Summary: Ms X complains the Council has failed to provide any provision detailed in Section F of her son Y’s Education, Health and Care Plan, and has missed three opportunities to book his GCSE exams. We find fault with the Council for failing to provide the provision and have recommended a payment for the frustration and distress caused to Ms X and Y.

The complaint

1. Ms X complains the Council has failed to provide any provision detailed in Section F of her son Y’s EHC Plan, and has missed three opportunities to book his GCSE exams.
2. Ms X would like the Council to apologise to Y and start providing the provision as soon as possible.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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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How I considered this complaint

8. I spoke with Ms X and considered the information she provided.
9. I made enquiries with the Council and considered the information it provided.
10. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Plan

12. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
13. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Delivery of Special Educational Provision

14. The council has a duty to secure the specified special educational provision in an EHC plan 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)

EOTAS

15. Education other than at school (EOTAS) is a package of education which is council-funded and is detailed in section F of the EHC Plan.

Service failure

16. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

17. Ms X has a son, Y, who has an EHC Plan which was issued on 16 February 2023 after a Tribunal hearing.
18. Section F of the EHC Plan provided a bespoke EOTAS package for Y which included:
• 1:1 online learning;
• 1 day a week (increasing to 2 days per week) at an alternative education site;
• Distance learning;
• Preparation for Adulthood programme;
• A lead tutor to arrange Y’s GCSE exams including a private room and invigilators;
• 1:1 adult mentor to work with Y throughout the day to help understand social situations. The mentor to have training by a Speech and Language therapist (SaLT).
• 8 x 1hour sessions per term with an Occupational Therapist (OT) and his mentor.
19. Between June and December 2023 the Council contacted five SaLT providers and four OT providers but they did not have the capacity or expertise to deliver the provision specified in the EHC Plan.
20. Ms X emailed the Council in April 2023 saying Y was ready to do his GCSE exams. She asked the Council to arrange this quickly or he would miss the chance to sit them.
21. Ms X said she had called every exam centre in Devon and Somerset and none had a late entry place for Y to sit his GCSE exams in Summer 2023. The cut off date had already passed.
22. She also said the Council had failed to provide the other provision named in the EHC Plan for the last term.
23. In June a new case worker introduced herself to Ms X and asked her to confirm any outstanding issues, which she did.
24. In July the Council told Ms X there were places available for October GCSE exams and sent links so she could register Y.
25. The Council managed to secure a mentor for Y in September 2023, however this did not go ahead at the last minute as the Council wanted to use a different provider.
26. In September the Council told Ms X the exams would have to be booked for Summer term 2024 and said it would arrange them in December.
27. In November the Council secured the distance learning for R’s GCSE in his favourite subject. Ms X worked through the first module with R but was told by the school that he had missed the project over the summer and would not be able to complete the GCSE in one year. Ms X says she had requested this subject since R was in year eight.
28. In December the Council asked Ms X to arrange the exams.
29. In January 2024 Ms X chased this up again and was asked to confirm, again, what exams were needed. Ms X sent all the information which she says was the sixth time she sent it.
30. On 1st February the Council tell Ms X to book the exams. The deadline passes and Ms X asks for a card to pay for the exams which the Council provide but do not put any funds on. In March the Council agree the costs and say it will refund her. Ms X did not pay as she could not afford to and was not sure she would be refunded.
31. Ms X made a formal complaint in March saying she had been asking the Council to arrange for Y’s GCSE exams since February 2023. The Council missed two exam sittings and now likely to miss a third due to its delay. Y has had no Section F provision; no transition to adulthood package, no SaLT or OT, and no activities to strengthen his learning. Y is also still waiting for the laptop and other equipment to be provided.
32. Ms X says this is causing Y distress as he does not know if he will be taking his exams in a few months or not. They have had five different case workers and have had to send the same information to the Council on many occasions.
33. The Council responded in April saying arrangements had now been made for Y’s English and Maths GCSE. It set up extra tuition for the summer term and will be reviewing Y’s EHC Plan to consider the missed provision shortly.

Analysis

34. The Council is responsible for the commissioning and delivery of Section F provision in the EHC Plan (see paragraphs 14 and 18). The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure.
35. The Council failed to provide a mentor to Y, the preparation for adulthood programme, and the OT and SaLT provision specified. This caused frustration and distress to Ms X, and frustration and loss of opportunity to Y.
36. I recommend a payment of £500 per term for this lost provision which is the maximum payment in our Guidance on Remedies.
37. There was much communication between Ms X and the Council, and Ms X had to chase the Council and repeat information which caused her frustration and uncertainty.
38. I understand the Council experienced staffing issues within its SEND team. The evidence shows several caseworkers were involved with Y’s case for short periods. This meant its communication with Ms X was poor and progress was delayed on Y’s case. This is fault.
39. The EHC Plan said the Council would provide a lead tutor to arrange Y’s examinations, but Ms X had to do it herself. Due to the delay of the Council Y could not sit his exams in Summer 2023. This is fault causing distress and frustration to Ms X and to Y.
40. The distance learning was not provided until November, a delay of nine months, and Y could not complete the course that he wanted to do.
41. I have recommended the termly payment at the top end of the scale as it was an important school year for Y for his GCSE exams.
42. The Council only booked Y his exams six weeks before he was due to sit them. It also failed to provide his laptop and other equipment as specified in the EHC Plan. This caused distress and frustration to Ms X and loss of opportunity to Y.

Remedies

43. I am aware we have made service improvements to this Council on similar cases (23006167, 23013461, 23021501, and 24002702) and the Council is carrying out its SEN Transformation Plan. It is clear the Council is experiencing issues which it is addressing. I am satisfied the service improvements agreed on the other complaints also address the issues from this complaint, and the Ombudsman will continue to follow up with the Council on any previously agreed service improvements and we will monitor the impact of these changes through our complaints.
44. I can only recommend a symbolic payment to recognise the injustice caused by the Council’s failings, in line with our guidance on remedies. This says:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss; and
• in addition to educational provision, we recommend additional remedies for loss of SEN support such as Occupational Therapy, or other direct therapies and interventions. The level of financial remedy for this is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child.

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Agreed Action

45. Within one month of the final decision the Council should:
• apologise to Ms X and Y for failing to provide the specialist provision, and for the delay in providing the distance learning and entering Y for his exams. This caused distress, frustration, and uncertainty. We have published guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Ms X £1000 to acknowledge the distress, frustration and inconvenience caused to her by the faults identified above;
• pay Ms X on behalf of Y £1000 for the distress, frustration and loss of opportunity caused because of the faults above; (These are symbolic amounts based on our Guidance on Remedies.)
• pay Ms X on behalf of Y £3600 (£2400 per term x 1.5 terms) for the missed provision of distance learning for his favourite GCSE;
• pay Ms X on behalf of Y £3000 (£500 per term x 6 terms) for the lost provision.
• The total payment to Ms X is £8600.
46. The Council should also ensure the Section F provision is arranged and delivered.
47. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

48. I find fault with the Council for failing to provide the Section F provision in Y’s EHC Plan. I have recommended payments for the frustration and distress caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman