Summary: Mrs X complained the Council failed to arrange suitable education for her child, G, and failed to secure the special educational provision in G’s Education, Health and Care Plan. The Council was at fault over two terms. This caused Mrs X frustration and meant G missed out on provision they should have had. To remedy their injustice, the Council will apologise to Mrs X, pay her a symbolic amount and arrange funding for G to attend enriching activities. It will also issue a staff reminder.

The complaint

1. Mrs X complained the Council failed to arrange suitable full time education for her child, G, and failed to secure the special educational provision in G’s Education, Health and Care Plan. Mrs X said this meant G suffered and that it caused Mrs X significant difficulty.

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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. 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.
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. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
7. 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

Relevant law and guidance

Education, Health and Care Plans

8. 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.
9. The EHC Plan is set out in sections which include:
• section F; the special educational provision needed by the child or the young person; and
• section I: the school or type of school the child or young person will attend.

Special educational provision

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. 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. 

EHC Plan reviews

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Annual reviews are made up of two parts. The first stage is the review meeting.
13. The second stage of the annual review is the council’s decision notice. Within four weeks of the meeting, the council must tell the child or young person’s parent (or the young person themselves) whether it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)

Appeals to the SEND Tribunal

14. 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.
15. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN in their final EHC Plan (section B);
• the special educational provision in section F of the Plan;
• the school or placement named in the Plan or that no school or other placement is specified (section I); and
• any amendment to these elements of an EHC Plan.
16. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)

Alternative provision

17. 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 provision.

Safeguarding

18. Under section 47 of the Children Act 1989, where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child’s welfare. Such enquiries should be initiated where there are concerns about abuse or neglect.

What happened

19. This section sets out the key events in this case and is not intended to be a detailed chronology.
20. Mrs X’s child, G, has conditions which cause challenges with behaviour, social interactions, focusing on tasks, motor skills and fatigue. In 2021, the Council issued an EHC Plan for G, which named a mainstream school (school A).
21. In mid-October 2022, school A excluded them. The Council held an emergency annual review where school A and Mrs X agreed G would not return to school for the rest of the academic year. The Council began consulting with schools to see if any of them could offer G a place.
22. Some time later, school A rescinded the exclusion but the Council agreed G should not return to school.
23. The Council arranged tuition for G, which began in late November 2022. It was due to start as nine hours per week, building up to 15 hours per week.
24. Mrs X says G refused to leave their bedroom for the tuition sessions. She is unhappy the tutor sat in the living room waiting for G to come down. Mrs X says the tutor never attended the home for more than 30 minutes per week and that they cancelled appointments frequently. Mrs X says she told the Council about this several times on the phone when the tuition first started. The Council has no records of any phone calls from that period.
25. In February 2023, the Council issued an amended EHC Plan, following the October 2022 annual review meeting. It named school A until July 2023 and then a specialist type school from September 2023 onwards.
26. In March 2023, Mrs X told the Council G was not able to engage with the tuition. Mrs X asked for an Education Otherwise Than At School (EOTAS) package, made up of OT, art therapy, PE, socialisation and social, emotional and mental health support.
27. The Council held an early annual review meeting in mid-March 2023. Around the same time, it agreed G could attend provider B for animal therapy for five hours per week.
28. In May 2023, G began attending provider B and was able to engage with the therapy fully, which delivered some of the provision in their EHC Plan. Mrs X was happy with the animal therapy. The tutor continued to visit G’s home, alongside the animal therapy.
29. In July 2023, a Council decision-making panel heard the tutor attended “up to once a week” for a maximum of 30 minutes, but G was unwilling to engage with them. It noted the tutor sent work for G to complete but they had not done any.
30. In August, the panel decided G should receive EOTAS. The package was made up of five hours of animal therapy and 15 hours of tuition at provider B. To begin with, G was due to have 11 hours per week, made up of five hours of animal therapy and six hours of tuition, with the aim of increasing to 20 hours per week total in time.
31. Mrs X says that when the tuition at provider B was due to begin in September 2023, she heard the planned tutor was no longer available and says they were replaced by someone who was not suitably qualified. Mrs X also said the facilities for tuition at provider B were inadequate. She says the tuition space was unavailable, so it was held outside in a tent held down with bricks and there were no toilets available.
32. The Council issued its decision to keep G’s EHC Plan unchanged in October 2023. Mrs X asked the Council to name provider B in G’s EHC Plan and it told her to ask for an early annual review.
33. In October 2023, provider B contacted the Council with concerns about risks to G. It said:
• it was concerned about Mrs X’s ability to manage G’s needs and felt she was stopping G from accessing education;
• G had only attended around 60% of the sessions they should have since September 2023, and they would sometimes only stay for 20 minutes. The provider said it felt that sometimes this was due to Mrs X; and
• it had not told Mrs X it was contacted the Council because it was concerned about repercussions for its staff.
34. In response, the Council stopped the tuition and invited Mrs X to an emergency annual review to resolve the issues between her and provider B. The Council says provider B did not agree to the emergency review, so it did not do one.
35. The Council’s children’s services decided it would not take any safeguarding action because Mrs X had not consented to work with it.
36. In late November 2023, provider B told the Council it believed Mrs X had given G alcohol to help them sleep.
37. That month, provider B stopped supporting G altogether. The Council did not arrange any new provision but continued to seek a new school place for G.
38. In early 2024 a school the Council had consulted with, school C, said it had space for G. A Council decision making panel considered whether G should attend school C and decided they should.
39. However, the panel did not notice school C had increased the amount it would cost for G to attend. The Council later realised the price had increased and tried to get manager approval for it. It ultimately decided it would agree to pay the increased fees for a short period before returning to the original payments. The Council admits it took too long to come to this decision, which meant that in mid-April school C withdrew its offer.

Recent Ombudsman decisions

40. We have recently investigated a number of complaints about the Council’s education service. In response to those investigations, the Council agreed recommendations to prevent fault occurring again in future. These include that it agreed to provide:
• the Ombudsman with an action plan which sets out how, in future, it will avoid failures to secure alternative provision and special educational provision for children who cannot attend school; and
• training to staff about the importance of adhering to the statutory timescales around EHC Plan annual reviews.

Findings

What I have and have not investigated

41. As noted in paragraph 16, the law places restrictions on what the Ombudsman can investigate if a person has had a right of appeal to the SEND Tribunal and where we decide it was reasonable for them to have appealed.
42. In February 2023, the Council issued a final EHC Plan for G, which gave Mrs X the right of appeal to challenge its contents and the placement named in the Plan. It was not reasonable for Mrs X to use that right of appeal because G’s EHC Plan named a specialist type placement from September 2023, which is what she wanted.
43. In October 2023, the Council issued its decision to maintain G’s 2023 EHC Plan unchanged. Mrs X wanted the Council to amend the EHC Plan to include details of G’s EOTAS package. When she asked the Council to do this, it directed her to ask for an early annual review of the Plan instead of directing her to the SEND Tribunal. It was understandable that Mrs X followed this advice so I do not consider she could have reasonably appealed to the Tribunal.
44. I have therefore investigated the period between September 2022, when G was excluded from school to May 2024, when the Council issued its final response to her complaint.

Educational provision

45. The Council accepts it owed G the duty to arrange alternative provision after they were excluded from school A and that the duty continued even when the exclusion was later rescinded. Where a child is permanently excluded from school there is no set timescale for arranging alternative provision. The Council arranged for G to have tuition at home around six weeks after the exclusion. This length of time does not amount to fault.
46. G did not meaningfully access the tuition at any point between November 2022, when it started and July 2023, when it stopped. Mrs X says she called the Council to tell it of her concerns about the tutor’s performance when the tuition first started. However, the Council has no record of any calls from that period. I am satisfied the calls were made, as Mrs X recalls. This poor record keeping was fault and means I am unable to come to a finding on whether the Council took appropriate action in response to Mrs X’s concerns, to ensure G was receiving as much of the tuition provision as they could.
47. In March 2023, Mrs X told the Council G was not engaging with the tuition. By July 2023, the Council heard the tutor was visiting G’s home “up to” once per week, for 30 minutes. I have seen no evidence the Council checked the tuition was being delivered as effectively as possible when Mrs X said G was not engaging with it in March 2023. This was not in line with the expectations set out in paragraph 11 and was fault. It caused Mrs X avoidable frustration. However, I cannot say, even on balance, that the fault meant G missed out on tuition provision given that he was unable to engage with it when the tutor was present.
48. When Mrs X told the Council the tuition was not working in March 2023, the Council agreed G could attend provider B for therapy five hours per week. It should have reasonably been arranged within one month but did not start until May 2023, two months later. The delay was fault, which caused Mrs X further frustration. The therapy delivered some of the special educational provision in G’s EHC Plan so the delay meant they missed out on about a month of education and special educational provision they should have had.
49. At the start of the 2023/2024 school year, G started receiving tuition from provider B alongside the animal therapy. Mrs X was unhappy with the tuition facilities and felt the tutor assigned to G was under qualified. Around the same time, provider B raised concerns about Mrs X’s impact on G’s education. The Council acted appropriately by stopping the tuition and trying to arrange an emergency annual review to address the concerns and come to a resolution.
50. However, provider B refused to engage with an emergency annual review and at the end of the year, it ended the animal therapy too. The Council did not put any new provision in place for G from the end of 2023 to May 2024, the end of the period I have investigated. This was fault; the Council should have acted without delay to arrange new provision for G. The fault caused Mrs X upset and meant G missed out on education and special educational provision they were entitled to.
51. The Council has recently agreed actions in response to a separate complaint to complete a recommendation designed to prevent similar faults in the future, so I have not made a further recommendation below.

Annual review

52. Mrs X asked the Council to agree an EOTAS package for G in March 2023. In response, the Council arranged an early annual review of G’s EHC Plan. It held the annual review meeting the same month. This was an appropriate way to consider Mrs X’s request. If, after the meeting, the Council decided G needed EOTAS it should have issued a decision to amend G’s EHC Plan within four weeks and ultimately issued an amended EHC Plan detailing the EOTAS package.
53. The Council did not do this. It did not decide whether G should have EOTAS until August 2023 and then further delayed issuing its decision following the annual review meeting until October 2023. This meant the Council took around seven months to complete the annual review instead of the statutory timescale of four weeks, which was fault. This caused Mrs X avoidable frustration but did not cause G an injustice because the Council nonetheless put the EOTAS package in place ready for the start of the new school year.
54. The Council wrongly told Mrs X to ask for another early annual review when she asked it to amend G’s EHC Plan naming EOTAS in October 2023. This was fault. It should have directed Mrs X to use her right of appeal of its October 2023 decision to maintain G’s EHC Plan unchanged. This fault meant Mrs X missed out on an opportunity to appeal to the SEND Tribunal to change G’s EHC Plan to include EOTAS provision.
55. I have not made a recommendation to improve the Council’s handling of EHC annual reviews below because the Council recently agreed to deliver staff training on annual review timescales. A further recommendation is therefore not needed.

Consultation with school C

56. In early 2024, the Council identified that school C had a space for G. However, its failure to notice school C had quoted an increased price for G to attend caused a delay which ultimately meant the school withdrew its offer. This was fault. The fault caused Mrs X avoidable frustration but I cannot say, even on balance, that had the fault not occurred, G would have started attending school C. This is because the Council ultimately only agreed to increase the funds it paid school C in the short term, which the school may not have accepted.

Safeguarding

57. The Council has a duty to make enquiries when it believes a child in its area is suffering or is likely to be suffering significant neglect. When provider B raised safeguarding concerns about G in November 2023, the Council decided it would not take any action because Mrs X had not given her consent. This was fault. Where the threshold to make enquiries has been met, the Council does not need a parent’s consent to take safeguarding action.
58. There is also no evidence the Council considered the later concerns of provider B that Mrs X was giving G alcohol to help them sleep. This should have prompted the Council to consider safeguarding actions. Its failure to do so was fault.

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Agreed action

59. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for frustration and upset she experienced due to the faults set out in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Mrs X £250 in symbolic recognition of her injustice.
60. To remedy G’s injustice, recognising the impact loss of provision had on them, the Council will arrange for them to have one year’s membership to a local gym, for the value of approximately £400-500. Alternatively, taking into account G’s wishes, the Council should arrange for G to receive lessons in a sporting activity, such as swimming, for the value of approximately £400-500. The Council will arrange for the membership to start within one month of the date of my final decision, or book G onto the sporting lessons within that period.
61. The Council will also give Mrs X vouchers for admittance for her and G to attend enriching settings such as zoos, museums, outdoor activity centres on the weekends. It is for the Council and Mrs X to agree upon a suitable list of settings. The vouchers should be for £125 per month, lasting a total of twelve months.
62. If Mrs X needs support with travel costs and food for her and G while at the settings, the Council will agree an appropriate sum for those costs per month and make payment for them to Mrs X directly. Those costs should be deducted from the £125 vouchers. The Council will issue the first voucher and, if necessary, the first payment for travel and food costs within one month of the date of my final decision.
63. Also within one month of the date of my final decision, the Council will remind relevant staff that they do not need parental consent to consider and act on safeguarding concerns.
64. The Council will provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman