for the missing education between October 2021 and November 2023, totalling £6,300. The Council also offered Mrs B a payment of £500 for time and trouble and distress.

Analysis

26. I am exercising the Ombudsman’s discretion to investigate what happened in terms of the education provided to Mrs B’s daughter from October 2021 onwards. That is because I understand the Council accepted Mrs B’s daughter could not attend school and therefore needed alternative provision and this was an ongoing failure.
27. Mrs B says the Council failed to put in place suitable education for her daughter when she could not attend school due to medical issues. Mrs B says her daughter received no education between October 2021 and June 2022, three hours per week between June and December 2022, five hours per week between December 2022 and March 2023 and 7.5 hours per week between March 2023 and September 2023.
28. The Council accepts it failed to put in place any education for Mrs B’s daughter until June 2022 and then only part-time education until September 2023 when it put in place the 15 hours set out in her EHC Plan. The Council has offered £300 per month to reflect the missed education between October 2021 and November 2023.
29. When a parent has lodged an appeal which includes concerns about the provision named in section I of the EHC Plan the Ombudsman cannot consider any missed education during the period the appeal is ongoing. What that means is the Ombudsman cannot make a recommendation about any failure to put in place provision between February 2022 and February 2023.
30. The Council has offered £300 per month for the missed education between October 2021 and June 2022 when Mrs B’s daughter was not accessing any education. As I said, I cannot comment on any failure to put in place provision between February 2022 and February 2023. I can, however, consider an appropriate remedy for the period October 2021 up until the Council issued an EHC Plan in February 2022. When the Ombudsman recommends a financial remedy for missed education we normally recommend an amount between £900 per term and £2,400 per term. £2,400 is where a child received no education at all, had an EHC Plan and was in a significant year such as a GCSE year.
31. In this case Mrs B’s daughter did not receive any education between October 2021 and February 2022 but did not have an EHC Plan and was not in a significant year. I take into account though the health difficulties Mrs B’s daughter experienced towards the end of 2021 which resulted in her going into hospital. In those circumstances I consider it unlikely Mrs B’s daughter would have been able to access a significant amount of education, if any, between October 2021 and when the Council issued the EHC Plan in February 2022. In those circumstances I consider the Council’s offer of £300 per month satisfactory to reflect the missed education between those dates as that equates to around £900 per term.
32. For the period from February 2023 until September 2023 I note Mrs B’s daughter received 7.5 hours per week when she should have received 15 hours per week as this is what the Council had agreed. In those circumstances I would have recommended the Council make a payment of £900 per term for the missed education and special educational needs provision, taking into account the fact Mrs B’s daughter could not access full-time education and also taking into account the provision put in place. That is in line with what the Council has offered for that period and I therefore do not make any further recommendation for remedy for the missed education between February 2023 and September 2023. I recommended the Council remind officers dealing with children unable to attend school due to medical reasons of the need to consider putting in place alternative provision if it is accepted the child cannot return to school for any length of time. The Council has agreed to my recommendation.
33. Mrs B says the Council delayed putting in place the special educational needs provision in her daughter’s EHC Plan. The Council accepts there were delays putting in place speech and language therapy, occupational therapy, training for staff working with Mrs B’s daughter, six weekly multidisciplinary review meetings, horse riding and equine therapy. The Council says those delays were caused by the lack of available therapists and the tribunal process.
34. The Council is required to put in place provision in an EHC Plan when a final EHC Plan is issued. The Council issued the final EHC Plan in February 2022. However, Mrs B appealed, including some elements of the provision. I cannot criticise the Council for failing to put in place provision in February 2022 that could have been affected by the appeal. I therefore do not criticise the Council for any failure to put in place speech and language therapy, occupational therapy, training for staff or the multidisciplinary review meetings. That is because I am satisfied those elements of the EHC Plan were tied up with the appeal and therefore the Council did not have any responsibility to put those elements in place until May 2023.
35. However, I do not consider the equine therapy and horse riding were affected by the appeal. There is therefore no reason why the Council could not have put those elements into place in February 2022. I am satisfied though Mrs B’s daughter did not miss out on horse riding because Mrs B paid for twice weekly sessions for her daughter. However, Mrs B has suffered an injustice as she had to spend her own money on that provision. To remedy that I recommended the Council refund Mrs B the costs of horse riding she incurred between February 2022 and when the Council put the provision in place in June 2023. The Council has agreed to my recommendation.
36. It is also clear the Council has still not put in place the speech and language therapy which affects training available for staff working with Mrs B’s daughter. I understand that is because the provider the Council contracts with does not have any availability for a therapist to work with Mrs B’s daughter at the moment.
37. I recognise that delay is outside the Council’s control. However, the Council has a duty to ensure the provision in a child’s EHC Plan is in place from the point at which a final EHC Plan is issued. Failure to put that provision in place from May 2023 is therefore fault. I consider the Council’s offer for the period up until November 2023 a satisfactory remedy for the missing education and missing special educational needs provision. However, I recommended the Council pay Mrs B £200 per month for the missing provision from December 2023 until it is put into place. I further recommended the Council liaise with the speech and language therapy provider it has identified to see whether it has a date to start speech and language therapy for Mrs B’s daughter. If it does not I recommended the Council research whether there is an alternative speech and language therapy provider which could put provision in place quicker. I also recommended the Council remind officers dealing with EHC Plans of the need to ensure any provision not affected by an appeal is put into place from the date of the final EHC Plan. The Council has agreed to my recommendations.
38. Mrs B says the Council refused to pay the costs of the educational psychology report she commissioned. Mrs B says that is unreasonable as the EHC Plan the Council produced is based on her educational psychology report rather than the one the Council commissioned. I have considered both the educational psychology report Mrs B commissioned as well as the educational psychology report the Council commissioned and compared those to the EHC Plan the Council issued in February 2022. I am satisfied the EHC Plan produced in February 2022 was based on the Council’s educational psychology report rather than the one Mrs B commissioned. In those circumstances I cannot recommend the Council refund the cost of the educational psychology report Mrs B commissioned.
39. In reaching that view I recognise the EHC Plan the Council produced in May 2023 is significantly different from the EHC Plan 2022. However, those changes happened following an appeal to tribunal. The Ombudsman does not have jurisdiction to consider any matters which relate to the appeal.
40. The Council accepts it did not always respond to Mrs B’s communications and has apologised for that and offered her £500 to reflect her distress and the time and trouble she had to go to. I consider that a satisfactory remedy for this part of the complaint.

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Agreed action

41. Within one month of my decision I recommend the Council:
• apologise to Mrs B for the distress she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B the amount the Council has already offered her to reflect the missing education for her daughter and the time and trouble payment it offered, totalling £6,800;
• pay Mrs B £200 per month from December 2023 until the speech and language therapy is in place;
• pay Mrs B an amount to reflect the costs she incurred in arranging horse riding for her daughter between February 2022 and June 2023;
• discuss with the speech and language therapy provider whether a date can be provided for therapy to start. If it cannot the Council should consider looking for alternative providers;
• send a reminder to officers dealing with EHC Plans to remind them of the need to ensure any provision not affected by an appeal is put into place from the date of the final EHC Plan;
• send a reminder to officers dealing with children unable to access education due to medical issues about the need to consider putting in place alternative provision if it is accepted a child cannot return to school.

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Final decision

42. I have completed my investigation and uphold the complaint.

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Parts of the complaint that I did not investigate

43. I have not exercised the Ombudsman’s discretion to investigate Mrs B’s concerns about the delay completing the EHC needs assessment. That is because that was completed more than 12 months ago. I see no reason why Mrs B could not have complained within 12 months.
44. I have not investigated Mrs B’s concerns about the Council’s failure to secure additional reports for the EHC needs assessment or its refusal to reimburse the cost of those private reports. That is because I am satisfied those issues relate to the quality of the EHC Plan produced by the Council which was the subject of an appeal. I therefore consider those matters to be outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman