Summary: Mrs X complained her son, A, was not provided with a suitable education and therapies during the period he was unable to attend school She also complained the Council, took too long to respond to her complaint. We found the Council was at fault for the delay, a failure to establish what a suitable education was for A and delay in implementing therapies for him. The Council agreed to apologise and make a payment to Mrs X and A.

The complaint

1. Mrs X complaints that:
• between February 2021 and January 2023 her son, A, did not get the provision named in section F of his EHC Plan;
• the Council failed to secure suitable alternative provision for A after he stopped attending school altogether; and
• the Council was late to reply to the complaint she made about the above concerns.
2. Mrs X says that as a result A’s mental health deteriorated significantly, and he missed out on education and the therapies that he needed.
3. Mrs X would like the Council to apologise, pay A for the education he missed as ensure this does not happen to other families.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
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. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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.
9. 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.
10. 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

11. Mrs X complained to us in February 2024 about events that she was aware of in October 2022. Normally we expect the complainants to come to us within 12 month of realising there was an issue. In this case Mrs X provided me with good reasons for why she did not come to us sooner such us:
• completing the Council’s complaints process first; and
• additional health needs that mean that she needed more time to make a complaint.
12. Because of this I have decided to investigate her complaint from October 2022 onwards.

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How I considered this complaint

13. I considered the information Mrs X sent me, and I have spoken to her about his complaint.
14. I considered the Council response to my enquiries.
15. Mrs X and the Council have 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

Provision from EHC Plan

16. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Alternative Provision of education for children

17. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))
18. Suitable education means efficient education suitable to a child’s age, ability, and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
19. The Council must consider the individual circumstances of each child and be able to demonstrate how it made its decision.
20. The education provided by a council must be full-time unless a council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
21. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
22. 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they can do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
23. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
24. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
25. 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.
26. A compulsory school week in the UK is 32.5hours including breaks.

Council’s complaint procedure

27. The Council’s complaint procedure has two stages. The Council says the service area being complained about will respond to stage one complaints in 10 working days. If the complainant is unhappy with the outcome the Council will review its original response and provide a final answer within 20 working days. Additionally, the Council says that it will keep complainants informed of progress and let them know if there are any delays in the process.

What happened

28. In October 2022 the Council held an annual review meeting of A’s EHC Plan. Mrs X told us there were not Occupational Therapy (OT) or Speech and Language Therapy reports available to inform the review and this prompted her to make a Subject Access Request to A’s school. Mrs X said the school failed to reply to her request and this was when she realised that what she believed was happening was not happening.
29. Mrs X emailed the Council in early December 2022 and told it that A had already missed 15 days of school. She asked the Council for alternative provision for him.
30. In mid-January 2023 Mrs X asked the Council to urgently consult school A to see if it could meet A’s needs.
31. In late January 2023 the Council send an amendment notice to Mrs X based on the information gathered during the annual reviews it held in 2021 and 2022.
32. In early February 2023 the Council agreed to implement eight hours of tutoring to support A while it searched for a new school place for him.
33. The Council issued A’s final amended EHC Plan in early March 2023. Mrs X appealed sections C, B, F, and I to the SEND Tribunal. At that time Mrs X was concerned A was not getting full time education (25h per week). At the end of the month A’s the Council terminated A’s school place at the school he had been on roll with up to this point.
34. In late April 2023 Mrs X complained to the Council. She said that between February 2021 and January 2023 when A was attending his school, he did not get all the provision named in section F of his EHC Plan. Mrs X told the Council that she was only recently aware of this after she made a request for all the information to the school.
35. In mid-May the Council told Mrs X that it has not yet decided about implementing a personalised education for A away from school because the Panel making the decision asked for more information. Six days later the Council told Mrs X that it agreed to put in place provision away from school for A that included educational activities as well as OT and SALT.
36. Mrs X chased the Council for a response to her complaint in mid-July 2023. At this point the Council realised that it had not recorded the complaint she made in April.
37. The Council put in place alternative provision for A in September 2023. At this time the Council also secured some OT for him. Up to this point A was also accessing 8 hours of tuition that the Council put in place for him.
38. In late September 2023 the Council issued its final response to Mrs X’s complaint. It:
• apologised for not recording and responding to her complaint in accordance with its complaints policy;
• said that Mrs X did not raise any concerns about the lack of provision during A’s EHC Plan reviews in November 2021 or October 2022;
• confirmed that this was its final position as the Council did not want to cause any more delay to her complaint.
39. In late October 2023 the SEND Tribunal issued its consent order. The Council issued A’s final amended EHC Plan in late November 2023.
40. Between November 2023 and April 2024, A accessed a tailored to his needs education that was delivered outside of school. Since April 2024 A began attendance school A.
41. Mrs X complained asked the Ombudsman to consider her complaint in February 2024.

Analysis

Provision form section F from October 2022

42. Mrs X said that between February 2021 and January 2023 A’s school did not set up the provision from section F of A’s EHC Plan.
43. We understand that neither Mrs X nor the Council were not aware of this before October 2022. Because of this, we cannot say the Council was at fault for something that it did not know about.
44. However, Mrs X alerted the Council around October 2022 and said that she suspected the school was not completing the provision from A’s EHC Plan.
45. At that point we would expect the Council to check with the school what it had in place and ensure that A had access to the provision from his EHC Plan.
46. The Council’s records do not show what action it took following October 2022 to ensure that A was getting all the provision from section F of his EHC Plan. This is fault.
47. The Council told us that A was on roll with a school that could meet his needs, but A did not want to attend this school. There are no records to suggest if and how the Council considered the suitability of the school, or if the school in fact was providing the OT and SALT as per A’s EHC Plan. This is fault. We expect the Council to keep clear records of how it made its decisions, and what information it considered in the decision-making process.
48. This caused avoidable distress to Mrs X and meant that its likely A missed out on specialist provision that he needed and was entitled to.
49. We recommend the Council should pay Mrs X £300 to recognise the loss of therapies A experienced because of the Council’s inaction after Mrs X reported that his school was not implementing the OT and SALT.
50. The Council agreed a specialist provision that included therapies for A in February and our understanding is this started in September 2023.
51. In 2024 we made various service improvements recommendations that also address the findings of this draft decision. Because of this, I have decided not to make further service improvement but allow the Council the time to implement the changes that it has already committed to this year.

Alternative provision

52. In December 2022 Mrs X told the Council that A had stopped attending school, and she asked the Council for alternative provision for him.
53. The Council’s records show that it had agreed to provide eight hours of tutoring for A which started in March 2023. We consider the Council acted promptly and agreed the tuition within reasonable time from the moment Mrs X told it A was not attending school.
54. However, the Council has no records of how it decided that eight hours of tutoring would be suitable to meet A’s needs. This is fault. We expect the Council to keep clear records of how it made its decisions, and what information it considered in the decision-making process.
55. We cannot say if the Council should have provided more tutoring to A from February 2023. However, the lack of decision-making records about this caused Mrs X and A avoidable frustration and uncertainty at an important time in A’s education.

Complaint handling

56. The Council accepted that it was at fault for not responding to Mrs X’s complaints in line with its complaints policy. It said that part of the reason for the delay was caused by Mrs X’s multiple complaints it was considering. We do not accept this as a suitable explanation for the delay. Regardless of how many complaints Mrs X made, it is likely that had the Council progressed them in line with its policy it would then not have to consider then at the same time.
57. This caused Mrs X avoidable time and trouble in chasing the Council for updates. Additionally, it caused Mrs X avoidable frustration as the Council’s delays meant that was unsure of when it would answer her concerns.
58. Because of this, we recommend the Council pay Mrs X £200 to recognise the avoidable time and trouble its actions caused her.

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Agreed action

59. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X and A for its failure to provide A with the therapies from his EHC Plan between November 2022 and January 2023 and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Mrs X and A £200 each to recognise the avoidable uncertainty the Council’s lack of decision about suitable amount of tutoring for A caused them;
• pay Mrs X, on behalf of A, £600 to recognise the OT and SALT provision that he missed between October 2022 and late 2023;
• pay Mrs X £200 to recognise the avoidable uncertainty and distress the Council’s delay in securing A’s therapies caused to her and A; and
• pay Mrs X £200 to recognise the avoidable time and trouble Mrs X spent chasing the Council to answer her complaints.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. The Council was at fault for not following its complaints procedure, delay in securing the provision from section F of A’s EHC Plan and lack of decision about what would be a suitable amount of tutoring for A. The Council agreed to our recommendations and our investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman