Summary: The Council accepted it failed to provide Miss X’s child, Y, with an education from September 2023 to April 2024, and then failed to attempt to secure alternative provision for Y. This resulted in Y missing two terms of education and caused Miss X distress and frustration. The Council has offered to make a payment to Miss X. I am satisfied with the Council’s proposed remedy.

The complaint

1. Miss X complained the Council failed to provide her child, Y, with an education and the provision in their Education, Health and Care Plan between September 2023 and August 2024. She says this caused her family distress and impacted Y’s education. She wants the Council to apologise and compensate her for the impact of its failings.

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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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What I have and have not investigated

5. We previously issued a decision about Y’s provision from March 2023 to August 2023. I have not investigated events before September 2023 as we have already investigated them.
6. I have investigated from September 2023 to October 2024 when Miss X complained to the Ombudsman again.

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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and the Council have 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

The Law

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. 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. 
10. 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)  
11. 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.

What happened

12. Y has been out of education since December 2022. In September 2023 the Council issued an EHC Plan for Y naming a post-16 college. In April 2024 the Council became aware Y had never started at the college. It tried to arrange a meeting with Miss X in April and May 2024, but she was unable to attend both meetings.
13. In July 2024 Miss X complained to the Council that it had failed to carry out Y’s annual review and was failing to provide Y with an education. The Council met with Miss X in August 2024. Miss X said Y had no educational provision in place, and she would prefer to electively home educate Y. She said Y would refuse to have tutors at home. In its complaint response the Council said it would arrange an annual review and asked Miss X to confirm she wished to electively home educate Y. It told Miss X this meant it would no longer be responsible for securing the provision in Y’s Plan but would support Miss X through the annual review process.
14. An annual review took place on 29 August 2024. The Council issued a notice to amend the EHC Plan on 20 September 2024. It enclosed a draft EHC Plan specifying Y would be electively home educated. In October 2024 the Council chased Miss X for her comments on the draft Plan. Miss X complained to the Ombudsman. She said the Council had failed to provide an education for Y since September 2023. The Council issued Y’s final EHC Plan on 14 November 2024. The Plan specified elective home education.
15. In response to our enquiries the Council accepted that, given Y was not in education, it should have confirmed Y’s attendance at the college in September 2023 and ensured the provision was in place. It accepted Y missed two terms of the provision in their Plan between September 2023 and April 2024. It offered £1,800 a term to recognise the impact of this, a total of £3,600.
16. It also accepted, while Miss X had not engaged with the Council between April and August 2024, it could have done more to communicate with Miss X and try to put alternative provision or tutoring in place. However, the Council said it did not believe this would have been successful due to Y’s refusal to accept home tutoring. It offered Miss X £500 to recognise the distress and frustration caused during this time.

My findings

17. The Council has accepted it should have checked Y’s placement, and provision was in place in September 2023. This was fault. It resulted in Y missing two terms of education. The Council has offered Miss X £3,600 to remedy the impact on Y. This is in line with the Ombudsman’s guidance on remedies. I am satisfied with the Council’s proposed actions.
18. When the Council became aware Y was not attending their named college it tried to arrange an annual review, but accepts it failed to arrange alternative provision for Y. This was fault. The Council has offered Miss X £500 to remedy the frustration and distress caused by Y’s continued lack of provision.
19. The evidence shows Y’s reluctance to engage with alternative provision, with Miss X saying they would refuse tutoring and deciding to electively home educate. On balance, even if the Council had tried to put alternative provision in place during this time, it would not have been successful. I am satisfied with the Council’s proposed remedy.

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Action

20. Within one month the Council should:
1. Apologise to Miss X for the failings identified. 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.
2. Pay Miss X its proposed remedy of £4,100 to recognise the impact of Y’s missed provision and the frustration and distress caused by failing to consider alternative provision.
21. The Council should provide us with evidence it has complied with the above actions.

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Decision

22. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman