Summary: Ms X complained the Council delayed providing a tutor for her child, communicated poorly with her, and lacks policies for children not in school. Ms X this caused unnecessary and avoidable distress, frustration, and uncertainty. We find the Council at fault and this caused injustice. The Council has agreed to apologise, make a payment, and improve its service.

The complaint

1. Ms X complained the Council delayed providing a tutor for her child. She complained the Council communicated poorly with her. She complained the Council has no policy or procedure for education otherwise than at school and risk assessments for face-to-face tuition.
2. Ms X said this meant she ended up doing administrative and educational work for her child’s education when she is not trained or paid for it. She said the fight to get her child an education has caused unnecessary and avoidable distress, frustration, and uncertainty.

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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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How I considered this complaint

6. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
7. I considered:
• the relevant legislation, statutory guidance and policies;
• the Council’s review of its alternative provision;
• the Council’s improvement plan for alternative provision and education otherwise than at school; and,
• the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

8. For some children and young people, education in any setting would be inappropriate due to their special educational needs. This is often referred to education otherwise than at a school (EOTAS).
9. If the council agrees it would be inappropriate for any required special educational provision to be delivered in a school, it can agree to arrange for it to be delivered somewhere else, for example at home. The council must arrange and pay for that provision.

What happened

10. Ms X’s child, B, has special educational needs and cannot attend a school setting.
11. In May 2024, Ms X asked the Council to provide five hours of one-to-one tuition per week for B. In June, Ms X met with a Council officer (Officer F) who said they would ask the Council’s special educational needs panel to consider her request.
12. Ms X contacted Officer F two weeks later. The Council said Officer F was away from work and it had no record of Ms X’s request. The Council said a senior officer (Officer G) would contact Ms X.
13. Officer G contacted Ms X. They said Officer F would contact Ms X by the end of the week.
14. The following week Ms X emailed Officer F and Officer G, and copied in a manager. Ms X got Officer G’s out of office message which said they were away for another ten days. The manager told Ms X they would ask Officer F to contact her as soon as possible.
15. The week after, Ms X emailed the manager and got their out of office message.
16. Ms X then complained.
17. At the end of July, the Council’s panel considered Ms X’s request for home tuition. The Council wrote to Ms X and told her the panel agreed to home tuition.
18. In its August complaint response, the Council said no one was available to cover Officer F’s work while they were not at work. It said Officer G was not able to monitor progress because they were not at work.
19. The Council said it was reviewing its arrangements for children being educated otherwise than at a school (EOTAS). It anticipated this would result in an EOTAS policy.
20. B’s tuition started in September. It was online tuition.
21. In its October complaint response, the Council said tuition would increase, up to ten hours per week in line with B’s ability. The Council accepted it did not make it clear in September whether the tutor would be able to deliver sessions suited to B’s specific needs.
22. The Council said tuition had been online because it had not been able to do a risk assessment. A risk assessment would mean the tutor could provide the sessions face-to-face. The Council recognised that online sessions were not ideal for B. It said there had been an avoidable delay in putting face-to-face tuition in place for B, and apologised.
23. The Council said it had missed opportunities to reallocate tasks when Officer F was away from work. It said it did not have a process for doing risk assessments for children getting EOTAS provision, but it was looking at this. It said it was also considering having a designated EOTAS lead.
24. In December, Ms X complained to the Ombudsman.
25. In January, B started having face-to-face tuition sessions.

Analysis

Tutor provision

26. Ms X complained the Council delayed providing a tutor for her child.
27. In May, Ms X asked to discuss tuition with the Council. In June, the Council said it would put Ms X’s request for tuition to the panel the next week. The request was not put before the June panel. Instead, the July panel considered, and agreed, the request.
28. The Council upheld Ms X’s complaint about the delay making the request to the panel. I agree. I find this delay is fault. The delay sending the request to panel was because Officer F was not in work and no one covered their work.
29. Online tuition started in September. It gradually increased in line with B’s abilities. Ms X, the tutor and the Council agreed the increases. The Council did its first risk assessment in November. Face-to-face tuition started in January.
30. B should have been receiving face-to-face tuition from September. B’s face-to-face provision was delayed because the Council was not able to complete a risk assessment before November. This is fault.
31. Ms X said online tuition was difficult for B to access. While I agree that online tuition was not the best possible provision for B, the Council did provide tuition in line with B’s ability. For this reason, I find the injustice to B is limited.
32. I find the fault here caused Ms X uncertainty, which is injustice.
33. The Council apologised for the injustice, which I am satisfied with. Also, it offered Ms X £300 to remedy the injustice. Ms X has not accepted it.
34. The Council has now employed a designated EOTAS lead who carries out risk assessments for all children needing tuition at home. The Council is also creating an EOTAS policy which is currently in draft and at the consultation stage. This is positive.

Communication

35. Ms X complained the Council communicated poorly with her.
36. Change in tuition hours
37. Ms X said the Council did not tell her there had been a change in B’s hours of tuition. She said it had changed from five hours per week to ten hours.
38. Ms X asked the Council for five hours’ tuition per week. The Council’s letter to Ms X saying the panel had agreed tuition does not specify how many hours per week it had agreed. Later, the Council referred to B having up to ten hours per week.
39. The Council told the Ombudsman that its letter with the panel decision sets out the number hours of tuition. I do not agree.
40. I have not seen any evidence that persuades me the Council told Ms X before tuition started how many hours B would get per week. This is fault. I find the Council should have been clear in July, when it told Ms X the panel’s decision, how many hours of tuition it had agreed.
41. I find this fault caused Ms X confusion and uncertainty, which are injustice.
42. Updates
43. The Council’s first complaint response accepted that Ms X had asked for several updates from Officers F and G about the request to the panel and the panel’s decision.
44. The Council’s second complaint response accepted it had missed opportunities to reallocate tasks when officers were not at work.
45. It is clear that Ms X regularly asked for updates. She did not get responses because no one was covering Officer F’s or Officer G’s tasks while they were not at work. This is fault.
46. I find this fault caused uncertainty, which is injustice.
47. The tutor’s abilities
48. Ms X asked that B’s tutor was trained in B’s specific needs. Ms X complained the Council did not communicate properly with her about the tutor’s ability to deliver sessions that were appropriate for B’s needs.
49. The Council’s second complaint response accepted it did not make clear at the time if the tutor was able to deliver sessions suited to B’s needs. This is fault.
50. I find this caused uncertainty.

Policies

51. Ms X complained the Council has no policy or procedure for education otherwise than at school (EOTAS) and risk assessments for face-to-face tuition.
52. The Council did not have these policies or procedures in place at the time. However, since then the Council has taken action to address this, which is positive.
53. The Council is creating an EOTAS policy which is currently in draft and at the consultation stage.
54. The Council reviewed its alternative provision (AP) and EOTAS. It considered the Ombudsman’s position. It made key decisions on how to improve its service. The Council created an AP and EOTAS improvement plan. It has employed a designated AP and EOTAS lead, who also carries out risk assessments for children needing face-to-face tuition.
55. I am satisfied the Council has taken action to improve its service.

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Action

56. Within four weeks of this decision, the Council has agreed to apologise to Ms X in writing for the uncertainty caused by:
• failing to be clear in July how many hours of tuition the panel had agreed for B;
• failing to cover officers’ tasks in their absence; and,
• failing to make it clear if the tutor was able to deliver sessions suited to B’s needs.
57. 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 this apology.
58. Within four weeks of this decision, the Council has agreed to make a payment of £450 to Ms X. This is made up as follows:
• The Council offered Ms X £300 to remedy injustice. I have considered our guidance on remedies which sets out a maximum of £500 for uncertainty. I consider the Council’s proposed remedy is appropriate and proportionate for the level of injustice caused by the delays implementing B’s face-to-face tuition. For this reason, I propose the Council keeps this offer of £300 open to Ms X; and,
• £150 to remedy the uncertainty caused by failing to respond to Ms X because officers were not at work and their work was not covered. I have taken into consideration the length of time this went on for and the level of uncertainty caused. I consider £150 is proportionate and appropriate.
• £300 plus £150 is £450.
59. Within three months of this decision, the Council has agreed to consider and implement a way to make sure that if an officer is not at work or is on a phased return, their tasks are reallocated so that work (such as putting a request before the panel) is not delayed and parents are not left to fall between the gaps.
60. The Council should provide us with evidence it has complied with the above actions.

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Decision

61. I find fault causing injustice. The Council has agreed to take actions to remedy injustice and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman