Summary: Ms X complained about the Council’s handling of her son’s education. The Council has already accepted fault for failing to provide all the provision set out in his Education, Health and Care Plan since October 2023. The Council has agreed to apologise and make payment to acknowledge the injustice its faults caused Ms X and her son.

The complaint

1. Ms X complains the Council significantly delayed arranging funding for her son (Y’s) Education otherwise than at School (EOTAS) package. As a result, her son has missed a full academic year of education and SEN provision. Ms X says the Council accepted fault in considering her complaint, but no remedy payment was offered.
2. Ms X said, as a result, Y experienced distress and had a loss of education. Ms X also said she also experienced distress and had time and trouble to support Y and bring their concerns to the Council’s attention.

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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 considered the information provided by Ms X and discussed the complaint with her. I made enquiries of the Council and considered its response.
7. Ms X and the Council had the opportunity to comment on my draft decision. I considered any comments before reaching a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plan

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. 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 Special Educational Needs and Disability (SEND) Tribunal (the Tribunal) or the council can do this.

Provision

9. 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) 
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

11. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school (EOTAS). A council can only agree to EOTAS if it is satisfied it would be inappropriate for the provision to be made in a school.

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What happened

12. Below is a brief chronology of key events. It is not meant to show everything that happened.
13. Ms X son, Y has special educational needs which impacts on his ability to cope in a school setting.
14. At the end of October 2023, the Council issued a final EHC Plan for Y, which set out his special educational needs and the provision he should receive through an EOTAS package.
15. Y’s EHC Plan set out his special educational needs provision including one to one mentoring; equine therapy; tutoring; educational day’s out and sports and leisure activity.
16. In April 2024, Ms X complained to the Council. saying it had failed to finalise the EOTAS package for Y and therefore had not provided him with suitable provision for seven months. Ms X said she was seeking a financial remedy, a suitable EOTAS package funded by a personal budget and direct payments. Ms X also complained about poor communication.
17. On 17 May, the Council responded to Ms X’s complaint at stage one of its complaints procedure. It explained the delays were due to additional information required by its finance team and a lack of action by Y’s caseworker. The Council said a new caseworker had been allocated and acknowledged that it had failed to communicate this to Ms X. The Council said the new caseworker would contact Ms X to progress the EOTAS package. The Council upheld Ms X’s complaint and said:

“…the actions from the SEND team have not been completed in a timely manner and this has had a significant impact on [Y’s] education. I would like to sincerely apologise that this has happened, and I am able to recognise the negative impact this has had on [Y] and the financial hardship it has caused the family.”

18. On 17 June, Ms X asked for her complaint to be escalated to stage two.
19. On 20 June, the Council sent Ms X details of the confirmed EOTAS package for Y. This covered the period from 3 June 2024 to July 2024. The Council also backdated the package to cover the period from 26 October 2023, when the final EHC Plan was issued.
20. The Council responded to Ms X’s stage two complaint. It apologised for the repeated delays and loss of provision due to delays in getting the EOTAS package agreed. The Council acknowledged that its communication with Ms X had not been to an acceptable standard. It explained that timescales were a problem due to staffing and workload issues.
21. In August, the Council agreed to pay Ms X £3000 for the academic year when no provision was in place for Y. Ms X accepted this payment.

The Council’s response to our enquiries

22. The Council confirmed that since September 2024, Y has been receiving weekly sessions for mentoring; tutoring; therapeutic support; educational visit and payment for educational resources.
23. The Council acknowledged the frustration and uncertainty the family experienced and said:

“The service would like the opportunity of offer a formal apology to the family and acknowledges that a financial remedy may be required as a result that [Y] had a loss of educational provision for the academic year 2023 to 2024”.

Analysis

24. The Council has accepted it was at fault for failing to provide all the provision set out in Y’s EHC Plan for a full academic year. I agree with the Council. It was responsible for ensuring Y received the provision set out in his EHC Plan. It’s failure to do so was fault.
25. I am satisfied this caused Y distress and a loss of educational provision. Y was without education during this period which negatively affected his learning development. I am also satisfied this caused Ms X distress, due to poor communication and she had time and trouble to pursue her concerns with the Council.
26. I have considered the payment of £3000 made by the Council. While this appears to be a genuine attempt to acknowledge the injustice its faults caused, I am not satisfied it goes far enough to do so. The Council has not explained how it calculated this figure and said the payment was for the resources/provision that was paid for by family when no EOTAS package was in place. On balance, I do not consider the payment covered any loss of educational provision as set out in Y’s EHC Plan for the academic year 2023 to 2024.
27. The Council’s complaint response to Ms X did not consider a financial remedy for the injustice caused to Ms X or Y, despite Ms X’s request for it to do so. This caused Ms X frustration and uncertainty about whether the Council had properly considered her complaint.
28. I have therefore made my own recommendations, in line with the Ombudsman’s Guidance on Remedies, for the injustice the Council’s faults caused. I have not made any service improvement recommendations as previous investigations by the Ombudsman have addressed similar issues and made appropriate recommendations accordingly.

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Agreed action

29. Within one month of this decision the Council will:
1. write to Ms X and apologise for the injustice caused to her and Y as a result of the Council’s faults;
2. pay Ms X £7,200, to use as she sees fit for the benefit of Y, to acknowledge the loss of educational provision Y had for the academic year 2023 to 2024. This is based on £2,400 per term; and
3. make a symbolic payment of £500 to Ms X to acknowledge the additional pressures, distress, and uncertainty she experienced as a result of the Council’s failings.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have found fault by the Council causing an injustice to Ms X and Y. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman