Summary: Mrs X complains the Council delayed in putting in place an education other than at school package for her daughter, Y. The Council is at fault as it delayed in delivering elements of Y’s education other than at school package and did not arrange face to face tuition for Y as agreed. These faults caused Y to miss some education provision for three terms and caused distress to her and Mrs X. The Council has agreed to remedy this injustice by making a symbolic payment of £1800 to Y and a symbolic payment of £500 to Mrs X.

The complaint

1. Mrs X complains that the Council delayed in putting in place an education other than at school package for her daughter, Y. It also failed to put in face to face tuition when her daughter could not engage with online tuition. As a result, Y missed education provision which caused significant distress to her and her family.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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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How I considered this complaint

8. I have:

• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

9. 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. 
10. 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)  

What I have and have not investigated

11. The Council referred to the education other than at school (EOTAS) package in section F of Y’s EHC Plan so Mrs X would have had the right to appeal the suitability of the package to the SEND Tribunal. However, I have exercised discretion to investigate how the Council considered Mrs X’s concerns about the suitability of the online tuition element of the EOTAS package. I consider it is not reasonable to have expected Mrs X to appeal as section F did not include the specific provision in the EOTAS package so Mrs X was not sufficiently aware of what she could appeal.

What happened

12. The following is a summary of the key events relevant to my consideration of the complaint. It does not include everything that happened.
13. Mrs X’s daughter, Y, has autism spectrum condition (ASC) and struggled to attend college due to severe anxiety.
14. In late summer 2023, the Council agreed to provide an EOTAS package for Y. The package included advocacy, tuition for Maths and English to be delivered online in a group setting and tuition to enable Y to take a science GCSE. It also included animal-based activities. An email from an officer to Mrs X refers to the Council waiting for clearance to commission the provider for the science GCSE.
15. Mrs X also asked if the tuition could be delivered face to face as Y would struggle and she would benefit from the social interaction that such tuition would provide. The Council advised Mrs X that it could only offer online tuition.
16. The Council issued a final EHC Plan for Y in mid September 2023. In section F it stated that Y would receive a EOTAS package for 2023/24.
17. The Council’s records show that Mrs X contacted the Council in September 2023 to chase Y’s EOTAS package as the new academic year had started. The Council’s records show it agreed the advocacy support in mid September. I understand the maths and English tuition started in early October.
18. In mid October, a social worker sent an email to the Council advising that Y was struggling with maths and English tuition online and she was keen to start her science GCSE. The Council agreed to provide two hours per week of face to face tuition. The Council did not make this provision. Mrs X has also said the Council did not tell her it had agreed to provide face to face tuition.
19. Mrs X then chased the Council regarding the science GCSE. In her email to the Council she said she was concerned that Y would not have enough time to complete it. I understand the Council intended to provide a direct payment to Mrs X to enable her to purchase the course.
20. The Council’s records show Mrs X notified it in November that she had paid for the science GCSE. She said time was ticking on and Y needed to start the GCSE to have a chance of taking it in summer 2024. Mrs X asked the Council to reimburse the fees as she’d had to borrow the money to pay for the course.
21. Mrs X chased the Council for the reimbursement of the fees on several occasions. The Council advised Mrs X that it had to consider her request through its internal decision making processes. Mrs X responded to the Council to explain the science GCSE was agreed as part of Y’s EOTAS package and should have been in place for September.
22. Mrs X made a complaint to the Council that it had not adequately fulfilled Y’s EOTAS provision that should have been in place by the beginning of September. The Council upheld Mrs X’s complaint. It said there had been delays in communicating with her and in confirming some of the EOTAS package. The Council apologised to Mrs X. It also said that it had reimbursed the fees for Y’s science GCSE and that it had arranged an annual review for Y in the new year.
23. Mrs X requested that her complaint be escalated to stage 2 of the Council’s complaint procedure. She said that the Council had agreed to look into face to face tuition for Y for English and maths but had not agreed a timescale for the new provision. She said the uncertainty was causing significant anxiety to Y which affected her ability to access her current provision. Mrs X said she wanted an agreed timeline to ensure Y had sufficient time to sit her exams in the summer. Mrs X also said she had not received the reimbursement for Y’s science GCSE.
24. The Council did not uphold Mrs X’s complaint as it considered Y had access to online provision which fulfilled the provision required. It also noted that it had reimbursed Mrs X for the science GCSE course.
25. In response to my enquiries, the Council has said:

• The delay in arranging Y’s science GCSE was due to a direct payment not being made to Mrs X.
• It had tried to arrange face to face provision for Y but wanted group tuition. The Council’s provider could not offer this so the Council offered online tuition. The Council then looked at one to one face to face tuition for Y when she did not want online provision.

26. Mrs X has said Y sat her maths and English exams but did so without tuition as she’d been unable to access the online tuition which disadvantaged her and affected her results. Y did not sit her science GCSE as she was unable to complete it due to the delay in commissioning the course. Mrs X said the delays in making the provision and in reimbursing the payment have caused significant uncertainty and distress to Y and to her.

Analysis

27. There is no evidence to show how the Council considered Mrs X’s concerns that online provision for maths and English would not meet Y’s needs. The evidence shows the Council told Mrs X that its provider could only offer online provision. I therefore cannot be satisfied, even on balance, that the Council gave appropriate consideration to whether the online tuition would meet Y’s needs. This is fault.
28. The Council agreed to provide the EOTAS package for Y in August 2023 and it included the EOTAS package in section F of Y’s EHC Plan. The Council should therefore have ensured the provision was in place when the final EHC Plan was issued in mid September 2023 to comply with its duty to secure the provision set out in Y’s EHC Plan. The Council did not put in place the online tuition until early October 2023. It still had not commissioned Y’s science GCSE in mid November 2023 when Mrs X paid for the course. I therefore consider the Council delayed in providing these elements of the EOTAS package and this is fault.
29. The Council agreed to provide face to face tuition for Y in late October 2023 when she was unable to engage with the online provision. There is no evidence to show the Council took sufficient action to commission face to face tuition for Y. The Council’s response to Mrs X’s stage two complaint said the online provision fulfilled the requirements of the EOTAS package. But the Council agreed to provide face to face tuition so, on balance, I consider it must have accepted the online provision did not meet Y’s needs. So, the failure to provide face to face tuition for Y is fault.
30. The Council also took approximately three months to reimburse Mrs X for the cost of the science GCSE. This is excessive, particularly as the Council had agreed to provide the GCSE as part of the EOTAS provision but had not done so. I therefore consider the time taken to reimburse Mrs X is fault.

Injustice

31. I cannot know, on balance, if the Council would have included face to face tuition for Y before late October 2023 if it had considered Mrs X’s concerns about whether online tuition would meet Y’s needs. I note a social worker provided additional information about Y not being able to access the online tuition in October 2023. But the failure to consider Mrs X’s concerns will have caused distress and uncertainty to her.
32. The Council’s delays in providing the maths and English tuition and the failure to provide the face to face tuition meant Y missed this provision for three terms. I cannot know, on balance, if the fault affected Y’s results as this could be due to many factors. But the fault will have significantly disadvantaged Y when sitting her exams. I cannot know, on balance, if the delay in providing the direct payment for Y’s GCSE science prevented her from engaging with the course. But the delay will have caused distress and uncertainty to her.
33. Our guidance on remedies recommends a symbolic payment of £900 to £2400 per term for the loss of educational provision to acknowledge the impact of that loss. Y received some of her EOTAS package so it is not proportionate to recommended a payment in this range. I therefore consider it is appropriate and proportionate to recommend the Council makes a symbolic payment of £500 per term for the three terms Y did not receive sufficient tuition for maths and English. This is a total payment of £1500.
34. The Council should also make a payment of £300 to Y to acknowledge the distress and uncertainty caused to her by the delay in making the direct payment for the science GCSE.
35. The delays by the Council in providing the tuition, direct payment for the science GCSE, failure to provide face to face tuition as agreed and delays in reimbursing the cost of the science GCSE also caused distress to Mrs X. The Council should remedy this injustice by making a symbolic payment of £500 to Mrs X.

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Agreed action

36. That the Council will:
1. Send a written apology to Mrs X and Y for the loss of education provision, disadvantage to Y and the distress caused to them by the faults identified above. 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.
2. Make a symbolic payment of £1500 to Mrs X for Y to acknowledge the impact of three terms of missed education provision.
3. Make a symbolic payment of £300 to Mrs X for Y to acknowledge the distress and uncertainty caused to Y by the delay in paying a direct payment for Y’s science GCSE.
4. Make a symbolic payment of £500 to Mrs X to acknowledge the distress caused to her.
5. Review its procedures to ensure the provision set out in section F is in place from the date the final EHC Plan is issued. This is to ensure the Council complies with its duty to secure the provision set out in an EHC Plan.
37. The Council should take the action at a) to d) within one month and the action at e) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. Fault causing injustice to Mrs X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman