Summary: Summary: Mrs X complains on behalf of her son, Y, the Council has failed to provide suitable educational provision. Mrs X says this has caused her and her family a great deal of distress. We have found fault in the actions of the Council for failing to ensure provision was in place for Y. We recommend the Council issues and apology and pays a financial payment to Mrs X.

The complaint

1. Mrs X complains on behalf of her son, Y, the Council has failed to provide suitable educational provision.
2. Mrs X says this has caused her and her family a great deal of distress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I have considered the information Mrs X has provided and have discussed the complaint with her over the telephone.
7. I have considered the information provided by the Council in response to enquiries made.
8. Both Mrs X and the Council were invited to provide their comments on my draft decision. Any comments received have been reviewed before a final decision was issued.

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What I found

9. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.

Duty to secure EHC plan provision

11. 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 happened

12. The Council emailed Mrs X in late September 2023 to say it had put tuition in place via the Education Access Team at Y’s school. The Council then increased the number of hours in November 2023.
13. Mrs X contacted the Council in December 2023 and said that Y was experiencing problems with the tuition.
14. The tutor was cancelled in mid-December 2023 and Mrs X says no work was provided for Y.
15. The Council told Mrs X it had sourced a potential new tutor in early January 2024 but unfortunately the tutor later did not start their contract.
16. The Council issued Y’s EHC Plan in mid-January 2024 and said he should receive up to 15 hours per week of one-to-one home tutoring from a consistent and trusted tutor.
17. Mrs X emailed the Council in late January 2024 to ask what was happening with tuition for Y.
18. The Council responded and said it was waiting for a response from a suitable tutor.
19. Mrs X raised a complaint with the Council in early February 2024 due to Y not receiving any tuition.
20. The Council contacted Mrs X in early March 2024 in response to her complaint and said it had awarded a new contract to provide Y with tuition.
21. Mrs X raised concerns about the tuition in March, April and May 2024 and said Y was not attending the tuition.
22. The Council say the tuition contract for the provider stopped in mid-May 2024.
23. I understand the Council awarded a new tuition contract in July 2024.

Analysis

24. There is a gap where no provision is in place for Y between mid-December 2023 and the end of February 2024. This is fault.
25. The Council were aware in April and May 2024 there was an issue with the tuition as Mrs X was reporting there were problems with it. I have not been able to see what action the Council took to address issues with the provision before the end of May 2024.
26. There is a further gap between May 2024 and July 2024 where the Council has failed to have any provision in place for Y. This again is fault.
27. Y has missed provision for just over half a term between the end of December 2023 and the end of February 2024. Y has then received no provision for around a further half a term between May 2024 and July 2024.
28. Mrs X and her family have been caused distress and frustration by the Council failing to put in place the provision Y was entitled to.
29. I am aware the Council is taking steps to provide training to officers about its duties about commissioning alternative education and as such I have not recommended any service improvements.

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Agreed action

30. Within one month of a final decision the Council should:

• Issue an apology to Mrs X for the faults identified.
• Pay Mrs X £2,000 to reflect the lack of special educational provision for around two half terms.
• Pay Mrs X £250 to recognise the distress and frustration caused to her.

31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have found fault in the actions of the Council for failing to ensure provision was in place for Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman