Summary: The Council was at fault for delaying putting in place suitable education for Mr X’s son. The Council was also at fault for not putting in place the special educational provision in Mr X’s son’s Education, Health and Care plan while he could not take up his school placement. This caused injustice as Mr X’s son has missed out on education and special educational provision he should have received. The Council agreed to apologise, make a payment to recognise the loss of education and agree a plan with the child’s school to establish what measures can be put in place while a teaching assistant is recruited.

The complaint

1. Mr X complains the Council did not put in place appropriate support for his son following a decision from the First-tier Tribunal (Special Educational Needs and Disability).

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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. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. When considering complaints, if there is a conflict of evidence, 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. 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

7. Mr X raised concerns that the Council initially chose to name a school which he thought was unsuitable for his son and did not communicate with him properly about this. I have not investigated this as Mr X appealed to the SEND Tribunal about the school placement.

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How I considered this complaint

8. As part of this investigation I considered the information provided by Mr X and the Council. I discussed the complaint with Mr X over the telephone. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mr X and the Council and considered comments received in response.
9. 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

Law and guidance

10. 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 EHC plan 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 EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
12. 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. 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.
14. 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)

What happened

15. Mr X’s son, Y, has special educational needs. Y was supposed to start secondary school in September 2022.
16. In Y’s final year of primary school, the Council finalised an EHC plan and named a school placement Mr X disagreed with. This was a local maintained mainstream school. Mr X appealed to the SEND Tribunal. In November 2022, the SEND Tribunal ordered the Council to name Mr X’s choice of school, School B. This was after the Council had already agreed to name School B but did not tell the SEND Tribunal and allowed the hearing to go ahead. School B was a private independent mainstream school in another Council area. At this time Y was receiving Education Otherwise than at School (EOTAS) tutoring of 6 hours per week.
17. In late November 2022, the Council issued a new EHC plan for Y naming School B. The Section F provision in Y’s EHC plan included the following:
• Adult supervision all day.
• A toilet training programme for Y.
• Physical Education curriculum specific to Y’s needs.
• Ongoing targeted intervention group aimed at developing Y’s social interaction with peers.
• 6-10 hours per term of Speech and Language Therapy (SALT).
• Opportunities for Y to interact with younger children, such as helping them with computer skills.
• Working on a daily basis with less familiar peers or small groups within the classroom.
• Weekly planned sessions to develop Y’s social communication skills.
• A structured daily literacy programme either 1:1 or part of a small group.
• Key teachers and teaching assistants will have specialist training and experience in order to be able to meet Y’s range of speech, language and communication needs. They will have frequent opportunities for contact, support and training from the SALT Service.
18. Y was unable to start his placement at School B from November 2022. This was because School B needed to train staff to meet his complex needs, recruit a new teaching assistant for Y and it was not clear who would fund this. The school building was old and parts had no lifts so a plan was needed for Y. The school also had to store equipment for Y including oxygen.
19. Mr X contacted the Council as Y was only getting 6 hours of online tuition per week. Mr X asked the Council to increase Y’s tuition. In late December 2022, the Council’s Special Educational Needs Case Review Panel agreed to provide Y with 15 hours of EOTAS and 6-10 SALT sessions, however the SALT service could not provide sessions at home for Y.
20. In early February 2023, School B contacted the Council as it had concerns about funding a teaching assistant and training staff to look after Y. School B said it did not know who would fund the teaching assistant and training and until this was resolved could not start recruitment.
21. The Council increased Y’s tutoring to 15 hours per week from mid-February 2023.
22. Mr X complained to the Council in late February 2023. Mr X said the Council did not discuss options for a suitable secondary school placement with him and allocated Y a school which could not meet his needs. Mr X said he had to appeal to the SEND Tribunal to get this resolved. Mr X complained that since the SEND Tribunal’s decision, appropriate support has not been put in place for Y.
23. The Council responded to Mr X’s complaint in early March 2023. The Council said School B had concerns about providing the medical care needed for Y and it had to recruit the staff needed to support Y. The Council said it had put in place 15 hours per week of tuition for Y.
24. On 9 March 2023, Mr X asked the Council to consider his complaint at stage two. Mr X said he complained about the lack of action by the Council from January 2022 when he tried to contact it about naming a suitable secondary school placement for Y. Mr X said the Council ignored him when he raised concerns about the placement the Council initially named. Mr X said while the SEND Tribunal did name his school of choice, it was only now that the Council was looking at what was necessary to enable Y to start the placement and he has missed seven months of Year 7. Mr X said the Council had taken too long to increase the hours of EOTAS for Y.
25. In late March 2023, School B told the Council it could not recruit a teaching assistant for Y until the Council confirmed how Y’s EHC would be funded. School B said until it knew what it was funding it could not start recruitment.
26. The Council told Mr X in late March 2023 that it had contacted an independent Physiotherapist and Occupational Therapist who would visit Y at home and visit School B to assess what was needed to support Y attend School B.
27. In late April 2023, the Council told Mr X and School B it was in the process of approving the independent Physiotherapist and Occupational Therapist at its Special Educational Needs Case Review Panel. The Council said once the Physiotherapist and Occupational Therapist assessments had been completed it could move forward with Y’s placement at School B.
28. In early May 2023, the Council held a meeting with Mr X, School B and some professionals supporting Y. The notes from the meeting showed the Council had secured a private Physiotherapist and Occupational Therapist to assess Y. Y could not visit School B until these assessment had been completed. The Council agreed to fund 50% of the cost of the teaching assistant along with the NHS England Continuing Healthcare.
29. After the Council completed Physiotherapist and Occupational Therapist assessments, School B started to advertise for a teaching assistant in early July 2023.
30. Mr X had not received a response to his complaint after asking the Council to consider this at stage two. After contacting the Council about this, the Council provided its final complaint response to Mr X on 17 July 2023. The Council said:
• Its communication with Mr X about Y’s transition from primary to secondary school was not at the standard it expected and apologised to Mr X.
• It acknowledged its communication was not up to standard after it agreed to name Mr X’s school choice in October 2022 but allowed the SEND Tribunal hearing to go ahead. Council said this was because it employed an agency worker to deal with its SEND Tribunal work and they did not keep in regular communication with parents. The Council offered Mr X £300 to recognise the poor communication and delays caused.
• It had taken too long to increase Y’s home tutoring to 15 hours per week. The Council said EOTAS did not have sufficient staff so had to find staff through an independent provider which took 3 months.
31. In September 2023, Y started to attend School B for two lessons, four days per week totalling 8 hours per week. Mr X said he agreed to support Y while he attends School B until a teaching assistance is recruited. Y only attends for two lessons per day because this is what he can manage and the school have not recruited a teaching assistant who could support him one to one with his medical equipment. Y also is receiving 9 hours per week of EOTAS and a further 3 hours per week of tuition from another provider.

Analysis

32. Following the SEND Tribunal’s decision in November 2022, the Council issued Y with an updated EHC plan a few weeks later naming School B. The Council was aware there were issues with Y attending School B relating to his complex and specific medical needs. From the evidence provided, I cannot see what the Council did until spring 2023, to facilitate Y starting at School B. This was fault.
33. Email correspondence shows School B raising concerns with the Council about the support Y needed in his EHC plan and the arrangements for funding from February 2023. School B explained it could not recruit a teaching assistant or train staff until this had been resolved. The notes show it took the Council until the summer of 2023 to obtain the necessary reports from a Physiotherapist and Occupational Therapist to move things forward. As a result, School B could only start to recruit the necessary staff to support Y from July 2023. While I recognise the Council said it had issues with National Health provision being commissioned in an independent school, the Council should have known this would be the case and taken steps sooner to obtain independent reports.
34. From November 2022, Y was only receiving 6 hours of EOTAS which had been carried on from his time at primary school. It took the Council three months to put in place additional tutoring of 9 hours for Y. This was fault. As the Council was aware Y could not attend his school placement yet, it should have put in place additional provision for him sooner.
35. From February 2023 until September 2023 Y received 15 hours of tutoring per week. While the Council put in place EOTAS provision for Y, I am not satisfied that Y received the section F provision in his EHC plan. This was fault. Much of the Section F provision included group activities and social interaction for Y. Without attending his school placement he would not have received this provision.
36. Y was supposed to receive 6-10 sessions of SALT per year. While the Council did agree to fund this, Y has not received this provision. This was fault.
37. Since September 2023, Y has started to attend School B on a part time basis and has a package of EOTAS in place. There still appears to be issues with School B being able to recruit a teaching assistant to support Y which could be a factor in Y not being able to attend full time.
38. The Council was at fault for delaying in responding to Mr X’s complaint at stage two. The Council’s complaints policy says it aims to respond to a complaint at stage two within 20 working days. Mr X asked the Council to consider his complaint at stage two on 9 March 2023, but did not receive a response until July 2023. Therefore he had to wait longer than he should have to bring his complaint to the Ombudsman.
39. As I have found fault, I need to consider what injustice this caused. Y has not received the section F provision he should have received and this is an injustice to him. Y also had a period of three months with only 6 hours per week of tutoring following the SEND Tribunal’s decision, so he was not provided with adequate education for this period.
40. Mr X has also suffered an injustice. He is currently supporting Y at school during the lessons Y attends and acts in the role of a teaching assistant.
41. Where we decide there has been a loss of provision our Guidance on Remedies recommends between £900-£2,400 per term. In coming to a figure for this complaint, I have considered that Y was a child with special educational needs. Y was also at a critical point in his education as it was the start of secondary school. I have considered that the Council did put in place some educational provision for Y during the time he was unable to take up his school placement.

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Agreed action

42. Within one month of my final decision the Council agreed to carry out the following:
• Provide Mr X with a written apology for the delay in putting in place additional tuition for Y and for not putting in place the provision in his EHC plan.
• Pay Mr X £3,300, for the benefit of Y’s education to recognise the fact Y did not receive the special educational provision in his EHC plan and the delay in increasing Y’s tuition following the SEND Tribunal’s decision. In coming to this figure I have considered £1,500 per term is appropriate. The period of injustice runs for just over two terms.
• Pay Mr X £400 to acknowledge the distress he has experienced as a result of having to support Y and for the time and trouble he experienced in pursuing his complaint.
• As a teaching assistant has not been recruited to support Y, the Council should work with School B to agree an action plan and establish what measures can be put in place to ensure Y is receiving all of the provision in his EHC plan.
43. Within two months of my final decision the Council agreed to carry out the following:
• Consider what went wrong in this case and whether there are any changes the Council could make to its procedures to ensure it takes steps sooner to put in place the provision in an Education, Health and Care plan following a decision from the SEND Tribunal.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation and fund the Council was at fault. This caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman