Summary: Ms M complains about her son B’s education. The Council failed to arrange home invigilation for B’s GCSEs as required by his Education, Health and Care (EHC) Plan, and he had to change subjects late in the day due to an examination clash that should have been foreseen. We cannot evaluate the impact on B’s results, but we have recommended a symbolic remedy the acknowledge the stress these faults caused.

The complaint

1. Ms M complains about her son B’s education. In particular, Ms M complains:
1. the Council failed to make the necessary arrangements for B to take his GCSE exams at home, so he had to travel to an examination centre;
2. a tutor failed to ensure B had the portfolio of work he needed for his photography GCSE;
3. tutors prepared B for two science subjects, but he could only take exams for one subject because of a clash in the examination timetable; and
4. a tutor ‘vaped’ during a lesson. Ms M considers this a safeguarding concern and is dissatisfied with the Council’s response.

Back to top

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 injustice 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)

Back to top

How I considered this complaint

4. I considered information provided by Ms M and the Council. I invited Ms M and the Council to comment on my draft decision.

Back to top

What I found

5. Ms M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. The Plan says the Council will arrange education for B at home. An agency provided tuition on behalf of the Council.
6. Ms M complains a tutor failed to prepare B for his photography GCSE, a subject he wanted to study at college; he was unable to take examinations in the science subjects he prepared for due to a timetable clash; and he did not perform as well as he could because he had to travel to an examination centre.
7. Ms M complained to the Council and the tutor agency.
8. The Council responded at both stages of its complaints procedure.
9. The Council upheld Ms M’s complaint about its failure to arrange home invigilation for B’s examinations. The Council explained it had asked the tutor agency to make the arrangements on its behalf, but despite its best efforts the agency had been unable to. The Council said it believed every reasonable effort had been made to find a solution. The Council apologised.
10. The Council did not uphold Ms M’s complaint the tutor failed to prepare B for his photography GCSE. The Council said the tutor was experienced in preparing pupils for the examination, and it was clear B was not ready. The Council noted B had received only a small number of hours of photography tuition, having chosen to devote his energy to other subjects instead. The Council acknowledged that while the tutor was not a qualified teacher, he had the necessary qualifications to provide tuition for the photography course.
11. The Council did not uphold Ms M’s complaint about its response to her report the tutor vaped during a lesson. The Council explained it had referred the matter to the Local Authority Designated Officer (LADO) and the agency had followed its own disciplinary procedures.
12. The Council upheld Ms M’s complaint the agency had prepared B for examinations which clashed, but noted a solution had been agreed which still enabled B to take two science subjects.
13. Unhappy with the Council’s response, Ms M complained to us.
14. B was unable to take up his preferred college place in September as he did not meet the entry requirements. Ms M wants the Council to apologise and pay compensation. Ms M says she went to considerable time and trouble trying to secure appropriate support for B, and this impacted on her earnings.

Consideration

Complaint a) home invigilation

15. Ms M complained the Council failed to make the necessary arrangements for B to take his GCSE exams at home so he had to travel to an examination centre.
16. Once the Council has issued an Education, Health and Care (EHC) Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
17. The Courts have made it clear the Council’s duty to arrange provision is owed personally to the child and cannot be delegated. (R v London Borough of Harrow ex parte M [1997] ELR 62)
18. Section F an EHC Plan sets out the special educational provision the Council must arrange.
19. Section F of B’s EHC Plan said he would have a home invigilator for his examinations.
20. B was unable to take his examinations at home and had to travel to an examination centre. This is fault for which the Council is ultimately responsible.
21. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
22. Ms M described the impact on B of having to take his exams at an examination centre. In addition to the unnecessary stress, at an already stressful time, Ms M believes the Council’s mistakes had an impact on B’s performance in his exams and, by extension, his plans to return to college. Ms M said B was willing to speak to me about his experiences.
23. I do not underestimate the additional stress caused to B. I am grateful for B’s offer to speak to me, but I do not consider it necessary.
24. I do not have the expertise (or authority) to say how the Council’s mistakes may have had an impact on his exam results. I understand exam boards have procedures to give special consideration to students who believe they have been disadvantaged during an examination which may go some way to addressing Ms M’s concerns.
25. Ms M said she spent a great deal of time on the matter, including accompanying B to the examination centre. Ms M is self-employed and this had an impact on her income.
26. I will recommend a symbolic payment for the stress caused to B and Ms M, and for the additional inconvenience Ms M experienced. However, we do not consider claims for compensation, and we do not make awards for lost earnings.
27. My recommendations are at the end of this statement.

Complaint b) photography GCSE

28. Ms M complained a tutor failed to ensure B had the portfolio of work he needed for his photography GCSE.
29. Whether the tutor failed to prepare B for his photography GCSE or whether B was not ready for the examination is not a judgement I can make. It is beyond my authority and expertise.
30. Section F of B’s Plan says he will be taught by qualified teachers. The photography tutor, although a qualified photographer, was not a qualified teacher. In this respect, the Council had not arranged the provision exactly as specified in the Plan.
31. However, I cannot say it caused an injustice for which I should recommend a remedy.

Complaint c) examination timetable clash

32. Ms M complained tutors prepared B for two science subjects, but he could only take exams for one subject because of a clash in the examination timetable.
33. Section F of the Plan said B would study maths, English, science, art and design, photography and ICT. It sets out how the amount of tuition for each subject could vary to reflect his ability to participate.
34. The Plan does not specify which science subjects he will study, or which examinations he will take. Nevertheless, since the Council was responsible for arranging his tuition, it is ultimately responsible for the mistakes the agency made selecting B’s subjects which resulted in the examination timetable clash.
35. I understand B was able to take two science subjects, just not the subjects he initially prepared for. I do not underestimate the disruption and stress this caused, but I cannot evaluate the impact on B’s exam results.
36. My recommendations at the end of this statement reflect the additional unnecessary stress.

Complaint d) the vaping incident

37. The Council referred the vaping incident to the LADO, the officer responsible for the management and oversight of allegations and concerns about people who work with children. The tutor agency took appropriate action. There is no fault in the Council’s response.

Additional comments from Ms M

38. I was pleased to have an opportunity to discuss the complaint with Ms M. Ms M wanted me to include more detail in this statement. The following paragraphs are based on her suggestions.
39. B required special educational provision following a diagnosis of ME (chronic fatigue syndrome).
40. Ms M says it took considerable effort, including an appeal to the SEND Tribunal, to secure home invigilation in B’s EHC Plan. Ms M believes the Council could have done more to enable B to take his exams closer to home when home invigilation proved impossible. She says her dealings with the Council impacted her work and mental health. She says B was very stressed and believes this impacted his performance.
41. Ms M says that on the way to one exam, they were caught in rush hour traffic which caused additional stress and had a negative impact on B.
42. Ms M says B worked extremely hard for his exams and feels the faults in his special educational provision had a negative impact on his performance and future opportunities. She believes the Council should pay considerably more compensation than I recommended.
43. Ms M says the Council did not explain to her how it dealt with her safeguarding concerns about the vaping incident at the time.
44. I considered all of Ms M’s comments before making a final decision.

Back to top

Agreed action

45. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and B, we may recommend the Council makes a symbolic payment.
46. Fault by the Council meant B was unable to take his examinations at home and had to travel to an examination centre. He also had to change science subjects due to a clash in the examination timetable that should have been foreseen.
47. I recommended the Council:
• apologises to Ms M and B for the faults I have identified; and
• offers a symbolic payment of £300 to Ms M and B to acknowledge the additional stress and inconvenience caused.
48. The Council should complete these actions within six weeks of my final decision.
49. The Council should send us evidence it has done so.
50. The Council accepted my recommendations.

Back to top

Final decision

51. I have ended my investigation as the Council accepted my recommendations.
52. While I note Ms M’s disappointment with the symbolic payment the Council has agreed to make, there is no formula I can use to calculate the impact of the Council’s mistakes. The payment reflects our guidance.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman