Summary: Mr and Mrs X complained the Council failed to provide an education for their disabled son and that it failed to provide the social care and respite set out in his Education Health and Care Plan. We found there was lack of provision over a prolonged period and a failure to respond to their complaint in a reasonable timescale. We recommended an apology, a payment of £9000 to recognise the impact of the missed provision and £500 to recognise the distress the matter caused.

The complaint

1. Mr and Mrs X complain the Council failed to provide an education for their son, Y, for a year. They complain that the Council did not take sufficient action to find an appropriate school placement during this time.
2. They also complain that no respite care was provided during this period.
3. They complain that the situation placed significant pressure on them as a family and affected Mr and Mrs X’s wellbeing as well as having significant affects on Y’s mental health.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to both of these. 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. 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)
5. 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)
6. 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).
7. 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

8. Mr and Mrs X complained to us after they received the Council’s final response to their complaint in April 2024. Mr and Mrs X’s complaint concerns events back to September 2021. As we expect complaints to be brought in 12 months of someone knowing about the events subject to complaint, some aspects of their complaint are ‘late’. Although this is the case, we have exercised discretion to consider the events of the complaint back to April 2022. This is because Mr and Mrs X originally complained to the Council in January 2023 and it took the Council over a year to fully respond to their complaint. Our investigation considers events up to April 2024 when the complaint was brought to us.

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How I considered this complaint

9. I contacted the complainants and considered the information they provided. I asked the Council for information and considered its response to the complaint.
10. Mr and 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

Education Health and Care Plans (EHC Plans)

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. The plan sets out the child’s needs and what arrangements should be made to meet them.

12. 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)  
13. We consider councils should be able to demonstrate appropriate oversight to ensure provision is being made 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. 

Section 19 Education Act 1996

14. 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.
15. 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)

Y’s Education

16. Y is disabled and has a number of complex conditions. He has an Education Health and Care Plan (EHC Plan). The school Y attended (School A) made it clear at a review of the plan in April 2022 that it was struggling to meet his needs. This was due to Y exhibiting very challenging behaviours. The annual review report stated Y’s behaviour was escalating at home and while in a respite placement and after careful consideration Mr and Mrs X considered a weekday residential placement may be necessary. The Council agreed to take this forward.
17. Y was on a part-time timetable (3 days per week) at the school. The Council provided funding for School A to put additional resources in place for Y and provided funding for additional staff. This continued until September 2022. At this point School A could no longer offer a place for Y.
18. The Council explained the actions it took to try to find a new school placement for Y from September 2022. It consulted with 34 schools from 13 May 2022 onwards and it was unable to find a suitable placement until April 2023.
19. In early May 2023 Y began attending a new school, School B.
20. Between September 2022 and mid-January 2023 no placement had been identified for Y and although the Council contacted tuition companies, no tuition was put in place for Y while he was without a school place. As a result, he did not receive an education in this period.
21. From mid-January 2023 the Council agreed funding for 25 hours week of tuition. I understand the tuition began at 6 hours per week with the intention that hours increased over time. There is no indication that Y received more than 6 hours of education per week between January and May 2023 when he started at his new school.

Y’s EHC Plan – Social Care

22. Y’s EHC Plan up until April 2023 states that he should receive 12 hours per week of social care support during term time and 20 hours per week during school holidays. Y should also receive 36 nights of overnight short break provision.
23. From April 2023 Y’s EHC Plan states Y should receive 14 hours of care in term time and 15 hours per week during school holidays. Y’s entitlement to 36 overnight short breaks per year remained unchanged with the same named provider (Agency A).

Social Care and Respite Provision

Daytime Support

24. The Council stated the care provider fulfilling Y’s care package became unavailable in late 2021. Although the Council identified another care agency (Agency B) in April 2022, they were unable to meet his needs.
25. The Council says it identified another care agency in September 2022 (Agency C) to provide less hours of care than stated in Y’s EHC Plan (6 hours per week term time and 18 in school holidays) but in any event this care did not begin due to the Council not agreeing transportation costs and in November Agency C told the Council it no longer had available carers.
26. The information provided by the Council shows that the social care provision in Y’s EHC Plan was not met from April 2022 to date. Some daytime support (3 days per month) was provided by Agency A between September 2022 to March 2023.

Overnight Respite

27. In response to our enquiries the Council told us that Y’s overnight respite provision had remained available with Agency A and it provided evidence that Y had received overnight respite provision between April and September 2022. However, when Agency A was providing day support from September 2022, no overnight respite was provided. The Council evidenced that respite was later made available once Y began attending a residential school in May 2023.
28. The Council told us once Y was at his residential school, a decision-making panel decided Y should receive 19 nights of respite provided by his school. Thirteen nights were provided in August 2023 and Y was able to access this until July 2024.

Was there fault by the Council

29. I recognise the Council approached numerous schools in order to find an alternative placement for Y from September 2022 onwards. While I understand the Council’s efforts, the length of time the Council took to find a placement for him represents service failure. While Y was without a school place, we would expect the Council to ensure he received an education. I have gone on to consider the provision made available.
30. There was fault by the Council in respect of education provision. The Council accepts Y received no education between September 22 and January 23. I found there was also a failure to provide a suitable education between January 2023 and May 2023. The law says that alternative education should be full-time unless it is not in the best interests of the child. In principle, it was not unreasonable for the Council to plan for a gradual increase in the tutoring arranged for Y from January 2023 if this was in Y’s best interests. However, there is no evidence the level of education did increase, that this was kept under review or that any conscious decision not to provide a full-time education was made in Y’s best interests after January 2023. The absence of provision of a full-time education or clear contemporaneous decision making as to why this was not appropriate leads me to find no suitable education was provided in this period also.
31. There was also a failure to provide the social care support that was specified in Y’s EHC Plan in two periods; from April 2022 to September 2022 and from March 2023 to April 2024, a combined total of 17 months. (I have noted some day support was provided by Agency A between September 2022 and March 2023). In addition, overnight respite provision (short breaks) were not available between September 2022 and April 2023.
32. Y has significant needs and this affects his behaviour. It means Mr and Mrs X have to provide a high level of care and supervision. This is difficult. As a result, Y’s EHC Plan provides for social care support and short breaks to enable them to have a break from their caring role and for the benefit of their other children. The absence of this care is fault which has a significant impact on them as carers.
33. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the level of the child’s special educational needs, any educational provision that was made during the period and whether additional provision can now remedy some or all of the loss.
34. Y has a high level of needs, so I have recommended a payment of £2400 for the impact of the term of missed education between September 2022 and March 2023. To recognise that some education was provided between January and May 2023, I have recommended a payment of £2000 for this period. A total of £4,200.
35. To remedy the lack of social care and respite over the period it was not provided, we have recommended a payment of £4800. I have also recommended a payment of £500 to the family to recognise the distress the matter caused and to reflect the impact of the significant delay in responding to their complaint.
36. During the events of Mr and Mrs X’s complaint, there is evidence that the Council reconsidered what social care and respite support it should fund on several occasions. When it did so, it agreed and set in place levels of care and support that differed from Y’s EHC Plan. The Council is legally obliged to provide the support set out in an EHC Plan, so it should have issued a revised EHC Plan to Mr and Mrs X to comment on if it considered Y’s needs or circumstances had changed and it sought to alter the provision within it. The failure to do this was also fault by the Council.

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Agreed action

37. Within four weeks of our final decision:
38. The Council should provide a written apology to Miss X and to Y for the fault we have found in our investigation. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
39. To remedy the lack of education and lack of social care provision for Y, the Council should make a payment to Mr and Mrs X of £9,000.
40. To recognise the distress caused by the issues raised in the complaint and the delay in responding to the complaint, I recommend the Council makes a payment of £500.
41. The Council should produce and circulate a briefing note to relevant staff to remind them that it is not possible to make changes to the provision of a child who has an Education Health and Care Plan without issuing a revised plan and an amendment notice to enable the child or young person’s parents to comment. This is in line with the process for amending a plan set out in the SEN Code paragraphs 9.193 to 9.198.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. There was fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman