Summary: Mrs X complained the Council failed to secure the special educational provision in her child, W’s, Education, Health and Care (EHC) Plan. The Council was at fault, which meant W missed out on one and a half terms of provision they should have had. The fault also caused Mrs X avoidable upset. To remedy her and W’s injustice, the Council will apologise to Mrs X, pay her a total £1500 and review the systems it has to monitor consultations with educational providers.

The complaint

1. Mrs X complained the Council failed to secure the special educational provision in her child, W’s, EHC Plan, when they left their school in July 2023. Mrs X also complained about delays in arranging a review of W’s EHC Plan.
2. Mrs X said this caused W stress, impacted on their mental health and meant they missed out on education. Mrs X said this meant she had to pay for a tutor for W and had to go to the effort of pursuing the matter with the Council.

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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. 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.
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. 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

7. 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.
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

Relevant law and guidance

Education, Health and Care Plans

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.
10. 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

11. 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)  

EHC Plan reviews and amendments

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 statutory guidance the SEN Code paragraph 9.176).
14. The SEN Code sets out councils can also make minor amendments to a child or young person’s EHC Plan where a full annual review or reassessment of the person's needs is not necessary.

Settings in an EHC Plan

15. If a parent or young person does not agree with certain parts of the content of an EHC Plan, they can appeal to the SEND Tribunal, which can direct a council to make changes to the Plan. Parents and young people can also appeal the SEND Tribunal’s decision to the Upper Tribunal if they feel it was made unlawfully.
16. A recent Upper Tribunal judgement set out guidance on cases where a child or young person is receiving or may receive Education Otherwise Than at School (EOTAS). EOTAS is a form of education delivered to child and young people outside of a school setting.
17. The judgement clarifies if a child or young person is going to receive EOTAS only, that must be specified in section F with section I left blank. However, the judgement also noted a council can put EOTAS in section F but still name a school or type of school in section I if the child is expected to start 'attending' that school or type of school, even if they are currently not attending and even if attending means accessing provision on the school site but not in a classroom. 

What happened

18. This section sets out the key events in this case and is not intended to be a detailed chronology.
19. W is a young person in post-16 education with an EHC Plan. During the 2022/2023 school year, W struggled to attend their specialist school because of their complex health needs.
20. In early July 2023, W’s school held an early annual review meeting on behalf of the Council after W’s mobility needs increased. At the meeting, the Council agreed to consult with alternative education settings but agreed that W would remain on roll at their current school in the meantime.
21. The Council issued its decision to amend W’s EHC Plan in late July 2023. In early September 2023, the Council issued W’s amended EHC Plan which named a specialist type school in section I and included the following special educational provision in section F.
• A highly structured learning environment with teaching in small groups delivered by staff who have knowledge and experience in supporting young people with social, emotional and mental health needs;
• A curriculum tailored to W’s level of ability;
• Support for W to begin to engage in peer-group activities; and
• Support to help W develop their self-worth.
22. In mid-September, W developed concerning new health symptoms which needed investigation and ultimately resulted in a new diagnosis. Some of their other conditions also deteriorated, meaning they were not well enough to return to school in the autumn term.
23. A decision-making record from mid-December 2023 notes the Council had recently met with professionals involved with W’s medical care and their EHC Plan coordinator, as well as W’s parents. The Council agreed to consult with a provider which teaches young people with moderate special educational needs out of the home (provider A) and to explore a mentoring service. It noted W was due to start a lengthy course of outpatient medical treatment in the New Year.
24. In early February 2024, the Council met with Mrs X and agreed to contact a tutoring company (provider B) to provide therapeutic art and maths tutoring. It contacted Provider B in mid-February, which began looking for a tutor with availability.
25. Provider B found a tutor for W so, in March 2024, the Council commissioned it to provide ten hours of tuition per week. The Council says at that point, W moved to receiving EOTAS.
26. The tuition began in late March. Mrs X says there were issues with the tutor, including that they were late, referred to W in the wrong way and was not qualified to meet W’s complex needs. Mrs X said this meant she was patronising to W.
27. Mrs X complained to provider B which apologised and said it would speak to the tutor about being late. It asked Mrs X to consider trying the tutor again but in mid-April Mrs X refused; she asked for another tutor.
28. In early May 2024, provider B told the Council it had found a new art tutor and was also prepared to start delivering English and Maths tuition for W. Mrs X told the Council W now wanted to have tutoring in English, Maths and Psychology instead of art.
29. Mrs X began paying for her own art tutor to support W. Mrs X paid for six sessions.
30. Council arranged tutoring began in September 2024.

Findings

Special educational provision

31. The Council owes W the duty to secure the special educational provision in their EHC Plan. It initially did this through W’s specialist school. However, changes to W’s health in July and September 2023, meant they were unable to return to the school during the autumn 2023 term. During that term, the Council did not arrange any other education to deliver W’s special educational provision but I do not consider this was fault. W had experienced a significant increase in their needs and developed a new health condition which required investigation. On the balance of probabilities, it is likely the Council considered W was not well enough to receive alternative education for much of the term.
32. In December 2023, once W was more ready to return to education, the Council met with Mrs X and other professionals. It agreed to consult with provider A and explore a mentor service for W. There is no evidence the Council did this, which was fault. Ultimately, W did not start receiving an education in the form of home tuition until late March 2024 which means they missed out on almost one term of special educational provision. The fault also caused Mrs X avoidable upset.
33. Mrs X had concerns about the tutor and in mid-April 2024, she asked provider B to source a new one after the first session did not go well. That was Mrs X’s decision to make. The Council was aware provider B had agreed to find a new tutor, which was an appropriate step to take and was not fault.
34. By early May 2024, provider B had found a new art tutor and was ready to deliver maths and English tuition alongside art therapy. There was no significant delay in provider B finding a new tutor so the Council was not at fault.
35. Mrs X responded to say W now wanted to do psychology instead of art therapy, which would have taken time to arrange. Despite this, I have seen no reason why the maths and English tuition could not have started while the Council found a psychology tutor. Instead, W did not receive any further tuition before the end of the term. This was fault and meant W missed just over one half of a term of special educational provision. Mrs X experienced further avoidable upset because of the fault.
36. In May 2024, Mrs X paid for six art tutoring sessions for W, which delivered some of the special educational provision in their EHC Plan. Given the Council had agreed W should have art tutoring previously, I have recommended it reimburse Mrs X the cost of the sessions. I have also recommended a further, symbolic, payment to remedy the injustice caused to W by the remaining lost special educational provision between January to March 2024 and May to July 2024.

EOTAS

37. When the Council commissioned provider B to tutor W in March 2024, it decided W had moved to receiving EOTAS. The Council told me it did not update W’s EHC Plan to include EOTAS because it was still satisfied W would be able to attend a specialist type setting in time. It referenced an Upper Tier Tribunal judgement as rationale for its decision. However, that judgement found councils can justifiably state a child will receive their special educational provision through EOTAS in section F of their EHC Plan while still naming a school or type of school in section I, providing the council is satisfied the child can or will be able to attend that school or type of school in future.
38. That was not the circumstances of this case. W’s September 2023 EHC Plan did not state W would receive their special educational provision through EOTAS. Once W moved to EOTAS in March 2024, the Council should have updated the special educational provision to reflect that, while still naming a specialist type school in section I. The SEN Code of Practice sets out councils can make minor amendments to a child or young person’s EHC Plan without the need for a full annual review. The Council should have done this, to ensure W’s EHC Plan was an accurate reflection of their special educational provision. The Council’s failure to do so was fault and caused Mrs X frustration.

Annual review

39. The Council completed W’s annual review in late July 2023, when it issued its decision to amend W’s EHC Plan. To comply with the statutory timescales, the Council should have completed W’s 2024 annual review by late July 2024. The Council did not do this. This delay was fault and caused Mrs X avoidable further frustration.

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Agreed action

40. Within one month of the date of my final decision, the Council will take the following actions:
1. Apologise to Mrs X for the upset and frustration caused by its failure to secure the special educational provision in W’s EHC Plan, its failure to amend W’s EHC Plan to include EOTAS and delay in completing W’s 2024 annual review. 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 £150 in recognition of her injustice.
3. Pay Mrs X £1350 in recognition of W’s injustice. This amount is in line with the Ombudsman’s guidance on remedies, taking into account W’s phase of education, the provision they missed out on alongside their ability to engage and benefit from any education which should have been in place.
4. Reimburse Mrs X the cost of the art therapy she funded in May 2024, providing she can supply suitable receipts or invoices.
41. Within two months of the date of my final decision, the Council will review the systems it has in place for monitoring consultations with education and tuition providers to ensure they are sent and followed up without delay.
42. The Council will provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman