Summary: the Council delayed putting in place education for Miss B’s daughter, failed to put in place sufficient education, failed to put in place some of the provision in her daughter’s education, health and care plan and delayed completing the annual review for that plan. An apology, allocation of a budget to be used for Miss B’s daughter’s benefit, payment to Miss B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Miss B, complained the Council:
• failed to provide her daughter with full-time education from September 2022;
• failed to put in place some of the provision in her daughter’s education, health and care plan (EHC Plan);
• delayed completing her daughter’s EHC Plan annual review;
• failed to properly communicate with her;
• failed to reimburse her for the costs she incurred putting in place provision for her daughter; and
• failed to tell her about the arrangements for her daughter’s education for the new school year.
2. Miss B says as a result she has experienced stress and has struggled to fund her daughter’s additional provision.

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The Ombudsman’s role and powers

3. 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)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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

7. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

9. The Education Act 1996 (section 19) provides the basis for statutory guidance. This states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
10. The only exception to this is under subsection 3AA of the 1996 Act, where the physical or mental health of the child is such that full-time education would not be in his/her best interests. In such circumstances, the Council can arrange education on a part-time basis, based on the child’s best interests.
11. A child or young person with special educational needs (SEN) 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 Council can do this.
12. The special educational needs code of practice (code of practice) says EHC Plans must be reviewed by the local authority as a minimum every 12 months. The first review must be held within 12 months of the date when the EHC Plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC Plan or previous review. For looked after children the annual review should, if possible and appropriate, coincide with one of the reviews in their care plan and in particular the personal education plan (PEP) element of the care plan.
13. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC Plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended If the plan needs to be amended, the local authority should start the process of amendment without delay. If the local authority decides not to amend the plan or decides to cease to maintain it, they must notify the child’s parent or the young person of their right to appeal that decision and the time limits for doing so, of the requirements for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.

What happened

14. Miss B’s daughter has special educational needs and was attending a school outside the Council’s area due to difficulties identifying a suitable school for her. Miss B’s daughter has an EHC Plan.
15. The school attended by Miss B’s daughter told the Council the placement had broken down in October 2022. Social care was involved as Miss B’s daughter was on a child protection plan and the family had accepted her being accommodated by the Council. Social care said a tutor would not work for the complainant’s daughter due to her difficulties with transitioning in and out of the family home, which was a trigger for her behaviours. The Council therefore agreed to seek a 52 week residential placement and venue for the complainant’s daughter to access education. The council was also to explore the option of a venue for Miss B’s daughter to access tuition.
16. The Council identified a possible 52 week residential placement on 21 October and sent a consultation to the provision. That provider told the Council it no longer provided residential accommodation.
17. The Council identified another 52 week residential placement and that provider offered an assessment on 2 November.
18. An annual review of Miss B’s daughter’s EHC Plan took place on 8 November.
19. Council officers visited the proposed 52 week residential placement with Miss B and her ex-partner on 15 November. Miss B and her ex-partner told the Council they did not consider the placement suitable. The Council received an offer from the placement on 17 November. Council officers and Miss B then visited the proposed education placement on 4 December. Miss B told the Council she did not feel the school could meet her daughter’s needs.
20. On 27 January 2023 the Council agreed the 52 week residential placement and school provision it had identified in November/December was suitable for Miss B’s daughter’s needs. The Council discussed that proposal with Miss B at a meeting on 6 February. At that meeting Miss B and her ex-partner refused to sign the section 20 agreement and did not agree with their daughter being placed in the accommodation identified by the Council.
21. The Council carried out further consultations with schools in February but none of those schools could provide a place for Miss B’s daughter.
22. The Council met with Miss B again on 27 March and asked her to reconsider the placement identified at the end of 2022. Miss B declined and asked the Council to set up bespoke education for her daughter.
23. On 18 May the Council obtained an interim care order for Miss B’s daughter. The Council began a transition plan for Miss B’s daughter to move to the 52-week residential placement identified at the end of 2022 with an education package. Miss B’s daughter moved into the 52-week placement at the end of June.
24. The Council issued a final amended EHC Plan on 26 June.
25. On 10 July the 52 week residential placement and education centre served notice with immediate effect due to ongoing challenging behaviour from Miss B’s daughter. The 52-week placement agreed to continue until the Council identified another placement. The Council began consulting alternative providers. The Council received various responses in July 2023. None of the providers could take Miss B’s daughter.
26. On 25 July the Council identified a new 52-week placement for Miss B’s daughter. Miss B’s daughter returned to Miss B’s care on 28 July. That was intended to be a temporary return as the plan was for Miss B’s daughter to move into the new 52-week accommodation from 12 October. However, on that date the provider withdrew its offer. The Council therefore agreed to source a venue for education as it had already identified suitable tutors. Tuition began in November 2023 with six hours education per week.
27. Miss B put in a complaint about the lack of education for her daughter from June 2023 and between November 2022 and June 2023. Miss B said her daughter needed to either attend a school that could meet her needs or, if that took time to arrange, a bespoke educational package to include educational tutoring but not online as that did not work. She also asked for additional educational activities to support the rest of the provision in her EHC Plan such as trampolining, soft play, animal care farm, horseriding and swimming. Miss B also asked for the sensory occupational therapy sessions and speech and language sessions 3-4 times a week as recommended in the occupational therapy report and an educational psychologist assessment. Miss B asked for financial compensation for the money she had spent while her daughter was out of education.
28. The Council responded to the complaint on 28 November. The Council said when her daughter returned from the 52-week placement in July 2023 it was not considered appropriate to put education in place immediately. That was because the priority was meeting her daughter’s care needs and forming relationships with the new staff who would be supporting her before introducing new people and provision. The Council noted that provision would have been in place from October 2023 if the provider had not withdrawn. The Council explained it had put in place six hours a week provision in a community venue and would review the EHC Plan when the education provider could contribute. The Council said it would consider whether it was appropriate for Miss B’s daughter to be educated other than at school in the longer term. The Council apologised it had not updated Miss B as quickly as it would have wanted to.
29. I understand there was a break in the tutoring provision between February and March 2024 although it is not clear why that break took place. At the end of March the Council arranged for Miss B’s daughter to receive tutoring of two hours a day three times a week. The Council noted this would leave the afternoons free as well as Tuesdays and Wednesdays and said it could explore educational activities for Miss B’s daughter to participate in during those gaps.
30. Miss B telephoned the Council on 28 March to tell it she was exploring the possibility of gymnastics and swimming lessons for her daughter. Miss B also said her daughter had shown an interest in horseriding and asked whether the Council would fund lessons.
31. The Council arranged for a second tutor to provide a further 1.5 hours education per week from May 2024. The Council also completed a referral for an animal farm Miss B had asked for. However, the animal farm told the Council it did not consider it could provide suitable provision for Miss B’s daughter. The Council told Miss B that.
32. In May 2024 the court granted the Council a full care order.

Analysis

33. Miss B says the Council failed to put in place education for her daughter when she was excluded from school and taken off roll in September 2022. I am exercising the Ombudsman's discretion to investigate what has happened since September 2022 as Mrs B says there was an ongoing failure to put in place full-time provision and it was reasonable for Miss B to have believed the Council was dealing with the issue at first.
34. Having considered the documentary evidence I can see the Council has experienced difficulties sorting out suitable education for Miss B’s daughter. That is due to her complex needs, the fact she cannot access education with other children but is also unable to access online education. However, the Council still has a section 19 duty to put in place education. It is clear there were delays doing that in this case. First, although the Council knew Miss B’s daughter was not receiving any education in October 2022 it did not make any provision available to her until June 2023. As the Council retains a section 19 duty the failure to put in place education during that period is fault.
35. In reaching that view I recognise the Council had further difficulties in this case because all parties agreed Miss B’s daughter needed a 52-week residential placement and that took some time to sort out. It is also clear some of the residential placements the Council identified did not provide education which added a further difficulty. I do not underestimate the problem that created for the Council. However, I consider it should have been clear to the Council that sorting out a 52 week residential placement and education alongside it could take some time, particularly given the difficulties the Council had previously experienced sorting out education for Miss B’s daughter. In those circumstances I would have expected the Council to have explored the option of tutoring while sorting out a placement and I have seen no evidence it did so.
36. In response to my enquiries the Council said social care advised in October 2022 it was not appropriate to put education in place for Miss B’s daughter straightaway. The Council has not provided any documentary evidence to support that contention. Instead, the evidence I have seen is that social care advised Miss B’s daughter could not access tutoring in the home as it was a trigger for her behaviours but the Council was to consider other options such as a venue for Miss B’s daughter to access tutoring with staff. I am therefore not satisfied Miss B’s daughter could not access any education provision at that point. In the absence of any information to show Miss B’s daughter could not access education between October 2022 and June 2023 I consider the Council at fault.
37. I appreciate from the Council’s point of view it had identified a suitable residential placement for Miss B’s daughter with an education venue by the end of January 2023. The evidence I have seen satisfies me the reason the Council could not progress that until May 2023 is because Miss B opposed the placement. The Council could therefore not have gone ahead with the placement until it received the interim care order in May 2023.
38. However, if the Council had put in place tutoring for Miss B’s daughter, as it should have done in 2022, it could have continued that provision until the residential placement could go ahead. I therefore consider the Council at fault for failing to put in place suitable education for Miss B’s daughter between November 2022, when she was taken off roll at her previous school, and June 2023.
39. I recognise Miss B believes the Council is responsible for failure to put in place appropriate education for her daughter up to and including the current date. The evidence I have seen though satisfies me the Council took appropriate action to identify a new placement for Miss B's daughter when the 52 week residential placement broke down. I am satisfied the Council's prompt action meant Miss B's daughter would have begun education in October 2023 had the accommodation provider not withdrawn. As I am satisfied the Council put in place tutoring for Miss B's daughter after that placement broke down I do not criticise the Council for the lack of education in September and October 2023. I am concerned, however, there appears to have been a break in education for Miss B's daughter between February 2024 and May 2024. That again is fault.
40. In addition to that I have some concerns about the amount of education the Council has put in place for Miss B's daughter. The original request for tutoring the Council produced refers to 15 hours tutoring per week. However, the Council only put in place six hours tutoring between November 2023 and May 2024 and 7.5 hours tutoring after that. The Council has not provided any explanation for why it has not put in place the 15 hours it originally intended. Nor is there any evidence in the documentary records I have seen to suggest Miss B's daughter could not cope with 15 hours per week education. I therefore consider the Council at fault for not putting in place additional hours for Miss B's daughter from November 2023, although I recognise the Council has slightly increased the provision recently and intends to do so again.
41. Miss B says the Council failed to put in place provision in her daughter's EHC Plan. The Council accepts there were elements of the provision which were not in place. For some of that provision the Council says the provision is in place but involves adults rather than other children as Miss B's daughter is unable to interact with other children. Presumably the wording of that provision is something the Council will consider as part of the annual review. I welcome the Council's efforts here though to put in place provision which is no longer appropriate for Miss B's daughter as it is currently worded in the EHC Plan. I therefore do not criticise the Council for those elements of provision which are in place but with other adults rather than children.
42. There are elements of the provision that the Council accepts are not in place though. That includes:
• play therapy, which the Council intends to introduce once Miss B's daughter has settled into the autumn term;
• regular short bursts of learning throughout the day, which is in place but only for the amount of hours Miss B's daughter receives education for;
• a one-off IT assessment which the Council intends to look into in the future;
• a full educational psychology assessment of Miss B's daughter's cognitive abilities which the Council says will be undertaken when she is settled and social stories have been undertaken; and
• use of a buddy to support and direct appropriate behaviour, which the Council says is not practicable in the current package.
43. For the buddy issue I would expect the Council to consider whether that needs changing in the EHC Plan as part of the review process. For the remaining provision though, I am satisfied that provision has been in Miss B's daughter's EHC Plan since 2021. I would therefore have expected the Council to put in place those provisions given Miss B's daughter has been settled with the tutoring providers since November 2023. Failure to put in place those provisions is fault.
44. The faults outlined above mean Miss B's daughter missed out on around 2.5 terms of education and has only received part-time education since November 2023. Miss B's daughter has also missed out on some of the provision in her EHC Plan. The Ombudsman will normally recommend an amount between £900 and £2,400 per term of missed education.
45. In this case I take into account the fact Miss B's daughter is unlikely to have been able to access full-time education and the fact she had an EHC Plan and was therefore not receiving any SEN provision when she was out of education and only some of the provision since then. Taking that into account I consider a suitable remedy for the two terms without any education would be for the Council to allocate £3,000 to be used for Miss B's daughter's educational benefit. I further recommended the Council set aside an additional £1,000 to reflect the reduced hours available to Miss B's daughter between November 2023 and the end of term in July 2024 and the missing SEN provision. Those amounts, totalling £4,000 should be in addition to any other funding the Council uses for Miss B's daughter’s current education package. The Council has agreed to my recommendations.
46. Those amounts should be held and managed by the Council given it has a full care order for Miss B's daughter. I further recommended the Council consider the amount of education Miss B's daughter can cope with and seek some additional hours for her if it considers she is able to cope with them. I also recommended the Council send a reminder to officers dealing with children receiving part-time tuition to remind them of the need to ensure the number of hours provided is kept under review. The Council should make the arrangements to put in place the outstanding SEN provision within three months of my final decision. The Council has agreed to my recommendations.
47. Miss B says the Council delayed completing her daughter’s EHC Plan annual review. The evidence I have seen satisfies me the Council carried out a review of Miss B’s daughter’s EHC Plan in November 2022. That means the Council should have carried out a further review in November 2023. However, the Council did not carry out the review until June 2024. I appreciate there have been complicating factors in this case given the issues with Miss B’s daughter’s education. However, the code of practice is clear about the timescales required for reviews. The fact that education difficulties occurred in this case does not mean the Council did not need to follow the code of practice. The delay completing the annual review is therefore fault.
48. I cannot say though whether that led Miss B’s daughter to miss out on any provision given I do not know if the Council intends to amend the EHC Plan. In those circumstances I consider Miss Bs injustice is limited to her frustration and her uncertainty about whether her daughter would have received additional provision had the Council complied with the timescales. To remedy that injustice I recommended the Council apologise and pay Miss B £300. I further recommended the Council write to Miss B, if it has not already done so, to confirm its intention following the review in June 2024 as the timescales have not been met for that either. The Council has agreed to my recommendations.
49. Miss B says the Council has failed to respond to her communications. In contrast the Council says it has had limited communication with Miss B and therefore denies it has failed to respond to her. Having considered the documentary evidence I have not identified any failure to respond to Miss B’s correspondence. I therefore have no grounds to criticise the Council.
50. Miss B says the Council has not put in place the additional provision needed to meet her daughter’s needs such as the animal care farm she asked for. The evidence I have seen satisfies me the Council made a referral to the animal care farm. However, it is clear the animal care farm told the Council it could not put in place provision for Miss B’s daughter. I am satisfied the Council told Miss B that. As the animal care farm said it could not make the provision I have no grounds to criticise the Council.
51. I am aware though Miss B says she has also had to fund additional activities for her daughter such as horse riding, swimming and trampolining. Miss B says the Council has failed to cover those costs and she has had to pay for those activities. The documentary evidence suggests the Council identified the need for those types of activities in March 2024 to fill in some of the gaps in the week. However, there is no evidence the Council put those into place or responded to Miss B’s request for funding for those activities before the summer term in 2024.
52. Given it appears to have been the Council’s intention to make arrangements for that provision to be in place I consider the Council at fault here. I welcome the fact the Council has paid Miss B for the activities for the summer term 2024. However, it is not clear whether Miss B has paid for those activities before that date. I therefore recommended the Council liaise with Miss B and consider making a further payment to her to reflect any costs she incurred before the summer term 2024. I also recommended the Council discuss with Miss B the options going forward for putting that provision in place. The Council has agreed to my recommendations.
53. Miss B says the Council has not told her about any education provision arranged to start in September 2024. The Council say the same provision will continue from September 2024 and it has told Miss B that. I have seen no evidence of communications between Miss B and the Council about the provision in place from September 2024. I therefore cannot be satisfied the Council told Miss B what provision would be in place. That is fault. I recommended the Council apologise for that. The Council has agreed to my recommendation.

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Agreed action

54. Within one month of my decision the Council should:
• apologise to Miss B for the distress and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• create a budget of £4,000 for the Council to manage to use for Miss B’s daughter's educational benefit;
• pay Miss B £300;
• discuss increasing the hours of tutoring Miss B’s daughter can cope with and then put those hours in place;
• remind officers about the need to keep the number of hours of tuition in place for children receiving only part-time hours under review;
• discuss the additional provision Miss B says she has put in place for her daughter and decide whether that can be arranged separately or whether the Council should pay Miss B to reflect the costs for what she has put in place going forward;
• discuss with Miss B whether she had put in place that additional provision before summer term 2024 and, if she has and can evidence her costs, consider making a payment to her to cover that;
• write to Miss B, if it has not already done so, to tell her its decision following the annual review in June 2024.
55. Within three months of my decision the Council should put in place the provision in Miss B’s daughter’s EHC Plan referred to in paragraph 42.

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Final decision

56. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman