Summary: Mr X complained the Council failed to ensure his son, Y received an education or the specialist provision in his Education, Health and Care (EHC) Plan since October 2023 while he was out of school. The Council was at fault as it failed to ensure Y received a suitable education in line with his EHC Plan between October 2023 and July 2024. The Council agreed to make payments to recognise the impact this had on Y’s education and for the distress and uncertainty caused to Mr X.

The complaint

1. Mr X complained the Council failed to ensure his son, Y received a suitable education in line with his Education, Health and Care (EHC) Plan for over seven years. He said Y had been out of school for long periods and currently does not have a placement to attend and is without any formal education.
2. Mr X said Y had missed education which affected his academic and social development which caused distress, uncertainty and financial loss.

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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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What I have and have not investigated

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
7. Mr X complained to us in September 2024. I have decided to investigate Y’s education and any loss of provision from September 2023 until September 2024. Mr X claims Y has missed education for several years however it was reasonable for him to complain to both the Council and us much earlier about events prior to September 2023, and there is no good reason to investigate those matters now.

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How I considered this complaint

8. I considered evidence provided by Mr X and Council as well as relevant law, policy and guidance.
9. Mr X 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

Relevant law and guidance

EHC Plans

10. 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.
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).

Section 19 Duty

12. 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.

What happened

13. Mr X has a son, Y who has special educational needs and an EHC Plan. In 2023 the Council issued and amended EHC Plan for Y naming an independent special residential school (School A) in the Plan. The special school was however over 200 miles from Y’s home. The EHC Plan outlined the specialist provision Y was entitled to which included:
• Specialist professionals experienced in working with children with high level needs
• Regular small group and play activities
• Visual learning aids in class
• Ongoing support from Speech and Language services
• Specialist curriculum
• Continued support from health professionals including a dietician and Occupational Therapist.
14. In September 2024 a special school nearer the family home, School B said it could meet Y’s needs and offered him a conditional place based on what was in Y’s EHC Plan. Mr X said therefore he removed Y from School A just before the October 2023 half term so he could start attending School B.
15. The Council said there was a transition meeting between School A and School B to discuss Y. In this meeting School A disclosed the nature of Y’s needs and his behaviour which resulted in School B withdrawing its offer ultimately deciding it could not meet Y’s needs. This left Y without an educational placement to attend.
16. In January 2024 the Council commissioned at tuition company to provide 15 hours a week of tuition for Y. Mr X said however that these sessions were often cancelled, tutors did not turn up or when they did the sessions were cut short. The Council has not provided any evidence to support that Y received consistent tutoring as arranged.
17. The Council consulted with various schools for Y all of which said they could not meet needs so Y remained out of school for the remainder of the academic year.
18. Mr X complained to the Council in April 2024 about a general lack of support towards Y’s education for the last seven years. The Council responded at stage one of its complaints procedure in May 2024. It said since Y stopped attending School A that it had consulted lots of placements which did not offer Y a place. It apologised for the delay in finding Y a new school.
19. Mr X escalated his complaint to stage two of the complaints procedure. He complained about the placement at School B being withdrawn and said Y had not received adequate education since then. He said Y received around 3-4 hours a week from the tuition company with no specialist input. Mr X said Y being without a placement was causing significant distress to the family and impacting on his ability to work.
20. The Council responded at stage two of the complaints procedure in August 2024. It outlined the 15 hours of weekly tuition it had commissioned and said it was actively trying to find a new specialist placement for Y. It apologised for the delay in finding a new school. It also accepted Y was without education between October and December 2023 and offered £1000 to acknowledge this.
21. Mr X remained unhappy and complained to us in September 2024.
22. Since September 2024 the Council has carried out an annual review, sought a new assessment from an Educational Psychologist and continued looking for a new placement for Y. Although there is likely continuing injustice for Y from September 2024 onwards, this period has not yet been raised as a complaint with the Council. It is open for Mr X to make a new complaint if he has concerns from September 2024 onwards.

My findings

23. Although not through Council fault, it was aware from October 2023 that Y was without formal education or a school placement when School B withdrew its offer of a place for Y. At this point the Council had both a Section 19 duty and duty to ensure Y received the specialist provision in his Plan. The Council has already accepted Y did not receive any education between October and December 2023 which is fault.
24. Although the Council commissioned tuition for Y from January 2024 onwards, on balance this was not delivered consistently and did not meet the specialist provision outlined in Y’s EHC Plan. There is no evidence of oversight from the Council of the tuition and no evidence any other specialist provision was offered or arranged. All of this is fault.
25. Y did not receive any of the specialist provision in his Plan between October 2023 and July 2024 while he was without a school placement and received only limited tuition. This impacted on Y’s educational and social development during this period and caused uncertainty, distress and disruption to Mr X and the rest of the family. The Council has offered £1000 to recognise Y’s loss of education from October to December 2023, however this is insufficient and so I have made a recommendation below to remedy the injustice caused in this case.
26. We have made recent service improvement recommendations following other similar investigations with the Council including:
• Staff training to ensure relevant officers are aware of the Council’s duties regarding EHC Plans generally.
• Reminding relevant officers that the Council has a duty to secure the specialist provision in an EHC Plan, not just tuition when it has accepted an alternative provision duty for a child with an EHC Plan not attending school.
27. Given the above I have not made further service improvement recommendations as we will monitor compliance of the above through our casework.

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Action

28. Within one month of the final decision the Council agreed to:
1. Apologise to Mr X and pay him £250 to recognise the distress and uncertainty caused to him when it failed to provide Y with a suitable education or the provision in his EHC Plan between October 2023 and July 2024 while he was out of school. We publish 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.
2. Pay Mr X £5000 to recognise Y’s loss of education and the specialist provision in his EHC Plan between October 2023 and July 2024 (approximately 2.5 terms).
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman