Summary: Mrs B complained the Council failed to provide her grandchild, C, with education, and education, health, and care provision. We found fault with the Council. It failed to assess the amount of home tuition C could access and delayed providing cognitive behaviour therapy which in turn, delayed her return to school. This left C without any education provision for six weeks. We consider the financial remedy the Council offered during its complaint investigation a suitable remedy for the injustice caused to Mrs B and C.

The complaint

1. Mrs B complained the Council failed to provide her grandchild, C, with education and education, health, and care (EHC) provision. She also complained the Council delayed telling her it would not amend Cs EHC plan following a review.
2. An earlier investigation considered the Council’s actions from February 2020 to July 2021. This investigation considered the Council’s actions from August 2021 to December 2021 and the resultant complaint investigation.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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. 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 considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
8. Mrs B and the Council had the opportunity to comment on a draft decision. I considered any comments received before making my final decision.

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What I found

Legislation and policy

9. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.
10. The EHC plan is in sections which include:
• Section C: The child or young person’s health needs which are related to their SEN.
• Section E: The outcomes sought for the child or the young person.
• Section F: The special educational provision required by the child or the young person.
11. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. EHC plans should be used to actively monitor children and young people’s progress towards their outcomes and longer-term aspirations. They must be reviewed by councils as a minimum every 12 months.
13. Within four weeks of a review meeting, a council must tell the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. 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)) ‘Otherwise’ is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling.
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)) The education provided by the council must be full-time unless the council decides 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) Full-time education ranges from 21 hours each week at Key Stage 1 to 25 hours a week at Key Stage 4. If councils provide one-to-one tuition, the hours of face-to-face provision could be less as the provision is more concentrated
16. In 2022 we issued a new report, ‘Out of school, out of sight’. This report made recommendations for councils, including:
• Consider the individual circumstances of each case and be aware the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis).
17. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this. In an extended appeal, the tribunal can also make non-binding recommendations about health and social care aspects of EHC plans, provided those appeals also include education elements.

Achieving for Children

18. The Council has outsourced its children’s services to Achieving for Children (AfC) an independent provider.

Background

19. C has diagnoses of attention deficit hyperactivity disorder (ADHD), autistic spectrum condition, anxiety disorder, and dyslexia. C has an EHC plan. C was studying for her GCSE’s in the academic year 2021/22.
20. AfC issued a final amended EHC plan for C in April 2021 following a SEND tribunal. The EHC plan said a transition plan needed to be co-constructed with the family and relevant professionals, by the beginning of the spring term. It said alongside home tuition or just before C transitioned back to School 1, C would have weekly one-hour sessions informed by cognitive behavioural therapy to support her anxieties related to school. These sessions would be for six to eight weeks and delivered by a suitably qualified person such as an educational psychologist or mental health professional. The plan also included weekly speech and language therapy, personal development, and study skills sessions.
21. School 1 held an annual review meeting in June 2021. Attendees agreed AfC should amend sections C and E of C’s EHC plan.
22. AfC held a medical tuition meeting in June 2021. The minutes of the meeting record child and adolescent mental health service (CAMHS) felt C was ready to begin the reintegration to School 1. Following this, AfC held a meeting to discuss C’s reintegration to School 1. Attendees agreed C would attend School 1 in June 2021 with her home tutor and then try to attend a history lesson at the school the following week. School 1 said it would review how C got on and decide which lessons she would attend going forward. School 1 confirmed C would also start to access online lessons.

What happened

23. This chronology includes key events in this case and does not cover everything that happened.
24. AfC said it sent Mrs B a letter in August 2021 and told her it was not going to amend C’s EHC plan. It explained this was because although the annual review recommended changes to her EHC plan, the plan issued in April 2021 was accepted by the family and the provision in Section F mirrored the outcomes attendees wanted to add. Mrs B said she did not receive this letter.
25. Mrs B asked AfC to deliver the CBT sessions in C’s EHC plan before she returned to School 1.
26. From September 2021, AfC provided C with seven hours tuition.
27. At the end of September 2021, AfC held a reintegration meeting. Professionals recommended C accessed coaching sessions while AfC sourced a CBT provider.
28. School 1 held a reintegration meeting in October 2021. Mrs B could not attend because of a bereavement. AfC sent her a summary of the meeting. It said attendees considered everything was in place for C to return to school. It confirmed occupational therapy was being delivered, speech and language therapy had been arranged, and an educational psychologist had started CBT with C. It said attendees felt C’s CBT sessions could be delivered alongside her return to School 1. AfC told Mrs B C’s last session of home tuition would be that day and it expected C to attend School 1 from now on.
29. AfC stopped providing home tuition provision from mid-October. C did not attend school from mid-October to mid-December 2021 while she completed the CBT programme.
30. A SALT assessment was completed in November 2021 and the therapist provided weekly SALT sessions with C at home until she returned to school in mid-December 2021.
31. In December 2021, Mrs B complained AfC:
• Failed to issue notice of its intention not to amend C’s EHC plan after C’s annual review in June 2021.
• Did not have the provision in section F of C’s EHC plan in place for the start of the school year in September 2021, namely speech and language therapy, personal development, and study skills sessions.
• Told School 1 not to deliver section F of C’s EHC plan until she returned to school.
• Undermined C’s reintegration plan.
• Failed to provide suitable home tuition for C from September to mid-October 2021.
• Failed to provide alternative education provision for C from mid-October to mid-December 2021.
32. The school wrote to Mrs B and said it could have delivered the psychoeducation programme when C returned in December 2021. It said this did not happen because C did not want to work with the learning support assistant trained in the programme. It advised it would have to train another learning support assistant to deliver the programme before this could be delivered. This happened at the beginning of February 2022.
33. The Council responded to Mrs B in January 2022:
• It said it had difficulty arranging CBT for C. It said when it was reported that C declined CBT in April 2021, professionals suggested alternatives, but Mrs B did not consent to these. It advised C’s refusal to engage in CBT and Mrs B’s failure to consent to the alternative proposals contributed to C missing education and EHC provision. It said in hindsight it should have commissioned CBT for C.
• It reflected that as C did not attend school while she was having CBT, it should have considered a continued period of home tuition until the CBT programme was complete.
• It acknowledged some of the special educational provision in C’s EHC plan was not delivered in line with SEND Tribunal direction. However, it was of the view both the school and AfC had made their best endeavours to commission and put in place provision for C, and that reasonable alternatives were offered when this was not possible.
34. Mrs B responded to AfC’s complaint response in January 2022 and asked it to consider her complaint at stage two. She questioned why it had not addressed all her complaints.
35. AfC responded to Mrs B’s complaint in April 2022. It explained there had been a misunderstanding about who would respond to her complaint, and its January 2022 correspondence was not a direct response to her complaint. It apologised for this and said it had suggested AfC managers receive refresher training in complaints handling. With regards the matters she raised in her December 2021 complaint:
• It apologised for its delay notifying her that it was not going to amend C’s EHC plan and confirmed it sent this to C’s mother in August 2021. It explained AfC did not amend C’s EHC plan because new outcomes to section E mirrored provision in section F which were agreed by the family in April. AfC upheld her complaint.
• It said it was flexible and offered C alternatives when, in April 2021, she said she would not engage in CBT. It reflected that when Mrs B did not give consent for it to take an alternative approach and provide C with coaching, it might have been prudent for it to have commissioned the CBT service again. AfC partly upheld her complaint.
• It clarified the email it sent in September 2021 was not saying remote provision would stop immediately but clarifying that EHC provision would be delivered by School 1 when C returned. It said while this offer was made with the best intentions, as C did not return to School 1 until December 2021, it should have continued delivering provision remotely. AfC upheld this part of her complaint.
• It said EHC provision was not provided by School 1 between October and December 2021 because C did not attend. It acknowledged this was because C had not completed the CBT sessions. It explained School 1 could not provide psychoeducational sessions when C returned to School 1 in December because she did not want to work with trained learning support assistant and another one had to be trained before this could be delivered. AfC partly upheld her complaint because while C may not have received the special educational provisions as exactly set out by the tribunal, AfC and School 1 went to every effort to suggest alternatives.
• It summarised the actions it had taken to work with Mrs B to co-produce C’s reintegration plan. AfC did not uphold this part of her complaint.
• It advised the Ombudsman was investigating her complaint about it not providing C with suitable alternative provision.
• It recognised it should have arranged for C to receive alternative education provision from mid-October to mid-December 2021.
• AfC apologised to Mrs B and C for the lost provision and any stress caused because of inconsistent provision and offered a financial remedy of £750.
36. AfC identified areas for development:
• Work with the SEND team and its leaders to further consider time management strategies and assess how they are embedded to ensure timely responses.
• Reinforce child centred decision making even when Statutory Frameworks and processes make it more challenging.
• Work in better partnership with the school and provide an opportunity for reflection and support, where needed, relating to this specific case.

Analysis

37. AfC should have told Mrs B or C’s mother within four weeks of the annual review in June 2021 it was not going to amend C’s EHC plan. AfC acknowledged it delayed telling C’s mother. Mrs B said she did not receive the delayed notification. AfC was at fault for its delay telling C’s mother it was not going to amend C’s EHC plan. AfC apologised for this during its complaint investigation. This fault frustrated their right of appeal to the SEND tribunal.
38. AfC provided C with seven hours of tuition a week from September to mid-October 2021. This was not equivalent of full-time education. AfC has not provided evidence of how it assessed this was the number of hours tuition suitable for C. Failing to assess the number of hours suitable for C was fault. This fault caused uncertainty about the number of hours tuition AfC would have offered C if it had completed an assessment.
39. From September to October 2021, C did not receive all the provision in her EHC plan. The school-based interventions could not be delivered because C was not attending school, and she did not receive SALT until November 2021. This was fault by AfC and meant C missed out on six weeks of EHC provision.
40. The tribunal ordered that alongside home tuition or just before C transitioned back to School 1, C would have weekly one-hour sessions informed by cognitive behavioural therapy to support her anxieties related to school. AfC did not secure CBT until October 2021, and this delayed C’s return to school. Although, professional’s felt C could return to school alongside receiving CBT, this was not in line with the tribunal order. Therefore, AfC should have continued to provide C with alternative provision from mid-October until she transitioned to School 1 in mid-December, not doing so was fault. In total, C missed six weeks of education and EHC provision because of AfC’s fault.
41. During AfC’s complaint investigation, it offered Mrs B a financial remedy of £750. I consider this a suitable remedy for the injustice caused by its faults. Our guidance says a remedy payment for distress, which includes uncertainty, is a moderate sum of between £100 and £300, and we usually recommend a remedy of between £200 and £600 a month for lost provision. The Council’s remedy is consistent with this.

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Final decision

42. I have completed my investigation and uphold Mrs B's complaint. There was fault by the Council which caused injustice to C and Mrs B. I am satisfied the Council has taken action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman