Summary: Mr X complained about how the failed to provide a suitable education for his son, Y, from September 2023. There was fault in how the Council arranged tuition for Y, failed to keep that tuition under review and took too long to reassess his needs. It also did not follow its policy when restricting how Mr X could contact the Council. The Council agreed to apologise, pay Mr X and Y a financial remedy and review the restrictions it has placed on Mr X’s contact. It also agreed to remind its staff of the importance of following its unreasonable behaviour policy.

The complaint

1. Mr X complains the Council failed to provide a suitable education for his son, Y, from September 2023. He says the Council;
• did not properly review Y’s Education Health and Care (EHC) plan and named an unsuitable education placement in July 2023;
• delayed arranging alternative education for Y when the named placement broke down;
• did not arrange enough hours of alternative education for Y or a broad enough range of subjects;
• took too long to reassess Y’s needs after it agreed to do so in December 2023;
• refused to meet with him to discuss Y’s draft EHC plan;
• issued an unsuitable EHC plan which does not provide enough tuition for Y; and
• was rude to him and dismissed his concerns.
2. As a result, Mr X says Y has missed out on more education and opportunities, and this has affected Y’s mental health. He wants the Council to arrange suitable education for Y and to pay him a substantial financial remedy.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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)

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What I have and have not investigated

9. I have not investigated, how the Council reviewed Y’s EHC plan or decided what education placement to name in July 2023. Mr X had the right to appeal the content of that plan, including the named placement, to the SEND Tribunal. I am satisfied it would have been reasonable for him to have used his right to appeal.
10. I have also not investigated how the Council reassessed Y’s special educational needs after it agreed to in December 2023, including any failure to meet with Mr X to discuss the draft plan and how it decided what education placement to name in that plan. Mr X had appeal rights about the content of the amended issued and it would have been reasonable for to use his right to appeal.
11. I have investigated the other parts of Mr X’s complaint, including the delay in the reassessment of Y’s needs.

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How I considered this complaint

12. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided;
• our investigations into previous complaints Mr X made about earlier periods of Y’s education; and
• relevant law and guidance.
13. Mr X and the Council had an opportunity to comment on drafts of my decision. I considered their comments before making a final decision.
14. 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 found

Education health and care plans

15. 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. 
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). 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 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. 

18. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
19. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
20. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
21. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.
22. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue an EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

23. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
24. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

Alternative education provision

25. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
26. 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)
27. For young people over compulsory school age but under 18, the Council has a power, but not a duty, to provide alternative education provision. When decided whether and how to use that power, councils must have regard to the statutory guidance.
28. The statutory guidance says that councils must ensure that any education provided is suitable and that they should keep this under review.

Unreasonable behaviour

29. We recognise that behaviour by some complainants can be unreasonable and that councils can take steps to manage such behaviour from people using their services.
30. The Council has a policy which sets out how it manages such behaviour by complainants. The policy says that, before imposing restrictions on how someone can contact or communicate with the Council it will:
• warn someone about the behaviour the Council considers unreasonable;
• ask them to change the behaviour; and
• explain the action the Council might take if their behaviour does not change.
31. When imposing restrictions, the Council’s policy says it will explain:
• what behaviour the Council considers to be unreasonable and why;
• the action it will be taking;
• how long it impose any restrictions; and
• how the person can challenge its decision.

What happened

32. The following is a summary of the key events relevant to the parts of Mr X’s complaint I can investigate. It is not intended as a full account of everything that happened.
33. Mr X’s son, Y, has special educational needs and has an Education Health and Care (EHC) plan from the Council.
34. The Council issued an amended final EHC plan for Y in July 2023, which said Y should attend a tailored post-16 education placement.
35. Y started at that placement in September 2023. However, after the first week Mr X decided that the provider’s approach was not suitable for Y. The provider tried to work with Mr X to address his concerns, but was unable to do so. The provider told the Council in late September 2023 that it would no longer be able to support Y and Y received no further education from the provider after that.
36. The Council held a review of Y’s EHC plan in November 2023, at which time Mr X asked the Council to reassess Y’s needs. The Council agreed to Mr X’s request just over a week later.
37. The Council referred Y for 10 hours a week of tuition in early January 2024, and the tuition started at the end of the month.
38. Mr X raised concerns about the number of hours and the quality of the tuition with the tuition provider and the Council. Mr X said Y was never offered the full 10 hours a week and he also had concerns about the approach of some of the tutors.
39. The tuition provider tried to address Mr X’s concerns, but was not able to do so and the relationship broke down by the end of the school year in June 2024.
40. Mr X complained to the Ombudsman in July 2024. Shortly after this the Council issued a further amended final EHC plan following the reassessment.

My findings

41. I have investigated what happened between September 2023, when Y started at the placement named in his July 2023 EHC plan, and July 2024, when the Council issued a new, amended final EHC plan for Y.

Alternative education after September 2023

42. Y reached school leaving age on the last Friday in June 2023. From that point, he was no longer of compulsory school age and so the Council no longer had a duty to provide him with alternative education under section 19 of the Education Act 1996. This also means it no longer had a duty to provide him with a “full-time education”.
43. However, the Council still had a power to provide alternative education for Y, and it still had a duty to secure the provision in his EHC plan. It also had a duty to consider Government guidance on alternative provision, if it decided to arrange any for Y.
44. The Council knew that the placement it arranged had broken down in late September 2023. I appreciate that Mr X disagrees the placement was ever suitable for Y. However, he had the right to appeal that decision, so I can only look at missed education from the point the Council was aware the placement was no longer suitable. I am satisfied that was in late September 2023, when the Council confirmed to Mr X that the provider could no longer meet Y’s needs and it would arrange a review of his EHC plan.
45. However, the Council did not refer Y for alternative education until early January 2024. Had the Council referred Y, shortly after it knew the placement had broken down, I consider Y would have started his online tuition from October 2023; around four months earlier than he did. That delay was fault which meant Y missed out on four months of education in late 2023 and early 2024.
46. The Council arranged for Y to have 10 hours a week online tuition. It is not the Ombudsman’s role to decide whether this was the right amount of type of tuition. That was the Council’s responsibility. The Ombudsman’s role is to consider whether the Council properly made its decision about the amount and type of tuition to arrange.
47. The Council has not provided any evidence to show how it decided that 10 hours a week was the right amount of education for Y, or that Maths and English was a wide enough range of subjects.
48. While it no longer had a duty to arrange “full-time education” for Y, the Council should still have properly assessed how much education it needed to arrange, or would be suitable for Y. Statutory guidance also says that councils should arrange appropriate education covering maths, English and science (including IT). The Council’s failure to properly consider how much and what education to arrange was fault.
49. I am also satisfied the Council failed to monitor that education and to keep it under review. Evidence from the tuition provider shows that between January and July 2024, Y seldom received the full 10 hours the Council had arranged. While some of this shortfall was caused by Y not attending, his ability to engage or his behaviour, there was still a shortage of hours provided by the tutoring company. While the company tried to address some of the shortfall, the evidence shows it was not able to. The failure to provide all the hours the Council had arranged was also fault.

Education Y missed out on

50. The evidence shows that when the Council arranged 15 hours a week tuition from September 2024, Y took part in most of this. However, there is also evidence Y struggled to engage with education in both 2023 and 2024.
51. On the balance of probabilities, I think it is unlikely Y would have been able to take part in full-time education.
52. Based on this I am satisfied that Y missed out on:
• any tuition between October 2023 and January 2024, inclusive; and
• around two thirds of the tuition he could have taken part in between February and July 2024.
53. Considering Y’s special educational needs, the amount of education he likely could have taken part in, the stage of his education at the time and that Y was already behind on his education, I am satisfied the following are suitable remedies to recognise the education Y missed out on:
• the equivalent of £1,500 a term between October 2023 and January 2024; and
• £1000 a term for the rest of the 2023/24 school year between February and July 2024.

Reassessment of Y’s needs

54. Mr X asked the Council to reassess Y’s needs at the end of November 2023. The Council confirmed it agreed to this just over a week later. That was within the 15 days it had to make that decision.
55. After deciding to reassess Y’s needs in early December 2023, the Council should have issued a final amended EHC plan within 14 weeks; by mid-March 2024. However, it did not issue a final amended EHC plan until late July 2024; 20 weeks late. That delay was fault.
56. I cannot say whether, if the Council had issued the final EHC plan when it should have done, Y’s education would have been any different. Y has not yet started the placement the Council ultimately found for him, and there is an established pattern of Y’s placements breaking down shortly after they have started. However, the delay did cause Mr X and Y avoidable frustration, which I am satisfied was more significant for them due to the previous failures we found in earlier investigations.
57. The Council has issued a final EHC plan following the reassessment in July 2024. If Mr X is not happy about the content of that plan or the named placement, he has the right to appeal to the SEND tribunal about this.

Council’s communication with Mr X

58. I have not seen any evidence the Council was rude to Mr X or that it ignored his concerns. Even in a recorded telephone call Mr X sent me, I consider the Council officer was doing their best to remain professional in response to Mr X’s frustration and questioning.
59. Mr X was clearly frustrated and angry at what he considered to be the Council’s inaction in arranging education for Y. We recognise anger is an understandable, and in some ways acceptable, reaction to being failed by a public body. In Mr X’s case, there is a record of the Council failing to meet Y’s educational needs.
60. However, Mr X’s approach to the Council was, at times, confrontational. Although it understood the source of Mr X’s frustration, the Council found some of Mr X’s behaviour to be unacceptable and beyond what might be reasonably expected by a public service. This included both how Mr X spoke and wrote to the Council, and how he recorded phone calls with Council officers.
61. The Council decided to informally restrict how he could contact its staff, and that all contact should be in writing. This was a decision the Council was entitled to make under its policy on managing unreasonable behaviour.
62. However, the Council failed to follow its policy when doing this. It did not warn Mr X about the restrictions it intended to impose, and it did not confirm the restrictions, the reasons for them or tell Mr X when it would review the restrictions. The failure to follow its policy was fault which meant that Mr X did not have the opportunity to change his behaviour before the Council put any restrictions in place.

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Agreed action

63. Within one month of my final decision the Council will:
• apologise to Mr X and Y for the impact of the failures in arranging and supervising alternative education for Y in early 2024 and reassessing Y’s special educational needs;
• pay Mr X £3,170 to recognise the education Y missed out on between October 2023 and July 2024. This is intended for Y’s future educational benefit;
• pay Mr X £500 to recognise the avoidable distress and frustration caused by the delays in completing its reassessment of Y’s needs;
• pay Mr X, on Y’s behalf, £300 to recognise the same distress caused to Y; and
• review the restrictions it has imposed on how Mr X can contact officers, ensuring that it follows it policy about this and informs Mr X of the restrictions, the reasons for them and when the Council will review any limits it has imposed.
64. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
65. Within three months of my final decision the Council will remind staff of the existence of the Council’s policy on managing unacceptable behaviour from members of the public and the importance of following that policy when imposing contact restrictions.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. I have completed my investigation. There was fault in how the Council arranged tuition for Y, failed to keep that tuition under review and took too long to reassess his needs. It also did not follow its policy when restricting how Mr X could contact the Council. The Council agree to apologise, pay Mr X and Y a financial remedy and review the restrictions it has placed on Mr X’s contact. It also agreed to remind its staff of the importance of following its unreasonable behaviour policy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman