Summary: Miss C complained that, after her son’s laptop broke, the Council refused to fund another one, despite the fact he did not have any other way to receive his online tutoring. The Council did not respond to her contacts and delayed arranging a school placement. We uphold the complaint, due to the Council not responding to Miss C’s contacts and delaying its consultation with schools. Miss C and her son experienced avoidable distress and her son missed education. The Council has agreed to our recommendations to remedy this injustice and to carry out a review.

The complaint

1. The complainant (Miss C), complains:

• when her son’s (D) online home tutoring started, they used his own laptop. After this broke, Miss C says she did not have the funds to replace or fix it. She told the Council’s SEN Team, asking for help to access another device. The Council delayed responding by three weeks; she had to copy more senior staff into the emails to get a response. But she did not receive an update, so had to take a chance in letting her son use her own laptop;
• there was a constant turnover of caseworkers and, after a caseworker left, they received no further updates for several months;
• when the caseworker did respond, she was not aware Miss C had been contacting the Council about D’s tutoring having stopped due to the broken device;
• a Council panel said it would arrange a school placement for the following school year. The Council did not do this and did not update her about this;
• D had no education from May to September 2024.

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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. 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)
4. 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

5. I considered evidence provided by Miss C and the Council as well as relevant law, policy and guidance.
6. Miss C and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative action

EHC Plans

7. 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 Tribunal or the council can do this.
8. 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)  
9. 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. 

Alternative provision

10. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
11. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

What happened

12. The information below is a summary of relevant events, and does not include every everything that happened during this period.
13. D is a secondary aged child with special educational needs (SEN). He has had an EHC Plan in the time before the events set out in this statement.
14. In early 2023 D started home tutoring. The Council agreed to fund a package of education other than at school (EOTAS); of online one-to-one tutoring of 20 hours a week. The Council says it provided this education under its Section 19 duties (see paragraph 10).
15. In November 2023 a Council SEN Panel agreed to aim for D’s return to a formal school setting in the following September. The Council amended D’s EHC Plan to reflect that he was receiving EOTAS. It issued the final Plan in December 2023.
16. In April and May 2024 Miss C complained that D did not have a caseworker, he was out of school and wanted a school place. The Council’s June response advised it had consulted with several special schools. And it “remained confident that we can secure an appropriate setting for [D] for September 2024”. It partially upheld the complaint because it had not found a school placement.
17. The day after the complaint response, Miss C emailed D’s SEN caseworker to advise D’s laptop had broken, so he could not access his online tutoring. Miss C noted she had already spoken to the caseworker about the issue. She could not afford to replace the laptop, so asked for urgent contact regarding this.
18. At the end of June, the Council’s panel considered Miss C’s request for the Council to provide a new laptop. It refused the request. Its note says: “SEN will not provide funds for laptop”. A Council officer advised Miss C by email of the panel’s decision. The officer advised she would speak to D’s caseworker about other ways to help, given the panel had refused to fund the laptop.
19. D’s tutor had been asking Miss C about the laptop, so he could plan the rest of the academic year. On receiving the email about the panel’s decision, Miss C contacted the tutor to advise him to take D off his rota for the rest of the academic year. She copied the Council’s caseworker officer into this email. She noted she awaited the caseworker’s suggestions about how D would manage to have tutoring.
20. In early September Miss C chased a response from the Council. She contacted it again in October. She also contacted the Ombudsman.
21. In mid-December 2024 Miss C chased the Council again about who D’s caseworker was. She noted she had not heard from the Council since June.
22. In early January 2024 a Council officer contacted Miss C. She advised:

“It is regrettable that I have not been able to respond to your email until now, but I would like to assure you that I am here to support and help in finding [D] a suitable placement to meet his needs.

Our records show that [D] is currently in receipt of 20 hours of tuition … yet from your email, I gather that this is no longer the case?

For me to be able to help move things forward for [D], I feel it would be helpful for us to hold a review meeting at your earliest convenience.”

23. Miss C contacted the Ombudsman in October 2024. The Council’s response to my enquiries advised:
• it did not consider it necessary for it to provide laptops to children receiving EOTAS. Its expectation was that secondary school aged children would have access at home to basic IT equipment, to support their educational needs and learning;
• by that time D was again receiving home tuition and his tutor advised this was working well for him.

Was there fault by the Council?

24. The Council’s decision to not fund a laptop is one it was entitled to make and so not something the Ombudsman can criticise.
25. However, that still left the Council with a duty to D for him to receive his alternative education, and the contents of his EHC Plan. That this was an issue was shown by Miss C’s contacts about the laptop. This was implicitly acknowledged by the Council officer who advised Miss C at the end of June that D’s caseworker would be in touch to discuss alternatives.
26. The Council should have had sufficient oversight of D’s education to enable it to work with Miss C to, at the least, suggest measures to overcome the barrier to D receiving education. But, after the end of June, Miss C received no further contact from the Council about the issue until January 2025. To have not contacted Miss C was fault.
27. The Council also has no records of its consulting with schools during the period. And in its June complaint response it had already accepted a delay in finding D a placement. That delay was fault.

Did the fault cause an injustice?

28. On the balance of probabilities, it is likely that, but for the delay in consulting with school, the Council would have found a school for D to attend from September 2024. That means there is an injustice to D of missed provision for the autumn term in 2024. Although D did receive his home-tuition during this term, he missed out on the advantages of being in school. I am not making any finding beyond that term, as that time post-dates Miss C’s complaint to the Ombudsman.
29. D also did not receive any education in the last part of the 2024 summer term. Miss first contacted the Council about this in June, so there is some uncertainty about whether anything more could have been done for the rest of the summer term.
30. Miss C was caused some avoidable distress by the Council’s delay.

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Agreed Action

31. I recommended that, within a month of my final decision, the Council take the following action.
• Apologise to Miss C and D. 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.
• Pay £450 for the uncertainty caused at the end of the 2024 summer term by the Council not contacting Miss C after she advised it D did not have any way to receive his tutoring. Miss C should use this for D’s educational benefit as she sees fit.
• Pay £1750 for D’s loss of the chance of a school placement in the autumn term of 2024. Miss C should use this for D’s educational benefit as she sees fit.
• Pay £300 in recognition of Miss C’s avoidable stress and frustration caused by the lack of contact from the Council.
32. I also recommended the Council review the faults found in this statement. And within three months of my final decision, produce recommendations for how it can avoid a situation in the future where consultations with educational institutions are delayed and contacts from parents go unanswered. These recommendations should be considered by an officer with sufficient seniority to implement any changes recommended.
33. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Final decision

34. I find fault causing injustice. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman