Summary: The Council failed to make the provision set out in a child’s Education Health and Care Plan when his school placement broke down, including speech and language therapy. The Council made some alternative provision in this time, but it did not consider fully whether this was suitable or a full-time provision. The Council has agreed to take action to remedy the injustice to the child and his family.

The complaint

1. Ms B complains that the Council failed to:
• Provide a full-time education for her son, K, in accordance with his Education Health and Care (EHC) Plan, when his school placements broke down;
• Provide Speech and Language Therapy (SALT) in accordance with K’s EHC Plan since April 2022; and
• Keep Ms B informed of its actions.
2. Ms B says that as a result of the Council’s shortcomings she had to leave work. She says she has spent hours contacting the Council for updates. Her and her family have been caused distress, uncertainty and frustration. Her son has missed education and this had led to him being isolated and his mental health deteriorating.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
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)

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What I have and have not investigated

6. I have decided to investigate the Council’s actions from April 2022 to June 2023.
7. 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)
8. K’s school place broke down in 2021. Ms B complained to the Council at that time about this. The Council held an emergency review of K’s EHC Plan and responded to Ms B’s complaint. Ms B did not complain to the next stage of the Council’s complaints process. I have not investigated the Council’s actions from this time.
9. K was suspended from school in April 2022, and then started a new school with a new EHC Plan in September 2022. Ms B complained to the Council and brought her complaint to the Ombudsman in January 2024.
10. I have decided to investigate the Council’s actions from April 2022 to June 2023. This means I am exercising discretion to investigate actions that happened more than 12 months before Ms B came to us. I can see that Ms B was under a lot of pressure over a prolonged period and she was trying to resolve the issues with the Council. K left the school in April 2022 and then started a new school with a new EHC Plan, and so this is a useful starting point for my investigation. My investigation runs until June 2023, when the Council responded to Ms B’s complaint.

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How I considered this complaint

11. I considered the information provided by Ms B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments received before issuing this final decision.
12. 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 found

The law and guidance

Provision under an EHC Plan

13. 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. 
14. 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)  
15. 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. 

Alternative Provision

16. 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.
17. 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)
18. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
19. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

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.

20. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

Personal Budgets

21. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
22. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
23. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
24. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

What happened

25. This is a summary of the key events and not a detailed account of everything that has happened.
26. Ms B’s son, K, has special educational needs and an EHC Plan. The Plan issued in January 2022 included Speech and Language Therapy (SALT) provision. In April 2022, K’s place at his school broke down. K was at risk of permanent exclusion. The school agreed not to exclude K. It would keep him on its roll but it would not allow K to come to the school for lessons as it could not meet his needs.
27. The Council arranged for K to spend one day per week with an alternative education provider. Ms B has explained that this provision was for his social and emotional needs and did not provide an academic education.
28. The Council found another school for K and he started there in September 2022. This school was quite far for K to travel and the Council provided a taxi for K, stipulating that it should be the same driver each journey to meet K’s needs.
29. Between September and December 2022, the Council met with the school and Ms B regularly to discuss how K was getting on. The meeting notes say that the transport is unreliable and is causing K distress as well as putting Ms B to trouble trying to resolve the transport problems at short notice. The school could not provide the 1:1 support that was in K’s plan due to staffing capacity and so K could not access the lessons. The Council arranged to increase the alternative provision but again, this related to K’s emotional needs and was not an academic provision.
30. In January 2023, the school confirmed that this placement had broken down too. It too agreed not to exclude K but support him to a new placement. It could not allow K to come to school however as it could not meet his needs. The Council’s case notes show that it had already requested funding to increase the alternative provision K had to two days per week, and it started to look for additional alternative provision until it could find a suitable school for K. The Council also arranged for an educational psychologist to reassess K.
31. The Council held an emergency review of K’s EHC Plan at the beginning of February 2023. K was receiving two days per week of alternative provision for his emotional needs. The educational psychologist had completed the assessment. The Council decided that K should stay on the school roll until it could find another school. The Council also decided that the SALT assessment should be updated. During this time, Ms B told the Council that she was desperately concerned for K’s mental health which was deteriorating due to his isolation. Ms B made clear that the K’s alternative provision was not enough, and was not an academic education. The Council made four referrals to education providers.
32. From March 2023, K started some more additional provision and so was receiving four days per week with a view to increasing tuition. The Council discussed a personal budget with Ms B. Once the Council received the emergency review paperwork from the school, it issued a notice that it would amend K’s EHC Plan. At the end of March, the Council sent a referral to a therapist for SALT for K. In the meantime, the family’s social worker contacted the Council concerned for K’s wellbeing and the pressure on his parents.
33. In April 2023, the Council arranged for K to visit an alternative education provider. The Council apologised for not contacting Ms B sooner and said this was due to staff sickness. Ms B agreed that the Council should consult some mainstream schools for a place for K. The Council said it would chase the SALT therapist it had contacted. The case notes show that the Council then made referrals to the NHS SALT service and also a private provider. Ms B suggested a further SALT provider.
34. In May, one of the alternative providers that had been working with K ceased business. The provider K had visited in April agreed that it could meet K’s needs for some tuition when it had a space available. The Council also contacted other providers but they either could not meet K's needs, or they did not have spaces available. The Council again discussed a personal budget. In one contact with the Council, Ms B again noted that none of K’s EHC Plan was being implemented. Ms B and K chose a mainstream school, although it said it could not meet K’s needs.
35. In June, the Council issued the final EHC Plan. It named Ms B’s preferred school. This was just over six weeks later than the legal time limit. The Council arranged for the SALT therapist that Ms B had found to start work with K. It was clear that K would not be able to start at the school straightaway and the Council started to work out a plan for K to transition to the school.
36. In July, K started a different type of provision to support his transition to the school. Ms B had paid for a maths tutor leading up to this as she was worried her son was getting behind in core subjects. She asked the Council to pay for the tuition under a personal budget.
37. In September, K was able to start at the new school. The SALT in his EHC Plan was available via the school. Unfortunately, K found it hard to engage in lessons. The Council and the school kept the alternative provision in place alongside some lessons to aid his transition to full time school. In light of these difficulties, the Council held another emergency review of K’s EHC Plan and in February 2024, the Council issued a notice that it did not intend to amend K’s EHC Plan. Ms B has the right to appeal this decision if she does not agree with the named school.
38. During this time, Ms B complained to the Council herself and via her MP. The Council found that its communication with Ms B had been timely and reasonable, and that where there was a gap in communication with Ms B, it explained that this was due to staff illness. The Council said that it had made appropriate referrals to alternative education providers. However, the Council agreed that there were periods when K had been without SALT and without education. The Council offered Ms B £800 in recognition of the impact of this, including that she had funded private tuition for her son.

Analysis

K’s educational provision

39. I can see that it has been difficult for K to find education that meets his needs. The Council has reacted in good time to his school place breaking down in April 2022 and January 2023 by arranging some alternative provision and reviewing the EHC Plan. It also made sure that it supported K’s efforts to reintegrate back into school life at his new schools by making sure he had alternative provision alongside a school place.
40. However, the case notes do not evidence that the Council made sure that K got the provision set out in his EHC Plan, nor that it made sure that he was getting a suitable education.
41. From April to July 2022, the original school agreed to arrange alternative provision and support K to start a new school. K was receiving provision for his emotional regulation (and this was a part of his EHC Plan provision), but the Council has not shown that it considered K’s academic provision despite Ms B regularly raising concerns about this. It may be the Council’s view (in consultation with other professionals) that K would not be able to engage with tuition at that time, but it is not clear that it properly considered this.
42. In September 2022, K was due to start a new school, but the Council’s records say that the school could not implement the EHC Plan due to staffing difficulties. Even if K could attend the school, the 1:1 support set out in his EHC Plan was not available to him. The Council increased the alternative provision in lieu of this, but again, the Council did not make the provision set out in his EHC Plan and cannot show that it properly considered whether the alternative provision was suitable for him, and K was still not receiving a full-time education.
43. K’s new school place broke down in January 2023. The Council maintained the alternative provision at two days per week initially. From mid-March until the end of May, K was receiving four days alternative provision weekly. The Council arranged tutoring via another provider but there was no place available until the beginning of July. The Council’s case notes show that it consulted other providers to increase K’s provision, but none had places available.
44. I appreciate that the Council tried to arrange an education for K. However overall, the Council has failed to make sure K receives the provision set out in his EHC Plan. The Council did arrange alternative provision when he was unable to go to either of the schools in this period, but it has not shown that it properly considered whether the provision was full time, suitable or met K’s needs, particularly his academic needs.
45. This meant that K missed out on the provision he was entitled to under his EHC Plan and under the law relating to alternative provision. The Council’s shortcomings also caused Ms B distress.
46. During this time, the Council mentioned that Ms B might have a personal budget. It is not clear that the Council properly explained how she could apply for this. Ms B paid for a maths tutor in the absence of this kind of education from the Council, and was under the impression that this would be met by the personal budget. It could not be as the Council had not agreed a personal budget at that time.

Speech and Language Therapy

47. SALT was included in K’s EHC Plan from January 2022. The Council says it was available at the first school, but K could not access this from April 2022 as his school placement had broken down. K started a new school in September 2022 but he did not receive SALT there. The Council says this was due to a difficult transition to the new school. K was unable to attend school from January 2023 and SALT was not provided until June 2023. The Council says this was because there was no therapist available. Essentially, SALT was included in K’s EHC Plan from January 2022, but K did not receive this until June 2023.
48. I acknowledge that this period was unstable and the Council was concentrating on reintegrating K into school. However, the SALT was part of the EHC Plan and so should have been available to K. There is no proper consideration on the Council’s files or agreement that SALT will not be delivered to prioritise getting K back into school. This was fault by the Council. K missed out on 1:1 SALT that should have been for at least eight weeks in each of the academic years, and then regular SALT based activities from his teaching staff.

The Council’s communication with Ms B

49. The Council says that a senior officer dealt with this case in view of the difficulties K had experienced, and that the level of communication was higher than it would usually have with parents.
50. I have reviewed the case notes. I can see that there were times when Ms B was chasing the Council for progress on finding K a suitable provision or school, because she did not feel she was being kept up to date, particularly at important times such as the start of a new school year. Other times, the Council’s contact with Ms B was good and it is clear that it sought to work with her to resolve difficulties.

Remedy

51. I have expanded on the Council’s own findings and identified fault and service failure. The Council paid Ms B £800 but this is not in accordance with the Ombudsman’s guidance to their investigators on how to remedy complaints. For this reason, I am recommended a different remedy and the Council agreed to my recommendations.
52. Ms B has described how distressing and disruptive this period has been for the family, and how much being out of school has impacted on her son’s mental health and education. Ms B asked me to increase the recommended payments so that she could use the money for some meaningful services for her son. I have considered Ms B’s request but I did not increase my recommendation. I had taken into account that the Council was working to resolve the situation and was making some provision. The remedy agreed is in line with the Ombudsman’s guidance on remedying injustice.

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Agreed action

53. The Council will within one month of the date of this decision:
• Apologise to Ms B. 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.
• In addition to the amount of £800 that the Council has already paid in recognition of the 18 months in which K had no SALT, it should also pay to Ms B £2,700. This further payment is in recognition of three terms from April 2022 to the end of the school year in 2023, when K did not have the provision set out in his EHC Plan, nor a full-time alternative suitable provision.
• Share this decision with the relevant staff.
54. The Council should provide us with evidence it has complied with the above actions. Ms B can use these payments for the benefit of K as she sees fit.

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Final decision

55. I have completed my investigation. There was fault by the Council causing Ms B and her family injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman