Summary: Ms X complained about the Council failing to provide suitable provision for her child from their Education, Health and Care Plan. We found fault with the Council failing to provide suitable educational provision and for poor handling of her contacts and complaint. The Council agreed to make payments to Ms X to address her child’s missed educational provision and agreed to ensure an Educational Psychologist creates a suitable programme to be delivered by a tutor.

The complaint

1. Ms X complained the Council failed to provide suitable education or Section F Education, Health and Care Plan provision to her child since January 2022.
2. Ms X also complained the Council failed to complete the annual review process for her child’s Education, Health and Care Plan or follow the complaint process.
3. Ms X says the Council’s actions have resulted in delays for her child receiving suitable education, therapy interventions and monitoring. Ms X says this matter has also caused her frustration and stress.

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The Ombudsman’s role and powers

4. 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)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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)
9. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
10. 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

11. I have investigated Ms X’s complaint about the Council’s failure to provide suitable education for her child since 2 October 2023.
12. I have not investigated Ms X’s complaint about a lack of suitable education for her child before 2 October 2023 because this is outside the Ombudsman’s jurisdiction on time.
13. The Ombudsman cannot investigate complaints a person has known about for more than 12 months before approaching the Ombudsman. Ms X only raised her complaint with the Ombudsman on 14 October 2024. Ms X was aware of the issues in her complaint since as early as January 2022. I have exercised my discretion to investigate matters back to 2 October 2023, rather than 14 October 2023, because this is the date the Council has gone back to in its complaint consideration. There is no good reason Ms X could not have brought her complaint to the Ombudsman sooner and therefore no good reason to exercise our discretion to investigate further back.
14. It is also of note that Ms X appealed her child’s Education, Health and Care Plan to the SEND Tribunal, who made its decision on 20 September 2023. The Ombudsman cannot investigate the same matters considered by the SEND Tribunal. Ms X appealed the suitability of her child’s Section F provision and detailed concerns about her ability to attend school. The timing of the appeal to the SEND Tribunal also creates a potential cross-over between the Tribunal’s consideration of this matter and adds weight to the decision not to investigate matters before 2 October 2023.
15. I have investigated Ms X’s complaint about the Council’s failure to provide EHC Plan provision since 26 October 2023. This is because the SEND Tribunal instructed the Council to issue an amended EHC Plan on 22 September 2023. The Council had five weeks to issue this amended EHC Plan, up to 27 October 2023. The Council issued the amended EHC Plan on 26 October 2023 meaning it met this timescale. The Council was only responsible for delivering the EHC Plan provision from the finalised EHC Plan. It is therefore suitable for the Ombudsman to investigate the failure to deliver the EHC Plan provision from 26 October 2023 as this was the date the Council finalised the amended EHC Plan.
16. I have not investigated Ms X’s complaint about the Council’s delay in reviewing her child’s EHC Plan. This is because Ms X has not raised this as part of her complaint with the Council. Ms X needs to raise this matter as a complaint with the Council, and give it opportunity to address this complaint, before the Ombudsman can investigate.
17. I have ended my investigation on 25 October 2024. As explained in paragraph 16, a council must be given opportunity to address a complaint before the Ombudsman can investigate. Any injustice to Ms X’s child, through lack of educational provision, would be ongoing. The Ombudsman’s investigations are not open ended and we must decide on an end point. I have chosen 25 October 2024 as the end point because the Ombudsman agreed to investigate Ms X’s complaint on 14 October 2024 and the 25 October 2024 is the end of the half term shortly after this date. The Council has not had opportunity to investigate any matters after this date. Should Ms X have concerns about any failure to provide suitable provision after this point this would be the subject of a new complaint.

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How I considered this complaint

18. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
19. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

EHC Plans

20. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
21. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
22. The Ombudsman can look at any failure by the Council to deliver the provision within an EHC Plan.

Alternative provision of education

23. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
24. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
25. 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))
26. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
27. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council complaints policy

28. The Council operates a two stage complaints process. The Council says it will acknowledge a complaint within 3 working days and provide a Stage 1 complaint response within 4 weeks.
29. If a person is dissatisfied with the Stage 1 complaint response, they can request consideration of their complaint at Stage 2. The Council says it will provide a response at Stage 2 within 5 weeks of request.

What happened

Background information

30. In January 2022, Ms X’s child, who I shall refer to as Y, stopped attending school. Y had an EHC Plan when they stopped attending school.
31. In September 2022, Ms X appealed Y’s EHC Plan to the SEND Tribunal.
32. On 22 December 2022, the Council refused to provide Alternative Provision of education for Y.
33. Y’s school removed Y from enrolment on 10 March 2023. Ms X sought a personal budget for Y’s education following the school removing Y from enrolment.
34. In August 2023, the Council confirmed it was looking for tutors to provide Y with Education Otherwise Than At School (EOTAS). By September 2023, the Council had sent an EOTAS package proposal for Y to management for consideration.
35. On 22 September 2023, the SEND Tribunal instructed the Council to amend Y’s EHC Plan following a hearing on 20 September 2023.

Matters since 2 October 2023

36. On 26 October 2013, the Council issued an amended Final EHC Plan for Y following the instruction from the SEND Tribunal. Section F of Y’s EHC Plan detailed the following Section F provision as part of Y’s EOTAS package:
• 4 hours per week of social and emotional intervention through MindJam.
• Provision of Laptop.
• 5 hours of tuition per week (building up to 15 hours) through a SEN tutor.
• 2 hours of STEM/STEAM sessions each week.
• 2 hours of physical education each week.
• Provision of school resources (such as printer ink).
• Annual subscription to Purple Mash.
• 2 hours of therapeutic activity each week (such as horse riding).
• A 1.5 hour Speech and Language Therapy (SALT) meeting each half term.
• Occupational Therapy including twice weekly 15-minute sessions of touch typing and half termly observations.
• An Educational Psychologist to set up a programme to address Y’s emotion-based anxiety around education, to then be delivered by a tutor.
37. On 10 November 2023, Ms X contacted the Council to ask when the Council would put in place provision from the Final EHC Plan and when it would put in place the personal budget.
38. Ms X chased the Council twice in November 2023 and again in December 2023.
39. On 13 March 2024, Ms X issued a Pre-Action Protocol Letter to the Council about the lack of educational provision for Y.
40. On 27 March 2024, Ms X missed a call from the Council and asked it to email her in response instead.
41. The Council sent a letter to Ms X on 13 May 2024 about Direct Payments for Y’s educational provision.
42. The Council sent Ms X a personal budget payment on 30 May 2024 for the following educational provision since 15 April 2024:
• 2 hours of STEM/STEAM sessions each week.
• 2 hours of physical education each week.
• Provision of school resources (such as printer ink).
• Annual subscription to Purple Mash.
• Activities and Trips for 38 sessions per year and travel expenses.
• A one-off payment for a laptop.
43. Ms X made a formal complaint to the Council on 4 June 2024. Ms X said the Council had failed to provide education and EHC Plan provision for her child since January 2022. Ms X said that since October 2023, the Council had only provided MindJam sessions for Y and delayed provision of the Personal Budget.
44. The Council acknowledged Ms X’s complaint on 3 July 2024 and on 11 July 2024 advised it would look to provide a response by 19 July 2024.
45. On 29 July 2024, Ms X sought escalation of her complaint to Stage 2 of the Council’s complaint process because of the lack of response at Stage 1.
46. On 23 August 2024, the Council issued a Stage 2 complaint response to Ms X. The Council said:
• It had provided Y with MindJam since October 2023 and had set up direct payments for other provisions since the start of the summer 2023/2024 term.
• It had failed to provide Y’s tuition, 2 hours of therapeutic provision, SALT and Occupational Therapy.
• It apologised for the failure to put in place provisions sooner.
• It would offer Ms X £3,600 for the lost tuition, £450 for lost SALT and £600 for lost Occupational Therapy from 2 October 2023 to 31 July 2024.
• It had arranged for 1:1 tuition to start for Y from September 2024 at 2 hours a week with the view to increasing this with Y’s ability to cope.
• It would liaise with SALT and Occupational Therapy providers to begin provision.
• It would amend Y’s personal budget to include the 2 hours of therapeutic provision.
• There had been periods of time of poor communication from the Council and offered Ms X £100 for the distress this caused Ms X.
• It failed to meet its Stage 1 complaint timescales and offered Ms X £100 in recognition of the time and trouble caused.
47. In September 2024, the Council updated Y’s personal budget to include the cost of the 2 hours of therapeutic provision and paid the revised personal budget to Ms X. The Council also started to provide the promised 2 hours of 1:1 tutoring for Y.
48. On 12 October 2024, an Occupational Therapist completed an assessment of Y.

Analysis

49. The Council has a general duty to provide the provision detailed in a child’s EHC Plan. The Council should provide the full provision to a child from the date it finalises the EHC Plan. For Y, this means the Council should have provided their full EHC Plan from 26 October 2023 when it finalised the EHC Plan following the SEND Tribunal instructions. 26 October 2023 was also in the half-term break for this council area so the duty to provide educational provision effectively only started from 30 October 2023.

26 October 2023 to 29 March 2024

50. From 26 October 2023 to 29 March 2024, the Council generally failed to provide the educational provision detailed in Y’s EHC Plan. The Council only provided the 4 hours per week MindJam sessions. This meant Y went the equivalent of a term and a half without most of the EHC Plan provision. This was fault.

15 April 2024 to end of the academic year 2023/2024

51. The summer term started for Y on 15 April 2024. Shortly after the start of this term, the Council provided the first direct payment to Ms X for Y’s educational provision for 2 hours of STEM/STEAM, 2 hours of physical education, school resources, Purple Mash subscription and a one-off payment for the laptop. The Council also provided suitable provision for Y’s activities/trips and travel expenses. The Council backdated this funding to 15 April 2024 to ensure full funding for the summer term. The Council also continued to provide MindJam sessions.
52. The Council acted correctly to set up the direct payments for Y to source the Section F provision in Y’s EHC Plan. However, the Council had a duty to provide this provision since 26 October 2023 and has not done so. I recommend the Council provides a backdated payment for the direct payments for this provision to 26 October 2023.

Therapeutic Provision

53. While the Council set up direct payments for much of Y’s EHC Plan in May 2023, it did not include Y’s therapeutic provision within the direct payments or provide this directly. In the Council’s Stage 2 complaint response it acknowledged it failed to source this provision.
54. Within the September 2024 direct payments, the Council included an additional £30 per session, totalling £2,280 per year, for Y’s therapeutic provision. The Council acted correctly to include this in Y’s direct payments to cover the cost of this provision from the start of the autumn 2024/2025 term.
55. The Council failed to make this provision available from 26 October 2023 until the end of the academic year. This meant Y went two and a half terms without this provision amounting to a missed cost of £1,900. The Council should provide this backdated payment to Ms X for this missed provision.

1:1 Tuition

56. The Council also failed to provide Y’s tuition until September 2024. At this point, the Council decided to provide Y with 2 hours of 1:1 tuition each week. The Council made this decision because it considered Y could not manage the full 5 hours of tuition and Y needed some time to acclimatise to education before increasing this in line with Y’s ability to cope. The Council has made a decision it was entitled to make and has provided suitable rationale for this. I do not find fault with the Council’s provision of Y’s tuition from September 2024.
57. The Council acknowledged in its complaint response it had failed to provide suitable education/tuition for Y since 2 October 2023. The Council offered £3,600 for this missed provision.
58. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
59. The Council’s offer of £3,600 for this missed provision since 2 October 2023 works out about £1,400 per term. This is in line with the Ombudsman’s guidance on remedies and I consider this suitable in the circumstances of this complaint. I recommend the Council maintains this offer for Y’s missed tuition.

SALT and Occupational Therapy

60. In the Council’s Stage 2 complaint response it has acknowledged it failed to provide both SALT and Occupational Therapy provision from 26 October 2023 to the end of the academic year. The Council offered £450 for the missed SALT provision, £180 per term, and £600 for the missed Occupational Therapy provision, £240 per term.
61. The Council’s awards fall in line with what the Ombudsman would normally recommend for the loss of such provisions.
62. The Council arranged for an Occupational Therapy assessment of Y in October 2024 fulfilling the half-termly observation provision of Y’s EHC Plan up to the end of point of our investigation on 25 October 2024. I therefore consider the offer of the Council of £600 for the missed provision suitable.
63. For the SALT provision this fault continued to the end point of our investigation on 25 October 2024. I recommend the Council increases its award to £540 to reflect the further missed half-term of SALT provision.
64. The Council has evidenced it is currently engaging with both an Occupational Therapist and Speech and Language Therapist to design and incorporate Y’s provision into the next annual review of Y’s EHC Plan. As explained in paragraph 16, I have not investigated any matters about the review of Y’s EHC Plan since its production on 26 October 2023. The inclusion of these provisions into any amended EHC Plan would be the subject of a separate complaint.

Educational Psychologist provision

65. Y’s EHC Plan detailed the Council should arrange for an Educational Psychologist to set up a programme for Y to be delivered by Y’s tutor.
66. The Council has acknowledged that it failed to send Y’s EHC Plan to an Educational Psychologist to tell them that this would need to be arranged. This was fault resulting in Y receiving no Educational Psychologist input from 26 October 2023 to 25 October 2024.
67. The Council has advised it is now working with an Educational Psychologist to ensure this is completed. I recommend the Council completes production of this Educational Psychologist programme and makes a payment to Ms X totalling £500 for this missed provision.

Communication and complaints handling

68. The Council has acknowledged in its Stage 2 complaint response that it has provided poor communication with Ms X and failed to handle Ms X’s complaint within its complaint timescales.
69. The Council failed to provide a Stage 1 complaint response 8 weeks following request, this was 4 weeks outside the Council’s complaint timescale. This was fault. Ms X sought consideration of complaint at Stage 2. The Council accepted this request and provided the Stage 2 complaint response within 5 weeks of Ms X’s request. The Council has also failed to communicate effectively with Ms X at the end of 2023 and start of 2024 before her complaints, meaning Ms X needed to chase the Council for responses on repeat occasions.
70. The Council has offered a total of £200 for poor communication and complaint handling. This is a suitable offer to reflect the distress, inconvenience and frustration caused by the Council.

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Action

71. Within one month of the Ombudsman’s final decision the Council should:
• Provide a backdated payment of Y’s direct payments calculated on 13 May 2024, totalling £2,138.67 per term, for the time period 30 October 2023 to 29 March 2024.
• Provide a payment of £1,900 to Ms X for Y’s missed therapeutic provision from 26 October 2023 to the end of the academic year 2024/2025.
• Provide a payment to Ms X of £3,600 for Y’s missed tuition from 2 October 2023 to the end of the academic year.
• Provide a payment of £600 for the missed Occupational Therapy provision from the EHC Plan since 26 October 2023.
• Provide a payment of £540 for the missed SALT provision from the EHC Plan since 26 October 2023.
• Provide a payment to Ms X of £500 for the missed Educational Psychologist provision from the EHC Plan since 26 October 2023.
• Provide a payment of £200 to Ms X for the distress, inconvenience and frustration caused through its poor communication and complaint handling.
72. Within three months of the Ombudsman’s final decision the Council should:
• Ensure an Educational Psychologist has created a programme to address Y’s emotion-based anxiety around education for this to be delivered by Y’s tutor.
73. The Council should provide us with evidence it has complied with the above actions.

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Decision

74. There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman