Summary: Mrs X complained the Council failed to secure the special educational provision detailed in her son, Z’s, Education, Health and Care Plan. We find the Council at fault for failing to secure Z’s special educational provision between December 2023 and May 2024. This is fault which impacted Z’s access to education and caused distress, frustration and uncertainty for Z and Mrs X. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to secure the special educational provision detailed in her son, Z’s, Education, Health and Care Plan. Mrs X told us Z has had no education for a prolonged period, and this has impacted his ability to live a normal life. Mrs X also told us the whole family have been impacted, and they have lost education, health, confidence, connection and years which they cannot get back. Ms X would like the Council to acknowledge it has failed to provide education and support and provide a financial remedy. Mrs X would also like the Council to complete a full review of Z’s educational progress and update his Education, Health and Care Plan accordingly.

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The Ombudsman’s role and powers

2. 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)
3. 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. We call complaints that have not been through a council’s complaint procedure ‘premature complaints’. We may decide to investigate a premature complaint if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
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)
7. 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

8. Mrs X first complained to us in March 2023. We decided it was reasonable for the Council to investigate her complaint first. Because Mrs X registered her complaint with the LGSCO in March 2023, the period between March 2022 and March 2023 is not late.
9. The Council issued a final Education, Health and Care Plan for Z in December 2022. Mrs X appealed this Plan to the SEND Tribunal.
10. Following this appeal, the Council issued an amended Plan in accordance with the Tribunal decision at the beginning of December 2023.
11. As there was an ongoing appeal, I have not investigated the Council’s actions in securing Z’s special educational provision between December 2022 and December 2023.
12. The Council issued a further final Education, Health and Care Plan for Z in May 2024. Mrs X had a right to appeal this Plan, and it was reasonable for her to do so given the ongoing issues around Z’s special educational provision. For this reason, I have not investigated the Council’s actions beyond May 2024.
13. I have investigated the Council’s actions in providing access to suitable education between March 2022 and December 2022. I have also investigated the Council’s actions in securing special educational provision between December 2023 and May 2024.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. Mrs X and the Council 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

Legal and administrative background

16. 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. 
17. 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)  
18. 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

19. Between March 2022 and July 2022, Z was on roll at a primary school. The Council told us Z did not attend school during this time. The school marked Z as having authorised absences.
20. Records from July 2022 show that Z only attended school three times between 2021 and 2022 and the Council’s attendance support team provided support. Despite this record, the Council told us it did not consider whether it owed Z a section 19 duty to provide access to suitable, full time education between March 2022 and July 2022.
21. In the middle of July 2022, Mrs X opted to electively home educate Z. Z was electively home educated until the Council issued an Education, Health and Care Plan in December 2022. The Council had no duty to provide Z with access to education between July 2022 and December 2022. Mrs X appealed the final Plan.
22. Following the appeal, the Council issued another Plan for Z in December 2023. This Plan set out that Z should receive a bespoke package of education which included the following weekly provision:
• 12 hours of tutoring.
• Mentoring once Z was able to engage.
• Swimming lessons.
23. Between December 2023 and February 2024, Z accessed weekly tuition. Z was placed on a waiting list for mentoring and swimming lessons with Mrs X’s preferred providers. The Council kept Mrs X updated with progress on the waiting lists.
24. From January 2024 the relationship between the tuition provider and the family broke down and Mrs X requested a new provider.
25. Between February 2024 and May 2024, Z did not receive any of the provision detailed in his EHC Plan.

My findings

26. The Council failed to consider whether it owed Z a section 19 duty to provide him with access to suitable, full-time education between March 2022 and July 2022. This is fault which caused Z and Mrs X distress, frustration and uncertainty.
27. There is no fault in the Council’s actions between July 2022 and December 2022. Z was electively home educated during this time.
28. Z did not receive the special educational provision detailed in his EHC Plan for approximately two terms between December 2023 and May 2024. This is fault which impacted Z’s access to education and caused distress, frustration and uncertainty for Z and Mrs X.
29. The Council offered Mrs X a symbolic payment of £1080 in recognition of the injustice caused by its failure to secure Z’s special educational provision between December 2023 and May 2024. This is approximately £540 per term of missed education. Where fault has resulted in a loss of educational provision, our Guidance on Remedies recommends a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss.

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Action

30. Within one month of the final decision the Council will:
• Apologise to Z and Mrs X for the injustice caused by the faults identified. 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 its apology.
• Make a symbolic payment of £250 to Mrs X in recognition of the injustice caused by the Council’s failure to consider its section 19 duty between March 2022 and July 2022.
• If Mrs X has not already received the £1080 symbolic payment offered by the Council in its complaint response, the Council should re-offer this to Mrs X in recognition of the injustice caused by the Council’s failure to secure Z’s special educational provision between December 2023 and May 2024.
• Make an additional symbolic payment of £720. This brings the Council’s symbolic payment for loss of provision between December 2023 and May 2024 to £900 per term of missed special educational provision, in line with our Guidance on Remedies.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman