The Ombudsman's final decision
Summary: Mrs X complained on behalf of Mr Y. She complained the Council failed to provide Mr Y with education and the provision specified in his Education, Health and Care Plan since the SEND Tribunal decision in December 2021. She said Mr Y as missed education, provision and he was not prepared for moving to college. There was fault in the way the Council did not ensure Mr Y received the provision set out in his plan. Mr Y missed out on this provision for one year. The Council should apologise and make a financial payment to Mr Y.
The complaint
Mrs X complained on behalf of Mr Y. She complained the Council failed to provide Mr Y with education and the provision specified in his Education, Health and Care Plan (EHCP) since the SEND Tribunal decision in December 2021. She said Mr Y has missed education, provision and he was not prepared for moving to college.
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) If we are satisfied with a Council’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) Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
I read Mrs X’s complaint and spoke to her about it on the phone.
I considered information provided by Mrs X and the Council.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Background information A child or young person with special educational needs may have an Education, Health and Care Plan (EHCP). This document sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
There is a right of appeal to the Tribunal against: a decision not to carry out an EHC needs assessment or reassessment; a decision that it is not necessary to issue a EHCP following an assessment; the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified; an amendment to these elements of an EHCP; a decision not to amend an EHCP following a review or reassessment; and a decision to cease to maintain an EHCP.
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.
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) The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017) Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
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)) 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) The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
Out of school, out of sight? published July 2022 What happened This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
Mr Y has complex additional needs. He has an EHCP. The provision named in Mr Y’s plan details English and Maths education. It also detailed Educational Psychology (EP) support, Speech and Language Therapy (SALT) and Occupational Therapy (OT).
The SEND tribunal issued its decision in December 2021. The decision detailed the Council would provide Mr Y with education at least two mornings per week. It said he would receive SALT, OT and EP provision. The Council issued Mr Y’s EHCP detailing this provision.
The Council determined Mr Y could access six hours per week education without impacting his mental health. The Council offered this provision, but Mr Y did not engage with education.
The Council reviewed Mr Y’s EHCP in July 2022. It proposed amending the plan.
Mrs X complained to the Council in August 2022. She complained the Council did not provide Mr Y with an education, or the provision in his plan, since the Tribunal decision in December 2021.
The Council issued Mr Y’s final EHCP in September 2022. Mr Y’s mother did not agree with the plan.
The Council responded to Mrs X’s complaint in September 2022. The Council apologised for the delayed response. The Council confirmed its home education service offered education to Mr Y. The Council stated it was not clear Mr Y received all the provision specified in his plan. It deferred the decision to consult with the commissioning service.
Mrs X was not happy with the Council's decision and requested it escalate her complaint to stage two in October 2022.
The Council provided its stage two response in November 2022. The Council confirmed it had not provided the provision specified in Mr Y’s EHCP. The Council apologised and offered Mr Y £3,000 for missed provision and a £200 time and trouble payment.
Mr Y’s mother lodged an appeal with the SEND Tribunal in November 2022.
Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to make a financial payment.
In response to my enquiries the Council stated the officer who issued the stage two response had left, not recording the response. The Council advised it considered the matter and felt the amount offered to represent the lack of provision was in line with the Ombudsman’s guidance on remedies. The Council increased the offer to £3,600 to allow for the additional time until it commissioned the EHCP provision.
My findings
Education Legislation set out in paragraph 10, details the Council must arrange suitable provision for children of compulsory school age.
The Council determined six hours per week, was suitable to Mr Y’s needs. It decided any more than this would impact his mental health. The Council put this education into the EHCP following the Tribunal order. The Council arranged home tuition for Mr Y following the Tribunal decision.
The Council arranged tuition, but Mr Y did not engage with the offer of education. I have seen evidence the Council tried to engage with Mr Y, twice per week as detailed in the decision, but this was not successful. The Council was not at fault.
EHCP provision When the Council issued Y’s EHCP in December 2021, it had a duty to secure the special educational provision in the plan (Section 42 Children and Families Act).
The Council accepted it did not provide the provision specified in Mr Y’s EHCP.
The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to provide the provision here amounts to fault.
Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
The Council considered the Ombudsman’s guidance on remedies. It offered Mr Y £3,600 for not providing the provision specified in his plan. The Council also offered £200 as a time and trouble payment for the delays in the complaint handling. This offer is a suitable remedy for the fault identified in this case.
Agreed action
To remedy the outstanding injustice caused to Mr Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision: Apologise to Mr Y for not ensuring he received the provision set out in his EHCP. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology .
Pay Mr Y the £200 it offered as an acknowledgement of the time and trouble he has spent pursuing this complaint.
Pay Mr Y the £3,600 it offered for not providing the provision specified in his EHCP.
The Council should provide evidence of the actions taken to satisfy the recommendations.
Final decision
I have completed my investigation. I have found fault by the Council, which caused injustice to Mr Y.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman