Summary: Miss X complains the Council did not deal with her daughter’s education properly. The Council did not make full educational provision and did not communicate with Miss X effectively. Miss X suffered avoidable distress and her daughter lost educational provision. The Council should pay Miss X £5,750.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council has not dealt properly with her daughter’s education because:

• It has failed to make s19 alternative provision since February 2023;
• It has delayed dealing with her Education Other Than At School (EOTAS) request; and
• It has failed to communicate fully with her as emails were not replied to.

2. Miss X says she has suffered avoidable distress and her daughter has missed educational provision.

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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. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. 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.
6. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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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How I considered this complaint

9. I spoke to Miss X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
10. Miss X and the Council 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

11. 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. 
12. 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).
13. 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. 

14. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.
15. 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 section 19 or alternative education provision.
16. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 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)
17. 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))
18. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened?

19. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
20. The Council completed an Education Health and Care Needs Assessment (EHCNA) for Y in early 2023.
21. During the EHCNA Miss X asked the Council to provide EOTAS for Y.
22. In February 2023 the Council agreed to issue an EHC Plan for Y and agreed to provide an EOTAS package in principle.
23. Miss X sent the Council a breakdown of requested EOTAS provision for Y in March 2023. Y was provided with limited alternative provision from mid March 2023. At this time she was still on-roll at her school.
24. In May 2023 the Council issued a final EHC Plan for Y.
25. In June 2023 the Council agreed a continuation of EOTAS and described provision that was being made for the remainder of the academic year.
26. Miss X asked the Council to amend the EOTAS provision it had agreed to make.
27. During the school holidays Miss X requested that Y should re-integrate to her school from September 2023.
28. The re-integration failed and Miss X asked the Council to revert back to the agreed EOTAS package in January 2024.
29. The Council agreed to revert back to EOTAS at the end of January 2024.
30. Miss X complained to the Council in March 2024. The Council upheld Miss X’s complaint.

Analysis

31. The Council accepted in its complaint response that there had been delays in finalising Y’s EOTAS provision and apologised for this.
32. During my investigation the Council said that it agreed:
• There was a delay in the EOTAS package being set up as there was a delay in the EHC Needs Assessment process being completed.
• There was a gap in Y’s provision from December 2023 to May 2024. The Council said it, “recognises its responsibility for the provision not being in place and sincerely apologises for this. It is recognised that Y’s casework transferred between several colleagues within the Council for logistical reasons which led to inconsistencies in the support and communication provided to Miss X and Y.”
33. The Council has offered a payment of £3000 to acknowledge the impact of this on Y and her mother.

February 2023 to May 2023

34. The Council made provision for Y from March 2023. Although this was limited in scope, Y had been unable to engage in any setting previously.
35. The Council agreed to increase the number of hours provision in April, following a request from Miss Y.
36. On the balance of probabilities, the provision made at this time was appropriate and suitable. This is not fault by the Council.

May 2023 to September 2023

37. Y’s EHC Plan stated a mix of EOTAS provision from two settings along with flexible tutoring. The Council’s resources panel confirmed that “EOTAS and flexible tutoring through PB is being offered for the remainder of this academic year.”
38. In June, the Council clarified with Miss X what provision was actually being made. Only the provision at one of the settings stated in Y’s EHC Plan was being delivered at this time. This is fault by the Council. Y missed educational opportunity that was explicitly stated in her EHC Plan for several weeks at the end of term.

September 2023 to November 2023

39. Emails between the Council and Y’s school in March and April 2024 show that Y’s reintegration failed relatively quickly and that she did not attend school after September 2023.
40. The Council believed it had provided additional funding for Y to her school from mid October 2023. Y’s school said it was not aware of Y’s EHC Plan. Y’s school had not made any provision for her following the failed reintegration.
41. The partial provision which began to be delivered in March 2023, continued until November 2023.
42. The Council missed an opportunity to identify that educational and special educational needs provision was not being made through Y’s school which contributed to a significant delay in the provision being eventually made.
43. Therefore, Y only received part of the provision that should have been delivered for her during this time. This is fault by the Council. Y missed special educational needs provision and educational opportunity over three months.

December 2023 to July 2024

44. As outlined above in paragraph 33, the Council accepts that there was a gap in provision during this time period.

Is the Council’s proposed remedy appropriate?

45. I have identified further fault and injustice between May 2023 and November 2023, which is not covered by the Council’s proposed remedy.
46. The Council’s proposed remedy for the period December 2023 to July 2024 (over two terms), reflects a payment of approximately £1,250 per term.
47. Where fault has resulted in a loss of educational provision, we will usually recommend a symbolic remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
48. The remedy proposed by the Council therefore falls at the lower end of this range.
49. I do not consider the Council’s proposed remedy to be appropriate.
50. I have taken into account the fact that Y missed educational provision, her special educational needs as detailed in her EHC Plan, her school attendance, the delays to provision and an impact statement from Miss X in determining an appropriate remedy.
51. As a result of previous investigations the Council reminded staff of its duty to provide all the special educational needs provision set out in a child, or young persons, Education, Health, and Care plan without delay. So, I have not repeated this recommendation.

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Action

52. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Miss X and Y for the full time period Y missed provision. 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.
• Pay Miss X £5,500 in respect of Y’s missed educational provision, comprising:
1. £500 for the period May to September 2023;
2. £1,000 for the period September to November 2023; and
3. £4,000 for the period December 2023 to July 2024.
• Pay Miss X £250 in respect of avoidable distress caused by poor communication.
53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I have found fault by the Council, which caused injustice to Miss Y and Y. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman