Summary: Mr X complained the Council did not provide appropriate education to his son when he was not on roll at any school and that it did not organise provision set out in his Education, Health and Care Plan. We found fault because the Council failed to deliver an appropriate level of alternative education and failed to deliver the services specified in the plan. Mr X has suffered avoidable distress and frustration and his son has missed out on some of the education he should have received. To remedy the injustice caused, the Council has agreed to apologise, make a payment to Mr X, issue reminders and guidance to relevant staff and consider reviewing some of its policies and procedures.

The complaint

1. Mr X complains the Council has failed to provide his son, Y, with specialist services included in his Education, Health and Care (EHC) Plan, since February 2022. He also complains the Council has failed to provide an adequate alternative education to Y whilst he has not been on roll at school.
2. Mr X says this has caused distress, anxiety and frustration and that Y has missed out on educational provision he was due.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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 First-tier Tribunal (Special Educational Needs and Disability (SEND)) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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.
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. 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

9. Paragraph four (above) applies to this complaint. I have exercised discretion to investigate Mr X’s complaint back to February 2022. This is when Y began to receive tutoring arranged by the Council. I am therefore satisfied it is reasonable to include this period in my investigation.
10. I have not investigated any matters prior to this as they are late and I see no good reason to exercise discretion to investigate now.
11. My investigation ends when the Council issued Y’s amended Final EHC Plan in April 2024.

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How I considered this complaint

12. I have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.

13. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

14. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
15. The EHC Plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this. Section F of the plan is about the special educational provision needed by the child or the young person. Section I is about the name and/or type of educational placement set out in the plan.
16. 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 (S42)). 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)  
17. We can look at complaints about where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Alternative provision

General section 19 duty

18. 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 S19 or alternative education provision (AP).
19. 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)
20. 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))
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Available and accessible

22. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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)

Focus report

23. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
24. Where councils arrange for schools or other bodies to carry out the functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

25. I have set out below a summary of the key events. This is not meant to show everything that happened.

Background

26. Y has an EHC Plan and various diagnoses, some of which are health related and some of which relate to his SEN.
27. Prior to the period of investigation beginning in February 2022, Y had attended some mainstream education at primary school and then subsequently received some tutoring at home. He had attended mainstream secondary school for one term before an incident meant he felt unable to return. Following this, Y began to access tutoring in February 2022.
28. The EHC Plan in force at the beginning of 2022 had been updated in February of 2020 with a review scheduled for July 2020, which lined up with the end of his primary education. There is no evidence the review in July 2020 had taken place. The plan was designed to be delivered in a school-based setting.
29. Section F of Y’s EHC Plan listed provisions linked to:
• social, emotional and mental health – such as an emotional literacy programme, social skills programme and Lego therapy;
• cognition and learning – such as providing clear and simple instructions to Y in a structured learning environment and activities to build independence. It also included structured maths, phonics, writing and precision teaching sessions each day;
• communication and interaction – such as teaching specific vocabulary, breaking down instructions into small steps, developing strategies to respond to social interactions and build friendships, as well as speech and emotional vocabulary programme sessions;
• sensory and physical needs – such as activities to develop strategies to manage Y’s responses to noise, provide rest breaks and complete daily sensory work and handwriting practice.
30. All support was to be delivered by school staff and overseen by a qualified teacher. The minimum time suggested for this added up to 12.5 hours per week.

2022

31. At the beginning of February 2022, the Council arranged home-tutoring for Y. This was set at nine hours of one-to-one provision per week, delivered over three days. It was designed to provide education to Y in the interim period whilst the Council tried to find him a suitable setting for his education. The tuition hours increased to 10 per week from July 2022 onwards.
32. At the beginning of March 2022, the Council sent consultation letters to six settings to see if they could offer Y a permanent place there.
33. In mid-April 2022, the Council sent consultation letters to a further six providers.
34. At the beginning of May 2022, the Council began to chase some of those consulted for a response.
35. In mid-May 2022, the Council sent consultation letters to three additional providers and re-sent letters to four of those consulted in April.
36. At the beginning of June 2022, the Council agreed to re-issue Y’s EHC Plan following a reassessment of his needs. The plan was not re-issued at this time.

2023

37. At the end of January 2023, the Council sent consultation letters to ten providers, nine of which it had previously sent consultations to in 2022. The Council did not receive any offers of a placement for Y from any of the settings that had so far been consulted.
38. At the end of March 2023, the Council issued a new Final EHC Plan to replace the one in place since at least 2020. The Section F wording and provision was identical to that of his old plan, with the addition of two new provisions being added. These were linked to social skills and a transition package to help Y reintegrate back in to school. Section I said that Y would attend specialist provision but did not name a setting.
39. In mid-September 2023, Mr X complained to the Council. He said it had failed to provide his son with an education and to deliver the content specified in Section F of his EHC Plan.
40. A few days later, the Council received an email from Mr X’s MP asking it to look into his case and provide her with an update.
41. At the beginning of October 2023, the Council emailed Mr X to apologise and advise its stage one complaint response would be delayed.
42. In mid-October, Mr X’s MP said she had met with the family and Mr X had mentioned whether it would be possible to increase Y’s tutoring hours so that he could study more than Maths and English. Mr X’s MP acknowledged the Council had been in touch with Mr X but asked the Council for an update on the case as per her previous email.
43. At the beginning of December 2023, the Council re-sent consultation letters to seven providers it had previously approached.

2024

44. Early in January 2024, Mr X’s MP’s office chased a response to its enquiry sent in September 2023.
45. At the end of January 2024, the Council sent Mr X an email to apologise for his continued wait for its stage one complaint response.
46. At the end of February 2024, the Council held a meeting to discuss Y’s case and then held an annual review of his EHC Plan.
47. At the beginning of March 2024 and as a result of the annual review, Mr X emailed the Council to say he had met with the company delivering Y’s tutoring (Company A). He proposed a plan for Y to attend a local specialist centre run by Company A for 10 hours per week, in addition to two gym visits per week as well as continuing the existing 10 hours of tutoring.
48. In mid-March 2024, the Council sent its stage one complaint response. It apologised for the delay in sending it. Amongst other things, it also said:
• it had consulted and re-consulted with 40 schools (over the time Y had not been in school);
• tuition had been organised to support Y’s education;
• it recognised Mr X’s concerns he felt the tuition was not equivalent to full-time education;
• it recognised contact from its SEN team had not been as good as it should have been;
• it acknowledged Y’s lack of a school setting was affecting his mental health;
• that it had agreed a package of education to be delivered outside of a school setting; and
• its SEND team was experiencing staffing shortages but it realised this did not mean it did not have duties to fulfil.
49. Towards the end of March 2024, Mr X emailed the Council to escalate his complaint to stage two of its process. He was unhappy with the contents of the stage one response given that he had waited six months to receive it. Mr X was unhappy that he felt the Council was still failing his son.
50. Further meetings and discussions about Y’s case and his EHC Plan were held during March and April 2024.
51. In late-April 2024, the Council sent its stage two complaint response. In this, it:
• apologised again for the delay in its stage one complaint response and explained some of the reasons;
• said it was committed to finding Y a school place;
• confirmed it had sent Mr X the agreed budget for Y to attend Company A’s specialist education centre, gym visits twice per week and continuation of the existing home tuition of 10 hours per week; and
• offered Mr X a remedy payment of £4000 in recognition of the delays in issuing Y’s Final EHC Plan and the anxiety and frustration for the time it had taken to secure appropriate provision for him.
52. At the end of April 2024, the Council issued an amended Final EHC Plan for Y. The Section F wording was identical to that of his previous plan. Section I was blank as education other than at school (EOTAS) had been agreed.

Analysis

Education, Health and Care Plan provision

53. I acknowledge the Council’s comments received in response to my enquiries about the significant difficulties it has experienced linked to staff shortages and its SEND related workloads and complaints. However, under S42, the Council has a non-delegable duty to deliver Section F provision to Y.
54. The EHC Plan in place at the beginning of 2022 and subsequent plan issued in 2023 were almost identical. Both were designed to be delivered in a school-based setting, despite Y not attending or being on roll at any school for some time before tutoring began in 2022.
55. As part of my enquiries to the Council, I asked it what level of Y’s Section F provision detailed in his EHC Plan was delivered to him by the tutoring in place from February 2022 onwards. In response, the Council said it was unable to provide any evidence of why the provision was not being delivered in full and accepted there should have been more discussion with the tuition company about what could and could not be delivered. The Council acknowledged this was fault.
56. Whilst I acknowledge the plan had originally been designed to be delivered in a school-based setting, I agree with the Council. Whilst there is evidence to show the tutoring was working well and Y was accessing some education, there is no evidence that the requirements set out in Section F of Y’s plan were either discussed or monitored at any time. This meant that there was uncertainty for Mr X as to what, if any, of the Section F provision in Y’s plan was being delivered through the tutoring in place. It also meant that on the balance of probabilities and in the circumstances of this complaint, Y lost the opportunity to receive his full Section F provision. I have made a recommendation below to remedy this injustice.

Alternative education

57. Mr X complains the Council failed to provide an adequate alternative education to Y whilst he was not on roll at any school.
58. When the Council arranged for tutoring to begin in February 2022, this was set at three hours per day, delivered for three days per week. This later increased from nine to ten hours per week, delivered over the same three days.
59. As part of my enquiries, I asked the Council how it had decided the amount of tutoring arranged was an appropriate amount. The Council said that it worked on the principle that an hour of one-to-one tuition is equivalent to three hours of classroom-based learning and therefore full time.
60. I also asked the Council what consideration it had given to increasing the hours or whether it was a suitable amount for Y. In response, the Council said that it had no evidence of any review or consideration as to whether this was sufficient or whether it could be increased. The Council accepted this was fault and apologised for this.
61. Evidence of various emails between Mr X and the Council show that as early as March 2022, he had enquired about what could be done to educate Y if the Council was unable to find a school.
62. Further evidence shows the Council then approached the tutoring agency to see if it could increase the 10 hours but was told by the agency that it could not go over this due to the Council’s own directive as it was an unregistered provider.
63. Internal discussions at the Council in early-July 2022 show that it was suggested there was no reason the Council could not consider additional hours of other forms of AP for Y but that it would need to link with his Section F provision and be discussed with his parents. Later on the same day, the Council told Mr X it was not looking to extend the 10 hours of tutoring as it considered this to be full time.
64. There is no evidence to suggest it discussed any other potential options with Mr X until around the time Y’s EHC Plan was reviewed in early 2024. This was even though Mr X had made it clear he thought Y could cope with more input, evidence showed the tutoring was going well and that Mr X was unhappy with the situation which he had also discussed with his MP. This lack of consideration is fault.
65. Under S19, the Council had a duty to provide Y with an education equivalent to full time. I acknowledge that guidance states hours of one-to-one tuition could be considered to be more concentrated and therefore fewer. However, evidence shows that when Y did receive additional input from mid-2024 onwards, he was able to access this successfully.
66. Given this and on the balance of probabilities, I am satisfied it is more likely than not that the tutoring hours offered to Y from February 2022 until his new EHC Plan was issued in April 2024, were not equivalent to full time. This is fault. It would have caused frustration and distress to Mr X. It also meant that Y missed out on the opportunity to receive a greater level of alternative education so this would be closer to the equivalent of full time. I have made a recommendation below to remedy this injustice.

The Council’s stage two suggested remedy

67. As part of my enquiries, I asked the Council to explain its rationale for offering Mr X a £4000 remedy payment and clarify how it had been calculated.
68. The Council said this was calculated at £3300 for times where it had not offered any support to educate Y in specific periods before the timeline of this investigation. It also said it had calculated £300 for distress and delay, £100 for time and trouble taken for Mr X to deal with the complaints and £300 for the delayed complaint response.
69. Any recommendations made below are to cover the period of this investigation only, which is February 2022 to April 2024. They relate only to complaints about Y’s EHC Plan provision and AP during this time. They are not linked in any way to the Council’s previous remedy offer to Mr X.

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Agreed action

70. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Y and Mr X for the injustice caused by the lack of Section F provision and appropriate AP equivalent to full time from February 2022 to April 2024;
• make a symbolic payment of £11700 to Mr X to remedy the lack of Section F provision and appropriate AP from February 2022 to April 2024. This is calculated at £1800 per term for six and a half terms;
• make a symbolic payment of £500 to Mr X to recognise the distress and frustration experienced as a result of the injustice caused to him;
• re-offer its original symbolic remedy payment of £4000 to Mr X which fell outside the scope of this investigation;
• remind relevant officers and managers of the Council’s statutory duties under S42 of the Children and Families Act 2014;
• consider reviewing its policies and procedures to ensure it retains oversight and control for its S42 duties;
• remind relevant officers and managers of the Council’s statutory duties under S19 of the Education Act 1996;
• consider reviewing its policies and procedures to ensure it retains oversight and control for its S19 duties;
• share with relevant officers and managers, the Ombudsman’s focus report Out of school, out of sight?;
71. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
72. Payments made are in line with the Ombudsman’s guidance on remedies.
73. The Council should provide us with evidence it has complied with the above actions.

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Final decision

74. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman