Summary: Ms X complained that the Council failed to provide her son, Y, with suitable full-time education and failed to secure Section F provision of his EHCP during the 2023/24 academic year. The Council failed to implement the education package it proposed and did not secure the specialist dyslexia provision required in Y’s Plan. As a result, Y missed out on significant education and specialist support, and Ms X was caused avoidable distress and frustration. The Council has agreed to our recommendations.

The complaint

1. Ms X complains the Council:
1. Failed to provide her son, Y, with a suitable full-time education during the 23/24 academic year; and
2. Failed to secure Section F provision for Y during the 23/24 academic year.
2. Ms X would like the Council to apologise, provide a remedy for missed education and provision, and to reimburse costs incurred through private tutoring and legal expenses.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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(1), as amended)

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How I considered this complaint

7. I considered evidence provided by Ms X and her representative, as well as relevant law, policy and guidance.
8. Ms X, her representative and the Council were offered 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

Section 19 Education Act 1996

9. Councils must make arrangements for the provision of suitable education at school or otherwise for children of compulsory school age who, by reason of illness, exclusion or otherwise, would not receive suitable education without such arrangements. This duty applies whether or not a child has an Education, Health and Care Plan.
10. The education arranged must be suitable to the child’s age, ability, aptitude, and any special educational needs they may have. It should generally be full-time unless this is not in the child’s interests.
11. Case law (e.g. R (DS) v Wolverhampton City Council [2017]) confirms that this duty arises once it becomes clear that a child is not receiving suitable education, and that the education must be “available and accessible” in practice, not just offered in principle.

Section 42 Children and Families Act 2014

12. Where a child has an Education, Health and Care Plan, the council must secure the special educational provision set out in Section F of the Plan.
    This is a non-delegable, enforceable duty. Councils cannot rely on parental arrangements or personal budgets to discharge it unless they have confirmed these are being delivered in full and are suitable.
13. Provision must be secured from the date the Plan takes effect, regardless of whether a school placement has been identified.

SEND Code of Practice 2015

14. Paragraph 9.131 states that where a child is not in a named school or setting, councils must still arrange the special educational provision in Section F.
15. Paragraph 9.61 confirms that councils must respond to the individual needs of the child and work collaboratively with families to meet those needs through education provision.

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What happened

16. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.

Background

17. Following a SEND Tribunal Decision of December 2022, School A was named in Y’s EHCP In July 2023, Y’s place at School A broke down, following School A confirming it was unable to meet his needs. Later in July 2023, the Council issued a letter confirming its intention to amend Section I of Y’s ECHP to reflect the removal of School A.
18. School B were commissioned to begin working with Y at the start of the school term in September 2023.

Education for Y throughout 23/24

19. Ms X’s representative says School B began to provide 4.5 hours of education, including 1.5 hours of education from a trained teacher. In September 2023, the Council wrote to Ms X advising that it was required under Section 19 Education Act 1996 to commission a package of education other than at school (EOTAS) to support the provision outlined in Section F of Y’s plan while a suitable alternative education placement was sought.
20. The Council set out the package of education it had agreed to provide to Y, this included (but was not limited to)
• Dyslexia / Dyscalculia tuition: 2 hours a week
• Home tuition: additional 16.5 hours tuition per week (in addition to the School B provision)
21. In the same correspondence, the Council noted that it had commissioned tuition for 18.5 hours per week from Tutor Service A, but that they had withdrawn their offer earlier in September 2023. The Council advised it would continue to seek an alternative provider, but offered a Personal Budget to the family to secure their own teacher/tutor to work with Y.
22. In early-October 2023, Ms X’s representative’s wrote to the Council to advise that Ms X did not feel comfortable taking on a Personal Budget to manage the 18.5 hours of tuition.
23. In November 2023, Ms X’s representatives wrote to the Council, proposing Education Provider A to deliver some of the the additional 18.5 hours of education; it is noted that Education Provider A were only able to deliver up to 15 hours.
24. Their follows communication between Ms X’s representatives and the Council in December, before the Council concludes in mid-December that it would not commission Tutor Service A. The Council outlined its reasons to Mr X’s representatives.
25. It is understood that Ms X commissioned sessions directly with Tutor Service A for 1.5 hours per week.
26. In February 2024, a letter was sent to the Council on behalf of Ms X that challenged:
• ‘The Council’s ongoing failure of the local authority to make arrangements for the provision of suitable full-time education for the Claimant, contrary to the duty owed pursuant to section 19 Education Act 1996.’ and;
• ‘The Council’s refusal to agree and fund ‘Tutor Service A as a) an alternative education provider for Y and b) as the base from which Schol B will deliver their interventions away from home’.
27. The Council responded in mid-February 2024, proposing further options. Ms X’s representative says the options offered by the Council were insufficient, or failed to confirm what they could offer.
28. The Council maintained its decision not to commission Tutor Service A but invited Ms X to commission that provision themselves through a personal budget. Ms X’s representative’s say that Ms X was forced to accept the Council’s proposal to commission the services herself through the use of a personal budget.
29. Ms X’s representative’s say it was made clear to the Council that Ms X was unable to take on a personal budget to manage the remainder of Y education, and that the local authority needed to take ownership of sourcing and funding providers to ensure Y received a full-time education.
30. In May 2024, the Council proposed Provider B suggesting it could provide up to 15 hours of weekly tutoring. Ms X’s representatives say it was agreed that Provider B would provider a maths tutor for a total of 5 hours weekly, but that the tutor only visited for a total of 2 hours.
31. An alternative education placement was agreed for Y in August 2024 to begin in September with Provider C.

Section F Provision

32. Section F of Y’s Education, Health and Care Plan from January 2023 specified that Y should receive two hours per week of 1:1 teaching from a specialist dyslexia teacher; one hour for literacy and one hour for numeracy. This provision was repeated in the amended Plan issued in December 2023.
33. The Council’s September 2023 letter to Ms X referenced dyslexia and dyscalculia tuition as part of the proposed education package. It said the Council would arrange two hours per week of tuition but did not clarify whether the tutor would meet the specific qualifications outlined in Section F of Y’s Plan.
34. Ms X’s representatives later confirmed that the Council had not secured a dyslexia specialist at that time. In January 2024, they identified a tutor with appropriate specialist qualifications and wrote to the Council with her details. The tutor also contacted the SEND team directly to confirm her qualifications and provide her CV.
35. The Council agreed to fund the identified tutor at a rate of £420 for seven weeks. The Council’s response to Ms X’s pre-action letter in February 2024 reaffirmed its agreement to fund this dyslexia provision at a rate of one hour per week for 39 weeks per year, in line with the September 2023 offer.
36. The tutor began working with Y, but withdrew after only a few weeks due to securing a different role. Ms X’s representatives say the Council did not take any steps to identify or commission a replacement tutor.
37. In July 2024, Ms X emailed the Council to request that it put in place a qualified dyslexia tutor to meet the requirements in Section F of Y’s Plan. The Council responded the same day, confirming it would ask the caseworker to source a suitable tutor and, if necessary, seek provision from an alternative provider.
38. There is no evidence that the Council subsequently identified or commissioned a suitable replacement. Aside from the short period during which the original tutor was in place.

Council’s response to my enquiries

Whether the Council provided a suitable full-time education during 2023/24

39. The Council says it arranged a full EOTAS package at the start of the Autumn Term 2023, intended to deliver full-time education and meet Section F provision.
40. The Council acknowledges challenges with implementing the package, particularly following the withdrawal of the commissioned provider (Supply & Demand) due to parental concerns.
41. It maintains it remained willing to fund provision and responded to requests by offering a personal budget to allow the family to commission their preferred provider (Roots for Learning).
42. When the family later reported that Y could not access the full offer from Roots for Learning, the Council agreed to source tuition directly and commissioned SPM Development Services Ltd.
43. The Council says it is willing to reimburse any tuition costs incurred by the family, subject to proof of payment.

Whether the Council secured Section F provision for dyslexia during 2023/24

44. The Council states it intended to deliver the two hours of specialist dyslexia tuition as part of the EOTAS package from September 2023, but it is unclear whether this was in fact delivered.
45. In February 2024, the Council agreed to fund a dyslexia tutor sourced by the family and covered seven weeks of tuition.
46. It maintains it has always been willing to fund the Section F provision and says delivery issues arose due to difficulties in agreeing providers with the family.
47. The Council accepts that, aside from the funded sessions in early 2024, it did not commission a replacement tutor when the original withdrew. It attributes the lack of consistent provision to changing circumstances and the family's position on provider suitability.

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Analysis

Education for Y throughout 2023/24

48. Councils have a duty under Section 19 of the Education Act 1996 to arrange suitable full-time education for children of compulsory school age who, for reasons of illness, exclusion or otherwise, would not receive such education unless arrangements are made for them. The courts have confirmed that this duty is triggered once it becomes clear that a child is not in receipt of suitable education and that what is being offered is not reasonably accessible.
49. In this case, it is not disputed that Y was without a school place throughout the 2023/24 academic year. The Council confirmed in September 2023 that it considered its Section 19 duty had been triggered and that it would arrange an EOTAS package as an interim measure.
50. The Council’s records and correspondence show that it identified a package of EOTAS support, which included dyslexia/dyscalculia tuition and 16.5 hours of tuition per week to supplement limited education provided by School B. However, this arrangement was not fully implemented. The Council initially commissioned Tutor Service A to deliver the 18.5 hours of tuition, but the provider withdrew in early September 2023. The Council offered a personal budget to allow Ms X to secure provision herself, but she explained she was not in a position to manage this.
51. It was not until May 2024 that a further provider, Provider B (SPM), was commissioned. Even then, the agreed provision fell short of what was proposed, and only a small number of hours were delivered. This meant that, throughout much of the 2023/24 academic year, Y did not receive the equivalent of full-time education, despite the Council’s recognition that it had a duty to ensure this.
52. While the Council has pointed to its willingness to fund provision, that is not sufficient to meet its legal obligations. The duty under Section 19 is proactive: the Council must take reasonable steps to ensure that provision is in place. It cannot rely on offering a personal budget where the parent has made clear they are unable to manage it, or where doing so results in missed education. The Council did not identify or secure alternative provision promptly after the withdrawal of its initial provider.
53. On balance, I consider there was fault in the Council’s failure to implement the EOTAS package it had proposed from September 2023. Y missed substantial education as a result. Although partial provision may have been in place at some points, including input from School B and privately arranged tuition, this did not meet the standard of full-time, suitable education that the Council was legally required to provide.

Section F Provision

54. Section 42 of the Children and Families Act 2014 places a duty on councils to secure the special educational provision specified in Section F of an EHC Plan. This duty is non-delegable and applies regardless of whether the child is attending a named placement.
55. Y’s EHC Plan required two hours per week of 1:1 tuition from a dyslexia specialist teacher; one hour for literacy and one for numeracy. This provision remained unchanged across both the January and December 2023 versions of the Plan.
56. While the Council’s September 2023 letter referred to two hours of dyslexia tuition, Ms X’s representatives later confirmed no such tutor had been secured. It was not until January 2024 that the family identified a qualified tutor and proposed them to the Council.
57. The Council agreed in February 2024 to fund this specialist tutor, but they only worked with Y for a few weeks before withdrawing. The Council did not take further steps to commission a replacement, despite being reminded of the outstanding need in July 2024.
58. The Council argues it remained willing to fund Section F provision throughout, but willingness alone is not sufficient. The duty under Section 42 is to secure the provision, not simply to offer funding if the parent can source and manage it themselves. After the withdrawal of the tutor in spring 2024, the Council should have acted to identify and commission a suitable replacement.
59. I consider there was fault in the Council’s failure to secure the specified Section F provision for most of the 2023/24 academic year. This caused injustice to Y, who missed out on specialist dyslexia teaching required to meet his assessed needs.

Summary

60. Before recommending a remedy, I have considered the periods during which Y did not receive suitable full-time education or the specialist provision set out in Section F of his EHC Plan. Based on the evidence, I am satisfied that:
• From September 2023 to July 2024, Y was not in receipt of suitable full-time education. Although the Council proposed an EOTAS package, it was not fully implemented. Initial tuition arrangements fell through, and the Council did not secure alternative provision until May 2024. Even then, Ms X reports that delivery was limited and below the level agreed. This means Y received either no provision or significantly reduced hours throughout most of the academic year.
• For the same period, September 2023 to July 2024, Y did not receive the specialist dyslexia provision set out in Section F of his Plan, except for a short window of around three weeks in spring 2024. The Council acknowledged this provision was not in place for most of the year, and it did not take steps to replace the tutor once they withdrew.

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Agreed actions

61. The Ombudsman’s guidance on remedies for SEND and education out of school sets out that, where fault has resulted in missed education or provision, we will typically recommend a symbolic payment of between £800 and £2,400 per school term, depending on the severity of need, the extent of provision missed, and the impact on the child.
62. Given the severity of Y’s needs, the Council’s awareness of its legal duties, and the prolonged period over which provision was missed, I consider this to fall within the mid range of our remedy guidance.
63. Therefore, to remedy injustice in this complaint and prevent similar the occurrences, the Councils will:
1. Send a written apology to Ms X for the failings identified, including the failure to ensure Y received suitable full-time education, the failure to secure the specialist provision set out in Section F of his EHC Plan, and the avoidable distress and frustration caused as a result.
2. Pay £4,800 to Ms X to acknowledge the period during which Y was without suitable full-time education. This is calculated at £1,600 per term for three school terms, in line with the Ombudsman’s guidance on remedies for loss of education.
3. Pay £500 to Ms X to acknowledge the failure to secure the specialist provision required under Section F of Y’s EHC Plan for the majority of the 2023/24 academic year.
4. Pay £400 to Ms X to acknowledge the distress, frustration and time and trouble she experienced in trying to secure appropriate provision for her son.
5. Review its procedures for securing EOTAS provision in cases where a personal budget is declined or inappropriate, to ensure robust commissioning and contingency arrangements are in place.
64. The Council will complete action points a-d within one month of the Ombudsman’s Final Decision, and action point e within three months of the Ombudsman’s Final Decision. The Council will provide the Ombudsman with evidence it has complied with the remedies.

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Decision

65. The Council failed to implement the education package it proposed and did not secure the specialist dyslexia provision required in Y’s Plan. As a result, Y missed out on significant education and specialist support, and Ms X was caused avoidable distress and frustration. The Council has agreed to our recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman