Summary: We found fault on Miss Y’s complaint about the Council failing to provide her son with a suitably qualified and trained tutor, experienced in working with young people with autism and anxiety. It failed to show it considered whether the tutor was appropriately trained. Nor did it show steps it took to find an alternative tutor when alerted to the tutor’s shortcomings. The Council agreed to send her an apology for the failings found and remind relevant officers of the need to check whether tutors meet specified criteria and to consider whether it, or the provider, could act to resolve the problem. It would also remind officers of the need to promptly look for an alternative tutor where criteria are not met. There was no fault on Miss Y’s complaint about it failing to reimburse her when she paid the second tutor’s shortfall in wages when changing employer. This was a contractual matter for the tutor and employer.

The complaint

1. Miss Y complains about the Council:
1. failing to provide her son, Z, who is currently receiving education other than at school, with a qualified, trained tutor who had experience in working with young people with autism, despite his Education, Health and Care (EHC) plan requiring it; and
2. refusing to fully fund the tutor she found, who is qualified, trained, and experienced.
2. As a result, her son has not received the provision needed. In addition to the stress and frustration this caused, she also has the financial cost of paying for the tutor herself.

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The Ombudsman’s role and powers

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(1), as amended)
4. 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)
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 evidence provided by Miss Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent my draft decision to Miss Y and the Council. I considered the Council’s response.

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What I found

Law and policy

7. A child or young person with special educational needs may have an 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. 
8. 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)  
9. 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 show appropriate oversight in gathering information to fulfil their legal duty. As 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

10. Miss Y’s son, Z, has an EHC plan which said he needs qualified Special Educational Needs (SEN) teachers as part of his ‘education other than at school’ provision. His first EHC plan was issued in December 2021.
11. The EHC plan said the teachers and teaching assistants would be ‘trained and experienced in working with children with autism and anxiety’. He would receive 8 hours of tuition a week. The Council agreed for this tuition to be given by a tutor from Provider 1.
12. In early 2024, the Council contacted Provider 1 about its tutor and his suitability and qualifications. In response to its query, Provider 1 said he was an ‘experienced tutor’ who was ‘friendly and supportive’ and was able to get ‘brilliant results from every child’. The tutor had three years of experience tutoring Maths, Physics, and Biology up to A-Level, and Chemistry to GCSE. He had experience tutoring English to Key Stage 3. The tutor had a younger relative with autism so had experience working with a student with a learning challenge. The Council shared this response with Miss Y.
13. She was unhappy this tutor was unqualified. She claimed the tutor had no SEN training and so did not meet the requirement of the EHC plan. Miss Y said she accepted this tutor as he was the only one Provider 1 could find, more than two months after they were commissioned.
14. The tutor continued until June when he was removed because of inappropriate behaviour in her home. Up to this point, Z received 4 hours from the tutor at Provider 1 and 4 hours from a second tutor who worked for Provider 2. Miss Y sourced the second tutor herself.
15. This now meant Z only received tuition from the second tutor. The second tutor could not do all the 8 hours of tuition. An email from the Council confirmed the second tutor would provide additional hours over the summer term but could not do so from September.
16. Miss Y wanted the Council to change its supplier to Provider 2. The Council was unable to do so because Provider 2 was not on its approved provider network. To include it would mean adding a new tender. As Miss Y no longer wanted to use Provider 1, the Council explained it had to use the tender process to find another tutor. Miss Y accepted an offer to have some additional provision from another provider to make up lost provision since the removal of the first tutor.
17. The second tutor now registered with Provider 1 who did not pay the same rate as that paid by Provider 2. As a result, Miss Y paid the second tutor the difference. She was unhappy about doing this as she considered the Council should pay it because it failed find a qualified tutor.
18. Miss Y asked for a personal budget so she could pay the tutor directly, but the Council refused. This was because it did not agree to paying the tutor’s top-up funding as it commissioned provision through Provider 1.
19. It suggested Provider 1 could source a SEN qualified tutor instead. Miss Y considered this unrealistic as Provider 1 told her it would take some time to do, even if it was possible.
20. The Council decided it had followed its commissioning process, and the tutor was paid by Provider 1 from which it had commissioned services. It decided any top-up payment was a matter between Miss Y and the tutor. If the tutor wanted a higher wage, she needed to negotiate with Provider 1 for it.
21. The Council actioned an alternative provision tender which was sent to all its approved providers. When it closed, it would work with providers to ensure support for Z by suitability qualified tutors. Provider 2 was not part of that process as it was not on its approved list. To get them on the list was not a quick process. It tried to discuss Provider 2 joining the approved list but there was no response.
22. Z received six of the eight hours commissioned from Provider 1. The Council agreed in July to a temporary increase of two hours a week alternative provision while the tender process was completed. It also issued the final EHC plan the same month.
23. In August, the Council confirmed Z’s weekly provision would be 6 hours tutor provision, 2 hours at another provider, and 10 hours at a different setting.
24. In September, the Council confirmed Provider 3 would now give six hours provision a week. This was after following the tender process.

My findings

Complaint a): unqualified tutor

25. I found fault on this complaint for the following reasons:
1. The EHC plan set out the requirements for the Z’s teachers and teaching assistants. This required them to be i) trained and ii) experienced in working with children with autism and anxiety.
2. When it contacted Provider 1 it was not told the tutor had been trained in working with children with autism. Nor was it told the tutor had been trained in working with children with anxiety either.
3. There was no evidence to show the Council considered whether it could offer the tutor training. Nor was there evidence to show it asked whether Provider 1 could offer, or arrange, such training to the tutor.
4. While Provider 1 said the tutor had worked with a child with autism (a relative) there was nothing to show the tutor had worked with children with anxiety.
5. There was nothing to show the steps the Council took to find an alternative tutor for Z when alerted to these shortcomings. Miss Y said she only accepted the tutor because it had taken Provider 1 about two months to find one in the first place.
6. I consider these failings caused some injustice to Miss Y. She has the uncertainty of not knowing whether the Council could have found a suitably qualified and trained tutor for Z.
26. I am satisfied that when alerted to the problem, the Council took steps to ensure Z received what he needed under his EHC plan.

Complaint b): refusal to top up tutor’s wage

27. I found no fault on this complaint and took the following into account when reaching this view:
1. While the first tutor did not strictly meet the requirements set out in the EHC plan, Miss Y found the second tutor. The problem with the second tutor was she worked for Provider 2. The Council had a tender process it had to follow and Provider 2 was not on its approved list of providers because it had never applied to join it.
2. When the second tutor began to work for Provider 1, her pay was not as high as it was when she worked for Provider 2. The Council paid the agreed rate for Provider 1’s services.
3. Miss Y decided to pay the shortfall of the second tutor’s wages.
4. I saw no reason why the Council was required to pay the second tutor this shortfall. Afterall, it had a contract with Provider 1, not with the tutor. If the tutor was unhappy with the lower wages, she could have taken this up with Provider 1 or not joined it in the first place.

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Action

28. I considered our guidance on remedies.
29. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Miss Y a written apology for the injustice caused by failing to: properly consider whether the first tutor met the requirements of the EHC plan both in terms of training and working with children with anxiety; consider whether it, or the provider, could give the tutor relevant training; look for an alternative tutor when aware the tutor did not meet the EHC plan requirements.
2. Remind relevant officers of the need to check and explore whether teachers and teaching assistants referred to in EHC plans meet any specified criteria set out.
3. Remind relevant officers of the need to consider whether, in cases where teachers and teaching assistants referred to in EHC plans do not meet specified criteria set out, it, the provider, or the tutor themselves could take appropriate action to resolve the problem.
4. Remind relevant officers of the need to promptly consider looking for an alternative tutor where teachers and teaching assistants referred to in EHC plans do not meet any specified criteria set out.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. I found the following on Miss Y’s complaint against the Council:

• Complaint a): fault causing injustice; and
• Complaint b): no fault.

32. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman