Summary: Mrs X complained about the Council’s handling of her child, Y’s, Education, Health, and Care plan. The Council was at fault for delays consulting schools and putting tuition in place for Y, and for its poor communication early on. It agreed to provide a remedy for the term of education Y missed. It also agreed to carry out a review of Y’s plan.

The complaint

1. Mrs X complained about the Council’s handling of her child, Y’s, Education, Health, and Care plan. Mrs X said the Council:
• Failed to secure Applied Behaviour Analysis (ABA) therapy set out in Y’s Education, Health, and Care plan.
• Delayed consulting schools and could not find Y a school placement.
• Delayed starting home tuition for Y until January 2024. This tuition is not full time and is not in line with Y’s Education, Health, and Care plan.
2. Mrs X said the Council left Y without education, feeling isolated and lonely. Y now struggles to go out. This created difficulty for the family, as someone must stay at home to support Y.

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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. 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)
5. 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

6. As part of the investigation, I considered the complaint and the information Mrs X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mrs 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

Special educational needs

9. 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. 
10. 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)  
11. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  

Alternative provision

12. 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.
13. 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))
14. 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)
15. 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’)

Service failure

16. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

What happened

17. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
18. Y has an EHC plan issued in 2019 by the local authority for the area the family lived in at the time.
19. Y has autism spectrum disorder, with significant difficulties in language and communication, attention and listening, fine motor skills, and social interaction and play.
20. The special educational provision in Y’s EHC plan includes: an individual curriculum, play based activities, specialist one-to-one support from someone trained and experienced in ABA methods and procedures, and 35 hours ABA tutoring each week (in school and at home).
21. Y attended primary school in the former local authority area until July 2023. Y should have started secondary school in September 2023.
22. At the last review of Y’s EHC plan, in July 2023, the reviewer noted there was a breakdown in communication between the former local authority and the Council. This meant Y did not have a secondary school placement yet.
23. The review report recommends intensive one-to-one intervention by ABA therapists for 32.5 hours a week. This was to enable Y to access an educational setting, where Y would then need full time ABA support.
24. Y’s EHC plan transferred to the Council from the former local authority in 2023 when Mrs X and her family moved into the area.
25. The Council assigned Y a caseworker (Caseworker One), but they left in September 2023 without any actions or doing a handover to the new caseworker (Caseworker Two).
26. Mrs X made a formal complaint on 9 October 2023. She said the previous local authority transferred Y’s EHC plan to the Council in May 2023. Since then, the Council failed to provide ABA support from Y’s EHC plan and failed to find Y a school placement.
27. Also on 9 October, Mrs X contacted Caseworker Two for an update on a school placement. Caseworker Two did not reply until 21 November 2023. They gave details of the schools they were consulting and asked if Mrs X wanted the Council to consult any others. Mrs X replied the same day requesting another school. Caseworker Two also consulted the other school the same day.
28. The Council responded to Mrs X’s complaint on 28 November 2023. It said it received Y’s EHC plan from the previous local authority on 4 August 2023. Since then, it consulted Mrs X’s school of choice and others. Their responses are overdue, and the Council is chasing.
29. The Council said once it finds Y a school its funding panel will consider Mrs X’s request for ABA support. The Council also said it would put home tuition in place as a temporary measure until Y can start school.
30. Mrs X asked to escalate her complaint on 5 December 2023. She was not happy Y remained without a school, home tuition, or ABA support.
31. Caseworker Two was then on leave and left the Council in December 2023. Caseworker Two had intended to arrange home tuition for Y, but failed to do so.
32. The Council sent its final complaint response on 3 January 2024. It said it liaised with schools to chase consultation responses, but had still not received some replies. It said it requested home tuition for Y, but a start date has not yet been confirmed.
33. The Council said it had not considered Mrs X’s request for funding for ABA support because this is school-based therapy and Y is not yet in school. Its funding panel would consider this once Y is in school.
34. The Council allocated a third caseworker (Caseworker Three) in January 2024. Caseworker Three set up the home tuition Y currently receives. This consists of 15 hours a week of one-to-one support from a tutor with a certificate in ABA. This has taken place since January 2024 while the Council searches for a school placement.

My investigation

35. Mrs X told me Y remains without a school since July 2023 and the Council is not providing ABA support.
36. Mrs X worries about the gap in Y’s education. She also worries Y is isolated and struggles to go out, which was not previously the case.
37. In response to my investigation, the Council accepted Caseworker One and Two’s standard of work of fell below what it expects, and communication with Mrs X was poor.
38. The Council also accepts it failed to provide Y with home tuition from September 2023 until January 2024.
39. The Council said it provided Y with one-to-one home tuition for 15 hours a week since January 2024. It said Y’s tutor considers Y is making good progress. The Council therefore considers the tuition is acceptable interim provision while it looks for a school placement. The Council also said the tutor uses ABA practices and principles in their sessions, so it considers Y is receiving ABA support at home.
40. The Council told me it consulted nine schools, a mixture of mainstream and specialist. Three consultation responses are still outstanding, and the Council is chasing this up. The remaining placements replied saying they could not meet Y’s needs, or that Y’s admission would be incompatible with the education of others.
41. The Council said few pupils in its area have an ABA programme in their EHC plan. The Council considers schools in the area have little experience delivering this. It believes this is why it has been difficult to find a placement for Y.

Analysis

42. The Council had 15 days to put Y’s provision in place after the move into its area. It failed to do so. It failed to take any action for about three months, when it started consulting schools. That was fault. The Council should have consulted schools as soon as it received Y’s EHC plan in August. This was an unacceptable delay at an important transitional time for Y.
43. The Council provided me with evidence it consulted several schools, after the early delays, and it has been chasing responses. However, Y has now missed a full year of school, and still does not have a placement. While I do not consider the Council is at fault for lack of action, this still amounts to service failure.
44. The Council was also at fault for delays putting alternative provision in place. It should have looked at alternatives as soon it was clear Y would not have a school placement for September. Y went four months, a full school term, without any education or support at all. That is a significant injustice.
45. Since January 2024, Y received one-to-one tutoring which includes ABA methods. I found Y’s EHC plan includes:
• Specialist one-to-one support provided by people trained and experienced in ABA methods and procedures.
• Apply behaviour analytic principles and teaching strategies to change behaviour and speed up learning.
• To continue with reducing negative behaviours, it will be essential for the people supporting Y to have the knowledge and skills to conduct functional assessment and analysis and implement function based interventions.
46. I found Y received this support from their tutor. The support is all one-to-one, with a tutor certified in ABA methods. The records of their sessions show they apply ABA techniques and strategies to address Y’s behaviour and help Y’s learning. The records also show Y has started to make progress with learning and with language.
47. Y does not receive 35 hours of ABA tutoring each week, as set out in Y’s EHC plan. However, the plan does not say the 35 hours should be one-to-one. It says it should provide enough time for one-to-one support, in school and at home. Y is not in school, so it is not possible to follow all provision as described in the plan at present. And Government guidance confirms that where a student receives purely one-to-one support this can be for less hours than full time education. I therefore do not consider I have enough evidence to say Y’s current tutoring is not suitable, or that the Council is not providing special educational support consistent with Y’s EHC plan while Y is out of school.
48. However, as Mrs X pointed out, the lack of a school place is impacting Y’s social development, and left Y feeling isolated. I am also mindful that the longer Y is out of school, the more difficult it could be to integrate Y into secondary school.
49. At the time of my investigation, it was coming towards the time when the Council would need to conduct an annual review. I consider a review at this stage would be helpful to plan Y’s education for the upcoming school year.

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Agreed action

50. Within four weeks of my final decision, the Council will:
• Apologise to Mrs X for its delays consulting schools and putting tuition in place for Y, and for its poor communication early on.
• Pay Mrs X £1,500 to recognise Y went a full school term with no educational provision or support, at what was an important transitional time.
• The Council should review Y’s EHC plan and create an action plan for Y’s education going forwards, focusing on how it will get Y into a school. As part of the review, the Council should consider whether the current level of tuition and ABA support is enough to meet Y’s needs in the longer term, and what the Council will do if schools in the area will not accept Y. The Council should involve Y’s tutor, and Mrs X, in this process and keep Mrs X updated.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I completed my investigation. The Council was at fault for delays consulting schools and putting tuition in place for Y, and for its poor communication early on. It agreed to provide a remedy for the term of education Y missed. It also agreed carry out a review of Y’s EHC plan.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman