Summary: Mr X complains that the Council delayed in finding a suitable residential school for Mr Y and failed to make appropriate education provision for him. The delay of 16 months in finding a suitable residential placement for Mr Y is service failure and fault. The Council is also at fault as it failed to make sufficient education provision for Mr Y which meant he did not receive enough education and caused distress to Mr and Mrs X. The Council will remedy the injustice to Mr Y by making a payment to him to acknowledge he did not receive sufficient education provision and a payment to Mr and Mrs X to acknowledge the distress caused.

The complaint

1. Mr X complains that the Council:

• delayed in identifying a suitable residential school and placement for Mr Y following the ending of his placement at a residential school in summer 2021.
• failed to make appropriate alternative education provision for Mr Y and failed to deliver the provision set out in his Education Health and Care Plan.

2. As a result, Mr Y did not receive suitable education for a significant period and Mr and Mrs X were caused significant distress.

Back to top

What I have and have not investigated

3. I have investigated the actions taken by the Council to find a residential school placement for Mr Y and the education provided to Mr Y from June 2021 to October 2022

Back to top

The Ombudsman’s role and powers

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. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to. 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)
6. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

How I considered this complaint

9. I have:

• considered the complaint and the information provided by Mr X;
• discussed the issues with Mr X;
• made enquiries of the Council and considered the information provided in relation to this complaint and complaint 22005444;
• invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and guidance

Education Health and Care Plans

10. A child with special educational needs may have an Education, Health and Care (EHCP) This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
11. The council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. Full time study programmes for post 16 placements should be a minimum of 580 planned hours per academic year. This is a minimum of 16 hours per week.

Back to top

What happened

13. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.

Background

14. Mr Y is a young person and has autism, severe learning difficulties and epilepsy. He is accommodated by the Council under section 20 of the Children Act 1989. This is a voluntary agreement with Mr and Mrs X. Mr Y has an EHCP. Section F of Mr Y’s EHCP applicable up to 7 September 2022 set out teaching strategies for Mr Y. Mr Y’s EHCP was amended in 2022 and a final EHCP was issued on 8 September 2022. This included speech and language (SALT) sessions.
15. Mr Y attended a residential school until May 2021 when the placement ended. Mr Y then attended another residential school but the placement broke down. In June 2021 the Council placed Mr Y in accommodation with a care package. The Council moved Mr Y to supported accommodation in October 2021.
16. In October 2022 Mr Y moved to a residential college.

Search for suitable residential school placement

17. The Council started to look for a residential placement for Mr Y in May 2021. In June 2021 the Council identified places at two residential schools for Mr Y. Mr and Mrs X declined one place as they considered the school was unsuitable for Mr Y due to its proximity to a major road. The other school was considered to be a good match for Mr Y and a place was due to be available in August 2021. The school then notified the Council that it could not take any new admissions due to the outcome of an Ofsted inspection.
18. The Council’s records show it contacted other schools in September 2021 to see if they had places and meet Mr Y’s needs. All said they were unable to offer a place.
19. In late December 2021 the Council formally consulted a college on whether it could admit Mr Y. The Council chased the college for a response in January 2022 and it is not clear if it received a response.
20. In February 2022 the Council consulted four colleges. All said they were unable to meet Mr Y’s needs. In March and April 2022 the Council consulted nine schools and colleges, including Mr and Mrs X’s preferred college. Mr and Mrs X’s preferred college said it could offer a residential and educational place for Mr Y. However, it could not offer the place immediately as it was building the residential provision and it needed to be registered with the Care Quality Commission (CQC) to provide the residential place.
21. The Council consulted a further four colleges and schools in mid April 2022. One college said it could not meet Mr Y’s needs. Another said it might be able to offer a place but this would be subject to CQC approval due to Mr Y’s age.
22. In May 2022 the Council consulted further colleges and schools. The colleges and schools could not offer places for September 2022. A further college offered to assess Mr Y in August 2022.
23. Mr and Mrs X’s preferred college completed its registration with CQC and offered a place to Mr Y from late October 2022. Mr Y is now resident at the college.
24. In 2022 Mr and Mrs X made a complaint to the Council which included their concerns that Mr Y had been out of school for a year and there was no sense of urgency by the Council to find another place. The Council considered the complaint through its two stage complaints procedure. It acknowledged Mr Y had been out of school for a long time but did not find evidence to show the Council had not been proactive throughout this time.

Provision of education

25. The Council made a referral for tuition for Mr Y in late June 2021. The referral form shows this was for six hours per week to be delivered over two to three days at Mr Y’s placement. The tuition was to include activities such as learning independent living skills. I understand the tuition started in July 2021.
26. In March 2022, Mr and Mrs X complained that the Council was not providing sufficient education to Mr Y and the provision in his EHCP. They also complained the tutors were not providing six hours per week as agreed. The Council considered the complaint through its two stage complaints procedure. It acknowledged that six hours of tuition per week was low and it had contacted the tuition provider to increase the hours. In its stage two response the Council said there was no evidence to show Mr Y received less than six hours per week.
27. The Council’s records show officers contacted the tuition provider in April 2022 to ask if it could increase the hours of tuition. It chased the provider for a response in late April 2022. The Council did not receive a response and it did not pursue the matter further.
28. The Council has provided the record of tutors’ attendance at Mr Y’s placement between February and early June 2022. This records tutors sometimes had to end sessions early due to Mr Y’s behaviour or an incident at Mr Y’s placement. It also shows there were occasions where the tutors found Mr Y not to be in when they called or they were unable to attend. Mr and Mrs X have provided extracts from Mr Y’s placement’s visitors book for the periods during April to September 2022 to show tutors did not attend on some dates claimed by the tuition provider or sessions were short.
29. In April 2022, at a Best Interests meeting, Mr and Mrs X’s advocate raised Mr Y was not receiving six hours of tuition per week. The records of the Council’s quality monitoring visit in June 2022 noted tutors were visiting Mr Y on three days per week for sessions of 45 minutes.
30. In response to my enquiries the Council has acknowledged it did not ensure all the provision in section F of Mr Y’s EHCP was delivered while he was out of school. Mr Y was entitled to a minimum of 16 hours per week of post 16 education. It has offered a remedy of £2992.50 to acknowledge there was a shortfall of nine hours per week for 14 and a quarter months. The Council has reached this figure by suggesting a payment of £350 per month but reduced by two fifths to recognise Mr Y received six hours of tuition per week.
31. The Council has also offered a payment of £300 to Mr and Mrs X to acknowledge the failure to make the provision has put them to avoidable time and trouble.

Analysis

Placement

32. The Council did not place Mr Y in a residential school for approximately 16 months after his placement broke down in May 2021. The evidence shows the Council actively looked for residential school placements between June 2021 and August 2022. The evidence also shows Mr and Mrs X declined a place as they did not consider the school would be suitable for Mr Y.
33. But the delay in finding Mr Y a suitable school place was excessive. I am mindful this was caused by external factors beyond the Council’s control. The Council was unable to secure a place from June 2021 as the schools and colleges consulted could not meet Mr Y’s needs, did not have places or could not accept Mr Y due to an adverse Ofsted inspection. The delay in Mr Y being able to take up his place at Mr and Mrs X’s preferred college was due to building works and the need for the college to register with CQC. These delays were beyond the Council’s control. But the time taken to find Mr Y a suitable residential school place amounts to service failure and is fault.

Tuition

34. The Council is at fault as it failed to ensure Mr Y received sufficient education provision and the provision set out in section F of his EHCP while it was waiting to find a suitable residential placement. The Council provided six hours of tuition per week as an interim measure while it found a residential school placement for Mr Y. It became clear in September 2021 that this process could take some time when the expected placement fell through. The Council should therefore have reviewed whether it should increase the tuition in September 2021. The Council only did this in April 2022. This is fault which meant Mr Y did not receive sufficient education.
35. The Council sought an increase in the tuition hours in April 2022 but did not actively pursue the increase when the provider did not respond to its request after the Council’s initial chaser. This is fault which again meant Mr Y did not receive sufficient education.
36. The Council has acknowledged that it failed to ensure Mr Y received the provision set out in section F of his EHCP and suggested a remedy. The question for me is whether the remedy is sufficient to acknowledge that Mr Y missed education provision and the provision set out in his EHCP.
37. The Council’s proposed remedy takes account that Mr Y did not receive 16 hours of education per week for 14.25 months. I consider the propose remedy of £350 per month reduced by two fifths is in accordance with our guidance on remedies.
38. However, I do not consider the proposed remedy takes into account all the injustice caused to Mr Y by the Council’s faults. The remedy does not take into account that there is no evidence to show Mr Y received any education in June 2021.The Council should therefore make an additional payment of £350 to acknowledge this injustice.
39. Mr and Mrs X have said Mr Y did not receive six hours of tuition per week but this is disputed by the Council. I do not consider further investigation will establish exactly how many hours of tuition Mr Y received per week between July 2021 and October 2022. But on balance, I consider there is evidence to show Mr Y did not always receive six hours of tuition per week. The extracts from the visitors book provided by Mr and Mrs X show some tuition visits were short. Concerns raised by Mr and Mrs X’s advocate in April 2022 and the Council’s quality monitoring visit in June 2022 also show Mr Y was not receiving six hours of tuition per week. An email between the Council and tuition provider in July 2022 suggests some sessions were missed as the tutor was not available. So there has to be doubt that Mr Y consistently received six hours of tuition per week. The Council should therefore make an additional payment of £500 to acknowledge Mr Y missed further provision as he did not always receive six hours of tuition per week.
40. The provision in section F mainly concerned teaching strategies for the EHCP in force up to 7 September 2022. But the amended EHCP issued on 8 September 2022 also included SALT provision. Mr Y missed out on this provision until he started his new residential school some seven weeks later which will have disadvantaged him. The Council should remedy this injustice by making a payment of £150 to Mr Y to acknowledge this disadvantage.
41. I have also considered the injustice caused to Mr Y by the delay in finding a residential school placement for him. Mr Y was living in a care placement at this time which is subject to a separate complaint. I consider the key significant injustice to Mr Y relevant to this complaint was caused by the failure to provide sufficient education to him. This injustice can be remedied as set out above and it is not proportionate to seek an additional remedy for the delay in providing a residential school place.
42. I consider the suggested payment of £300 to Mr and Mrs X to acknowledge they have been caused distress by the faults by the Council is appropriate and proportionate. It is also in accordance with our guidance on remedies.

Back to top

Agreed action

43. The Council will:
1. send a written apology to Mr and Mrs X and Mr Y to acknowledge the distress caused to them by not fully making the provision set out in section F of Mr Y’s EHCP and not making sufficient education provision for Mr Y between June 2021 and October 2022.
2. make a total payment of £3992.50 to Mr Y to acknowledge he did not receive all the provision in section F of his EHCP and sufficient educational provision between June 2021 and October 2022.
3. make a payment of £300 to Mr and Mrs X to acknowledge the distress caused.
4. review its procedures for commissioning tuition to children/young people out of school to ensure it regularly reviews the provision to ensure it is meeting their needs. The Council should explain to the Ombudsman how it has improved its performance in this area.
44. The Council should take the action at a) to c) within one month of the final decision. It should take the action at d) within three months of the final decision. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

45. Fault causing injustice to Mr and Mrs X and Mr Y.

Back to top

Investigator's decision on behalf of the Ombudsman