The Ombudsman's final decision
Summary: Ms X complains the Council failed to provide section 19 alternative provision, failed to secure the special educational needs provisions set out in her child’s EHC plan, and delayed in completing an annual review. It is likely we would find fault with the Council if we were to investigate, so we invited the Council to remedy the injustice caused by the likely faults. The Council has agreed to our recommendations.
The complaint
Ms X complains the Council failed to provide section 19 alternative provision, failed to secure the special educational needs provisions set out in her child’s Education, Health, and Care (EHC) plan, and delayed in completing an annual review.
The Ombudsman’s role and powers
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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
The complainant had an opportunity to comment on my draft decision. I considered her comments before making a final decision.
My assessment
Ms X’s child has an EHC plan which named a school. In January 2021, Ms X said she told the Council her child could not return to the school. Ms X commissioned private tuition from September 2021 to December 2021.
In its complaint response, the Council noted it was not told the child could not return to school in January 2021. However, it accepted it would have been evident this was the case by April 2021 when the annual review was held.
The Council accepted it missed the opportunity to consider what provisions were being offered to the child while they were not able to attend the school and whether it considered this to be sufficient education.
The Council agreed to remedy this by reimbursing Ms X for the cost of the tuition she privately commissioned, to pay Ms X £200 to recognise the injustice caused to the child by the missed opportunity to review the provision, and £100 to Ms X for the time and trouble in pursuing the complaint.
However, the Council has not offered a remedy for the failure to provide the SEN provisions. The Council’s duty is to secure the SEN provisions within a child’s EHC plan. The Council has already accepted it was at fault for failing to consider what provisions were being offered to the child while she remained out of school.
We therefore asked the Council to consider remedying the injustice caused by this to resolve the complaint early. We asked the Council to pay Ms X £300 per month for the eight months (April 2021 to January 2022) the child received no special educational provision.
Following our first draft decision, Ms X subsequently raised a complaint the Council delayed in holding the annual review. The Council accepted there was a delay of five months.
This fault impacted on the recommendation I made because the calculation of the period the child received no SEN provision was based on when the Council first became aware the child could not return to school. If the Council had not delayed in holding the annual review, it is likely the Council would have been aware the child could not return to school from January 2021 onwards.
Therefore, I am now of the view the child received no SEN provisions for 10 months (I have excluded two months to account for school holidays and summer break). The total remedy to pay is £3000.
Agreed action
To its credit, the Council agreed to resolve the complaint and will complete the above recommendation within four weeks of the final decision. The Council will also implement the remedies it had previously agreed to, namely: Pay £200 to recognise the uncertainty caused by the missed opportunity to explore alternative provision.
Pay £100 to recognise the time and trouble caused.
Reimburse the cost of private tuition commissioned by Ms X between September and December 2021. (Invoices to be provided by Ms X)
Final decision
We uphold this complaint as the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused.
Investigator's decision on behalf of the Ombudsman