Summary: Mrs X complained that the Council failed to make education provision for her son Y when he was unable to attend school. The Council was at fault as it delayed in making education provision for Y and did not ensure he received some provision in his Education, Health and Care Plan. As a result, Y missed education provision for two terms and the fault caused distress to Mrs X. The Council has agreed to remedy this injustice by apologising to Mrs X and Y, making a symbolic payment of £1800 to Y and a symbolic payment of £300 to Mrs X.

The complaint

1. Mrs X complains that the Council failed to make suitable provision for her son, Y, when he was unable to attend school from September 2023. Mrs X considers that as a result, Y was unable to continue with two of his A Levels

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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 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)
3. 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.
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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What I have and have not investigated

6. I have investigated the Council’s actions from September 2023 to July 2024.

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How I considered this complaint

7. I considered evidence provided by Mrs X and Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my 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.
10. The EHC Plan is set out in sections which includes section F. This is the special educational provision needed by the child or the young person
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 Education, Health and Care (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 following is a summary of the key events relevant to my consideration of the complaint. It does not include everything that happened.
13. At the time of the complaint Mrs X’s son, Y, was in post 16 education and due to sit his A levels in 2024. Y has special educational needs and an EHC Plan.
14. In September 2023, Mrs X sent an email to an officer who was dealing with Y’s EHC Plan. She said Y was struggling to attend school as he did not have a safe space within the school as specified by section F of his EHC Plan. Mrs X asked how the Council planned to ensure Y could fully access his education. Mrs X sent further emails to the Council raising concerns about Y not attending school and not having a safe space. There is no evidence to show how the Council responded to Mrs X's concerns.
15. Mrs X continued to raise concerns about Y not attending school and how this would impact on his ability to take his A levels. The Council’s records show that the Council and school discussed Y’s attendance in mid January 2024. Emails between the school and Council show the school told the Council that Y had not attended since late October 2023. The school said it suggested an online school for Y but Mrs X and Y had not confirmed if they wished to proceed with that option. The Council offered the use of a robot to the school which would live stream Y’s lessons to him at home.
16. In late January 2024, the Council held a meeting with Mrs X and the school to discuss ways of re-engaging Y with education. The record of the meeting notes that Y would now only study one A level. The record also notes that the school would trial the robot with Y to help him return to school. It would also explore dual registration with an online school together with Y’s school. This would enable him to study with the online school but take his exams at the school. The Council would explore if there were any other students with EHC Plans who were studying remotely to see if they could be joined together for social support.
17. In response to emails from Mrs X in March 2023, the Council advised Mrs X that it was waiting for her to confirm if Y wanted the online school provision or the robot. The Council also said it was waiting for the school to confirm if it could dual register Y with the online school. The Council asked Mrs X if Y wanted the robot to be set up in the meantime.
18. Mrs X told the Council that it had not offered the online school as it had not been quality assured or approved by the Council as alternative provision. Mrs X said she had not received any communication from the Council since the meeting in late January 2024. Mrs X also said it was Y did not think he would feel comfortable with the robot and it was too late to offer this as Y was due to sit his exams in May 2024. The Council clarified that it had asked the school to investigate dual registration with the online school as it was not a Council approved provider. It also asked the school to provide more information to Mrs X about the robot for Y to decide if he wanted to try it.
19. In late April 2024, the school arranged for Y to try the robot. Two days later the school sent an email to Mrs X to explain the robot could not be used as it was not working.
20. The school arranged for a trial of the online school in mid May 2024 for Y. Mrs X asked for the trial to be delayed as Y was taking his exams during the week the trial was scheduled.
21. The Council then started to look for tuition providers to provide education to Y from September 2024.
22. Mrs X complained to the Council about the lack of education provision made for Y from September 2023. Mrs X raised that Y’s EHC Plan, which was issued in late January 2024, said that he should have increased provision outside of school when he could not attend. Mrs X said the robot was offered too late and did not work. She also said the offer of the online school was too late as Y was sitting his exams. Mrs X told the Council that as a result Y withdrew from two of his A levels.
23. The Council responded at stage one of its two stage complaints procedure. It said officers were working with Mrs X to explore alternative education for Y. It also said it was in Y’s best interests to delay the trial of the online school.
24. Mrs X requested her complaint be escalated to stage two as she considered the Council had not properly addressed her concerns about Y being out of school from September 2023 and the delay in offering the online school. The Council said that Y did not initially access school due to transport issues and the Council had left the dual registration with the online school to Y’s school to implement. The Council said it would not pursue Mrs X’s complaint to stage two as it could not address the matter any further.
25. In response to my enquires, the Council has said:

• Y’s safe space at the school was not available due to building works at the school and this impacted on Y being able to attend school. It therefore agreed that the school would explore dual registration with the online school to enable Y to take his exam at the school he knew.
• It had not been able to identify other local schools who had students studying online so it could facilitate social interaction for Y.
• Transport issues had initially stopped Y attending school so the Council paid mileage fees to Mrs X so she could transport Y to and from school.
• It could not offer a robot to live stream Y’s lessons before January 2024 as it only started to trial them at that time.
• The Council works with families and young people outside of compulsory school age to see if there is any support which could maintain the school placement. If this is not suitable then it will arrange a bespoke package of education from its approved providers.

26. Mrs X said the robot and online school was offered and implemented too late to be of benefit to Y. This meant he had to withdraw from two of his A levels.

Analysis

27. Mrs X raised her concerns about Y not attending and not having a safe space at the school in September and October 2023. There is no evidence to show the Council took any action on these emails. The Council has a duty to ensure the provision set out in Section F of an EHC Plan is delivered so it should have ensured some arrangements were made for the school to provide a safe space for Y. So, the Council’s failure to ensure the school made the provision was fault.
28. In response to my enquiries, the Council said its usual approach is to work with families and young people to see if there is any support which could maintain the placement. There is no evidence to show the Council considered what support it could provide to maintain Y’s placement when Mrs X notified the Council in September and October 2023 that he was struggling to attend. The Council did not take any action and consider what support could be offered until January 2024. The Council therefore delayed in considering what support it could provide to maintain Y’s placement. This was fault.
29. The Council’s records of the meeting with Mrs X in late January 2024 show the school would trial the use of the robot and explore dual registration for Y with the online school. These actions were time critical as Y was due to sit his exams in summer 2024. But the robot was not offered to Y until April 2024 and it then did not work. The online school was not offered until mid May 2024. The delay also meant the Council did not make the provision set out in section F of Y’s EHC Plan for him to receive provision when he was unable to attend school. This was fault.
30. I am mindful the school was organising the robot and online school. But the Council is responsible for ensuring the provision set out in the EHC Plan is made. So, the delay in making the provision was fault by the Council.

Complaint

31. The Council’s handling of Mrs X’s complaint was poor and amounts to fault. The Council’s stage one response to Mrs X’s complaint was inadequate. It did not address Mrs X’s complaint that Y had not received any support since September 2023 when he struggled to attend school. It did not address her complaint about a delay in making the agreed provision after January 2024. It failed to identify the Council had not made provision set out in Section F of Y’s EHC Plan for a safe space and additional provision. The Council could have addressed these points when Mrs X’s escalated her complaint to stage two but declined to do so. This calls into question the Council’s decision that it could not achieve anything for Mrs X by investigating her complaint at stage two.

Injustice

32. I cannot know, even on balance, if the Council’s delay in providing support and the provision his EHC Plan caused Y to withdraw from two of his A-Levels. There are a number of factors which could have caused Y to be unable to sit two of his A levels. But the delays in providing support and access to a safe space and additional provision meant Y missed out support from October 2023 to May 2024 which amounts to approximately two school terms. This will have disadvantaged Y and made it much harder for him to take his exams. The Council should remedy this injustice by making a symbolic payment of £900 per term for two terms to Y. The recommended payment is at the lower end of what we generally recommend for the loss of provision. But this is a proportionate remedy as I cannot know if Y could have taken all of his A levels but for the fault.
33. The delays and poor complaint handling also caused distress to Mrs X. The Council should make a symbolic payment of £300 to Mrs X to acknowledge the distress caused.

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Action

34. The Council will:
1. Send a written apology to Mrs X and Y to acknowledge the delay in making education provision and provision in Y’s Education, Health and Care Plan caused Y to miss education provision for approximately two terms and to acknowledge the distress caused to Mrs X by the delay and poor complaint handling. 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 £1800 to Y (or to Mrs X on behalf of Y) to acknowledge the loss of education provision for approximately two terms.
3. Make a symbolic payment of £300 to Mrs X to acknowledge the distress caused to her.
4. By training or other means, remind officers of the Council’s approach to supporting young people outside compulsory school age to maintain their placement in the event they are struggling to attend. The Council should also remind officers that they should promptly explore what support should be offered when they are first notified of a young person struggling to attend their placement. This is to ensure the delays identified in this complaint do not recur.
5. By training or other means, remind officers responsible for dealing with requests for stage two complaints that they should be satisfied the stage one response has adequately addressed the complaint when considering whether to investigate the complaint at stage two.
35. The Council should take the action at a) to c) within one month and the action at d) and 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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Investigator's decision on behalf of the Ombudsman