Summary: Ms X complained the Council delayed issuing and fulfilling an Education, Health and Care Plan for her son, S, causing him to miss out on his education. It has also caused the family emotional and financial distress. The Council has accepted it is at fault, apologised and offered a financial remedy. The Ombudsman agrees the Council is at fault and considers the proposed remedies are in line with our guidance on remedies.

The complaint

1. Ms X complained the Council delayed issuing and fulfilling an Education, Health and Care (EHC) Plan for her son, S. This has caused S anxiety, isolation and caused him to miss education. It has also caused financial and emotional distress to his parents. The Council apologised and offered a financial remedy. Ms X is unclear how the Council has calculated the award and does not think this is enough. She would like the Council to explain the calculation and increase the award.

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The Ombudsman’s role and powers

2. 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 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)
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)
4. 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

5. I have only investigated the complaint as set out in Ms X’s original complaint dated September 2023. Since this time, Ms X said there has been a further review of the EHC Plan. If she is not satisfied with the Councils actions, she will need to raise this with the Council to consider first, before bringing it to the attention of the Ombudsman. For clarity we agreed this current investigation would end when S left primary school (July 2023). Any complaints after this date regarding secondary school would be part of a separate complaint.

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How I considered this complaint

6. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Children and Families Act 2014, The Education Act 1996, the Special Education Needs Regulations 2014, ‘Special educational needs and disability code of practice: 0 to 25 years (‘the Code’), and statutory guidance ‘Alternative Provision’ January 2013.
7. Ms X and the Council 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

Relevant legislation

8. 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.
9. 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.
10. 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)

What happened

11. I have summarised below the key events; this is not intended to be a detailed account.
12. S is a young person attending mainstream school.
13. In February 2022, the Council refused to issue S with an EHC Plan. It said the school could meet his needs. Ms X appealed. In the middle of August 2022, the appeal panel agreed S needed an EHC Plan.
14. In October 2022, the Council became aware S was not attending school full time due to anxiety.
15. From November 2022, Ms X arranged a private tutor for S. Ms X paid for three sessions a week.
16. In February 2023, the Council issued the EHC Plan.
17. In March 2023, the Council Inclusion Officer noted S’s school attendance was 46%. The Inclusion Service suggested actions the school could take to help.

The complaint

18. In the middle of September 2023, Ms X complained to the Council via her representative. They complained about delay issuing the EHC Plan, providing support and failing to provide alternative provision. They asked for an apology, compensation for missed provision and expenses to repaid.
19. The Council issued a stage one response in October 2023 and a stage two response in the middle of February 2024.
20. The stage two response said there was evidence of fault. It said there was delay issuing S’s final EHC Plan. It also explained the Council’s section 19 duties to provide alternative education were activated when it became aware S was not accessing full time education in October 2022. It accepted the Council should have done more to ensure suitable education provision was available for S once the section 19 duties were engaged. It said due to staff shortages, this did not happen in a timely manner.
21. The complaint response recommended the following:
• Financial remedy in recognition of the time and trouble taken in chasing the matter with the Council.
• Financial remedy to recognise the frustration and uncertainty caused by the lack of communication.
• Financial remedy in recognition of the missed education from November 2022 to June 2023. It noted the lack of evidence ensuring S received the equivalent to full time education under its section 19 duties.
22. A few days later, the Council issued an apology letter to Ms X and offered the following to Ms X:
• Financial remedy of £300 in recognition of the time and trouble taken in chasing the matter with the Council.
• Financial remedy of £150 in recognition of the frustration and uncertainty caused by the Council’s poor communication.
• Financial remedy of £3,750 in recognition of S’s missed education opportunity from November 2022 to June 2023, the period set out in the recommendations.
23. In the middle of March 2024, Ms X complained to the Ombudsman. She said the financial remedy offered for missed education only covered the period starting in November 2022, she said S’s attendance declined earlier than this. Ms X did not consider the symbolic payments for time and trouble, frustration and uncertainty were enough or that this describes the level of distress over a significant time.

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Analysis

Alternative provision

24. The Council has a duty to provide alternative provision where a child is out of school. In its complaint response, the Council said it should have considered its section 19 duties to ensure appropriate education provision was available to S but due to staff shortages, this did not happen in a timely manner. It accepted it was at fault and offered a financial remedy for missed provision.
25. The Council’s financial remedy for missed provision covered the period November 2022 to June 2023. In my enquiries, I asked the Council to explain why the financial remedy covered this period. The Council said it became aware S was not in school in October 2022. The Ombudsman usually expects a Council to provide alternative provision within 15 school days of a child being out of school. The period covered by the payment for missed education started roughly within 15 school days of the Council being aware S was out of school. The Council was correct to offer a financial remedy starting in November 2022 for missed educational provision.
26. I asked the Council to clarify why the financial remedy in recognition of missed education ended in June 2023, as set out in its complaint response. The Council said it should have been until the end of the summer term.
27. The Council explained it calculated the remedy to cover missed provision for two and a half terms, I understand this to be the full spring and summer term and half the autumn term. This matches with the time the Council was aware S was not at school full time. I understand why Ms X is confused by how the Council calculated the remedy as it offered a remedy in months in the complaint response but calculated it in school terms. I am satisfied the remedy covers the period the Council was aware S was out of school, although it could have explained this better in its correspondence.
28. Alternative provision should be full-time, or as much as the child’s health condition will allow. The Ombudsman’s guidance on remedies for missed education suggests a financial remedy of between £900 and £2,400 per term. It considers factors such as the child’s special educational needs, any educational provision made during the time and whether extra provision can remedy some of the loss. The Council offered £1,500 per term. I asked the Council how it calculated the financial remedy; it said education opportunities were made available to S. Even though he did not attend school full time, he did attend some days. As he received some education, it is suitable the Council used the sliding scale and offered a figure within the lower end of the Ombudsman’s guidance. The Council’s offer of a remedy is within the Ombudsman’s guidance of remedies.

Time and trouble remedy

29. In response to my enquiries, the Council said it accepted it was at fault and recognised the time and trouble the family went through to make the complaint. It also accepted it delayed issuing the stage one response.
30. The Ombudsman guidance on remedies accepts there is inevitably time and trouble involved in bringing a complaint. We usually only recommend a remedy for time and trouble for injustice over what is usual in complaint handling. For example, if the council repeatedly refused to consider a complaint, the complainant had to ask a councillor or an MP to help before it would consider the complaint, or the council did not consider the recommendations of an independent investigation into the complaint. The Ombudsman’s recommended remedy payment for time and trouble is likely to be up to £500. The Council’s offer of a remedy is within the Ombudsman’s guidance of remedies.

Distress remedy

31. In response to my enquiries, the Council said it apologised in recognition of the frustration and uncertainty caused by the Council’s poor communication and explained delays were caused by staff shortages. It considered the offer of £150 was an appropriate sum.
32. The Ombudsman’s guidance on remedies suggests a remedy payment for distress of up to £500. Distress can include uncertainty, stress, inconvenience and frustration. When determining a distress remedy payment, the Ombudsman considers the severity of the distress, the length of time involved, and the number of people affected. The Council’s offer of a remedy is within the Ombudsman’s guidance of remedies.

Action already proposed by the Council

33. The Council has already admitted it is at fault, apologised and offered a financial remedy to Ms X. I find this a satisfactory solution.

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Agreed action

34. Within four weeks of my final decision, the Council agreed to pay Ms X the remedies as it set out in its complaint response.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have completed my investigation. The Council has accepted it is at fault, apologised and offered a financial remedy. The Ombudsman agrees the Council is at fault and considers the proposed remedies are in line with our guidance on remedies.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman