Summary: Miss X complains the Council did not deal with her son’s education properly. The Council is at fault because it did not provide therapy sessions. The Council should apologise and pay Miss X £600.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council has not provided a full time education for her son, Y, from January 2023.
2. Miss X says Y has missed out on education and special educational needs provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. 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.
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)
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. I have investigated that part of Miss X’s complaint about how the Council has dealt with Y’s education from January 2023 to August 2023.
9. I have not investigated Miss X’s complaint after August 2023 because the Council’s final response was in August 2023, and events after then have been subject to a separate complaint through the Council’s complaints process.

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How I considered this complaint

10. I spoke to Miss X about his complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
11. Mr 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

Law, guidance and policies

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.
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. 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.

What happened?

16. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
17. Miss X and Y moved into the Council’s area in December 2022. The Council accepted responsibility for maintaining Y’s EHC Plan.
18. In January, the Council made education provision for Y by way of tutoring whilst it sought a permanent placement for Y.
19. Miss X complained to the Council in May 2023 about the lack of full time education for Y.
20. The Council sent a final complaint response to Miss X in August 2023. It did not uphold her complaint about the provision of full-time education but did accept that Y had not received some therapy provision.

Analysis

21. I have been able to review numerous documents which cover the time period January 2023 to August 2023, including an EHC Plan dated December 2023 with supporting reports from tutors, an Educational Psychologist and the annual review summary.
22. The Council says it tried to increase the number of hours tutoring provision for Y between March to June 2023, but Y was not always able to engage and missed a number of sessions. I have seen evidence showing that the Council considered increasing the number of hours tuition offered and did so on at least one occasion.
23. On the balance of probabilities, the educational provision made reflected Y’s ability to engage with it. This is not fault by the Council.
24. The Council accepted that Y had missed several Speech and Language Therapy (SaLT) sessions. It agreed that the missed sessions would be backdated.
25. Y’s EHC Plan says these sessions should have been face to face. The Council offered online sessions. There is no evidence to show these sessions have been delivered as per Y’s EHC Plan. On the balance of probabilities, they have not. This is fault by the Council. Y has missed special education needs provision.

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Agreed action

26. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Miss X for the fault found. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Miss X £600 in respect of the missed Speech and Language Therapy sessions.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I have found fault by the Council which caused injustice to Miss X. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman