Summary: Mrs B, complained the Council did not secure suitable education or education, health, and care provision for her son. Mrs B says because of this, her son did not take any exams and did not gain any qualifications. We found fault with the Council for failing to secure the speech and language provision in her son’s education, health, and care plan. Because of this fault, Mrs B’s son missed provision. The Council will apologise to Mrs B and her son for this fault and backdate his personal budget to make up the missed speech and language therapy.

The complaint

1. The complainant, who I will refer to as Mrs B, complained the Council did not secure suitable education or education, health, and care (EHC) provision for her son, D. Mrs B says because of this he missed education and EHC provision, did not take any exams, and did not gain any qualifications.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I investigated this complaint from when the SEND tribunal issued its final order in November 2022 to July 2023. July 2023 was the end of the academic year and the month the Council sent its final complaint response to Mrs B.
6. If Mrs B has concerns about the actions of the Council from August 2023 onwards, she can make a new complaint to the Council.

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How I considered this complaint

7. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
8. Mrs B and the Council had the opportunity to comment on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and Guidance

9. 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.
10. The education provided by the council must be full-time unless the council decides 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) 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’)
11. 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)
12. A child with special educational needs may have an education, health and care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The council has a duty to secure the specified special educational provision in an EHC plan 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)
13. For young people moving between post-16 institutions, the review process should normally be completed by 31 March where a young person is expected to transfer to a new institution in the new academic year.

Council complaint procedure

14. The Council has a two-stage complaint procedure. At both stages it aims to respond within ten working days of receiving the complaint or the request for escalation to the next stage.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. Mrs B’s son, D, has an EHC plan. In the academic year 2022 to 2023 he was in Year 11. The Council issued a final EHC plan in December 2020 for D. Mrs B appealed the content of the plan to the SEND tribunal.
17. The SEND tribunal issued its final order in November 2022 and named School 1. School 1 confirmed it could meet all D’s support needs and provide a post-16 placement. The Judge commented in the final order, ‘any expectation of him [D] completing GCSEs at this stage was unlikely to be met’. The Judge also noted by joining School 1 it would ‘negate the need for a further transition at post 16 for [D]’.
18. In December 2022, the Council issued a final amended EHC plan for D, naming School 1. The plan said D needed to attend a specialist school for pupils with social, emotional, and mental health difficulties. Most of the education, health, and care provision in D’s plan was to be provided by staff at School 1. The plan also included input from speech and language therapy.
19. D started at School 1 in January 2023. School 1 arranged a period of transition for D from part-time to full-time provision. Provision included lessons on plastering, bricklaying, and joinery. The Council offered D support from alternative Providers 1 and 2 during the transition. Mrs B declined support from these Providers.
20. In February 2023, School 1 emailed Mrs B D’s timetable. It said it was still waiting for occupational therapy and speech and language therapy to confirm their input. It said it would email the Council about this.
21. In March 2023, School 1 gave the Council six weeks’ notice of ending D placement, his placement ended in April 2023.
22. School 1 held an EHC plan review meeting in March 2023. It reported D had fixed term exclusions because of being unsafe and breaking the law while in school. It advised D was trying to sabotage his placement as he did not want to attend. School 1 said it could not meet D’s needs, ‘We are unable to meet need if a child and young person does not wish to have their needs met by the school and either refuses to attend or when in attendance mostly behaves in ways that is a risk to self and others.’
23. In May 2023, the Council offered D a place at a pupil referral unit, Provider 3. Provider 3 has provision for students with emotional and behavioural difficulties. Mrs B said D would not attend Provider 3. She said she did not want D to mix with students involved in criminal behaviour because he would be at risk of offending.
24. The Council agreed for D to receive 10 hours alternative provision. Mrs B asked if D could have a placement with an alternative provider he had worked with before. The Council contacted Provider 1 in May 2023. Provider 1 said its delivery style was not suitable for D because there was no parental control. It said a placement at a pupil referral unit would be the best option.
25. In June 2023, the Council offered D a placement with Provider 2 on a summer programme. D declined the offer.
26. In June 2023, the Council secured D a place at Provider 4. Provider 4 offers placements to students with emotional, social and behaviour disorders, special educational needs, and those at risk of offending. Provider 4 arranged an induction for D. The following day D told the provider he would not attend the placement. Mrs B told Provider 4, D did not want to attend any educational setting and he wanted to go into construction. Provider 4 said it would work with D to achieve functional skills qualifications and could support him to apply for a construction course. Mrs B said D would not attend and he would only engage in home tutoring.

Complaint

27. Mrs B complained to the Council in March 2023 that her son was not receiving his EHC provision and his EHC review was late. The Council responded in March 2023 and said a review of D’s EHC plan was scheduled. It asked her if she wanted to submit her concerns as a complaint. Mrs B said she did.
28. The Council responded in May 2023. It apologised for its delay sending her its response. It did not uphold her complaint. It said the SEND tribunal named School 1 in D’s EHC plan with the intent he would stay there post 16 and advised an annual review was held in March 2023 on this basis. It said unfortunately, following several suspensions, School 1 ended D’s placement in April 2023 and the Council was working with her to identify alternative post 16 provision. It advised provision for D’s final term in year 11 had been identified and shared. Mrs B asked the Council to consider her complaint at stage two.
29. Mrs B complained in June 2023 that D was not receiving education provision and about comments in his EHC review minutes. The Council responded in June 2023. It did not uphold her complaint. It said it offered D full-time provision from when his placement at School 1 broke down and it had also offered alternative provision, but D chose not to engage. It said it had checked the minutes of D’s EHC review and considered them to be accurate and invited her to say what in the minutes she thought was not. Mrs B asked the Council to consider her complaint at stage two.
30. The Council responded to both Mrs B’s complaints at stage two in July 2023. It apologised for its delay responding to her first complaint at stage two and explained this was because it made sense to address both complaints together. The Council explained provision at Provider 3 was available for D to access immediately after his placement at School 1 ended and it remained available throughout the summer term. It said it also offered alternative provision to support D back into education and a place on a construction summer programme. It said it was committed to collaborating with Mrs B and D to secure post 16 provision. It advised it would agree a personal budget for D to enable the speech and language therapy in D's EHC plan to be delivered by her chosen therapist. The Council partly upheld Mrs B’s complaint because there had been some delays in communication. However, it said it was confident it had met its legal duties.

Analysis

31. When Provider 1’s placement ended, the Council offered D a place at place at a pupil referral unit, Provider 3. Educational provision at Provider 3 was available and accessible to D throughout the summer term. Therefore, the Council met its duty under section 19 of the Education Act 1996. When Mrs B declined this provision, the Council continued to work with her and D to support him back into education. It offered him alternative provision and a place on a summer construction programme. In June 2023, the Council made a further offer of an educational placement, with Provider 4, which Mrs B and D also declined.
32. D’s EHC plan included speech and language therapy. I have seen no evidence this was secured between January and July 2023. The Council has a duty to secure the provision in an EHC plan and not doing so was fault. This fault meant D missed provision. At stage two of the Council’s complaint response, the Council agreed to arrange a personal budget for D for speech and language therapy. The Council should backdate D’s personal budget to January 2023 to make up his missed speech and language provision.
33. D’s EHC plan review was held in March 2023. Until this point, it was expected D would continue at School 1 post 16 and would not transfer to a new institution in the academic year 2023/24. Therefore, the 31 March deadline for the review process to be completed was not relevant.
34. There was considerable delay with the Council’s complaint responses. The Council took almost two months to respond to Mrs B’s first complaint at stage one and two of its complaint procedure. The Council’s responses to Mrs B’s second complaint were also delayed. These delays caused Mrs B injustice as she was caused unnecessary time and trouble pursuing her complaints.

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Agreed action

35. Within one month of the final decision, the Council will:
• Apologise to Mrs B and D for the injustice caused by its failure to secure the speech and language therapy in D’s plan.
• Backdate D’s personal budget for speech and language therapy to January 2023.
• Pay Mrs B £150 for the injustice caused by the Council’s delays responding to her complaints.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation and uphold Mrs B’s complaint. Mrs B and D were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman