Summary: Ms X complained about how the Council arranged support for her son, Y’s, special educational needs. There was fault in how the Council failed to arrange all the provision in Y’s Education Health and Care plan and failed to review the education it did provide for over four months. This caused avoidable distress and uncertainty to Ms X and Y. The Council agreed to apologise, pay a financial remedy and review how it arranges and monitors home education.

The complaint

1. Ms X complains the Council failed to secure the provision in her son, Y’s, Education Health and Care (EHC) plan from November 2022. She says the Council has failed to:
• provide the hours of education specified in Y’s EHC plan;
• keep the education it provided under review; and
• arrange input from speech and language / occupational therapists.
2. As a result, she says Y has missed out on education at an important time in his life, that she had to arrange and pay for some of Y’s provision herself and has been unable to work. She wants the Council to arrange all the provision in Y’s EHC plan and compensate her for her costs and lost income.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, 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)

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How I considered this complaint

7. I considered:
• the information Ms X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.
9. 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 found

Education health and care plans

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
12. 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). This includes children educated in their own home where the Council agrees that is the right provision for them.

What happened

Background

13. Ms X’s son, Y, has special educational needs related to diagnoses of autism spectrum disorder, obsessive compulsive disorder, and anxiety. He has had an Education Health and Care (EHC) plan from the Council since 2021.
14. Y previously attended mainstream secondary schools but because of his health conditions became unable to attend and Ms X told the Council she would be educating him at home herself. As part of this, Ms X arranged and paid for an online mentoring service and art tuition.
15. Following a review of Y’s EHC plan in June 2022, the Council decided to carry out a reassessment of Y’s needs. Ms X also told the Council she wanted it to arrange Y’s education again.
16. After this assessment the Council issued an amended EHC plan in November 2022. It agreed to fund the online mentoring Ms X arranged and online art tuition for Y. It repaid Ms X for what she had paid for the online mentoring and tuition since September 2022.
17. The support set out in Y’s November 2022 EHC plan included:
• a tutor, mentor or teaching assistant, aiming for up to 25 hours a week;
• education provided in a way Y felt able to access. At first this would be education outside of a school environment, likely at home to start with. The education would need to be flexible to suit Y’s interests and ability to engage;
• one to one support from a mentor or learning support assistant to access a variety of home-based and online learning, aiming to work towards attending education outside of home;
• access to appropriate equipment for learning art including graphics software;
• a custom social communication programme developed by a speech and language therapist and delivered by a suitably trained tutor twice a week; and
• a programme of activities developed by an occupational therapist with daily input from a tutor and monitored by the therapist.

Events from November 2022

18. When the Council issued the amended final EHC plan in November 2022, it agreed to fund the existing two hours a week mentoring and two hours a week art tuition. Y started accessing one hour a week art tuition which later increased to two.
19. Ms X sent the Council a proposed plan for Y’s home education. This set out what Ms X thought the Council should provider to meet the full 25 hours tuition mentioned in Y’s EHC plan. However, there is no evidence the Council responded to Ms X’s plan at the time, either to agree it or explain why it did not think what she had suggested was appropriate.
20. Ms X complained to the Council in early February 2023 that it was not providing the support set out in Y’s EHC plan and that it had not arranged the equipment he needed for his art course.
21. The Council responded to Ms X’s complaint in early March 2023. It agreed to pay for the equipment Y needed (which Ms X had purchased herself in late February) and it arranged a review of Y’s home education for early April.
22. The Council also started to arrange some maths and English tuition for Y, with a plan for up to 10 hours a week. Y started with one and a half hours of English in late May 2023.
23. The Council held further reviews of Y’s education in mid-May, early June, and late June 2023. By the time of the last review, Y had increased his English studies to two hours a week and was starting to introduce maths. According to his tutors, Y had made excellent progress in the short time since the tuition started.
24. Ms X then arranged for Y to visit a local college, with a view to him starting a part-time course from September 2023. Those introductions were successful and, following a review of Y’s EHC plan in July 2023, the Council arranged for Y to attend his preferred college from September 2023.

My findings

25. The Council had a duty to secure the provision in Y’s EHC plan from the date it issued the plan at the end of November 2022. However, the plan said the provision would start off at a manageable level for Y and would be increased when he was able to take on more. Therefore, the Council was entitled to take a staged approach to arranging any provision for Y.
26. The Council agreed to fund the support Y was taking part in at the time it issued the plan. Based on the evidence from the time, I am satisfied with the Council’s explanation that this was what it believed Y was able to cope with at that time.
27. However, the plan called for this to be increased when Y felt able to do more, so I would have expected the Council to arrange regular reviews of the education he was able to cope with soon after it issued the EHC plan.
28. There is no evidence the Council reviewed what education Y was taking part in until April 2023, after the Ms X complained. The Council’s failure to keep Y’s education under review for four months between December 2022 and March 2023 was fault.
29. Had the Council reviewed Y’s education sooner, it is likely Y would have increased the amount of education he took part in sooner than he did. Given Y’s complex needs and other difficulties, I cannot say how much more education he would have taken part in or whether he would have been able to start a more advanced college course in September, as Ms X suggests. However, I am satisfied there was a missed opportunity to help Y make more process and there is a remaining uncertainty about what the outcome would have been had the Council more closely monitored Y’s education from the start.
30. There is also no evidence the Council made any arrangements to provide the one-to-one mentor, speech and language, or occupational therapy input included in Y’s EHC plan. That was fault which meant Y went without the opportunity for that support. Now that Y is attending college, he has told the Council he does not want separate therapy.
31. I cannot say how much of the therapy Y would have been able to take part in, or what difference this would have made to him. However, there is again a remaining uncertainty about what the outcomes for Y would have been if the Council had arranged this from November 2022.
32. Ms X had to chase the Council to get it to arrange and increase the provision it had arranged for Y. She also had to provide Y with a lot of support while he was being educated at home. Some of the support Ms X provided to Y was mentioned in his EHC plan. However, much of what Ms X said she did was typical of what a parent might do for a young person of Y’s age or was related to his wider difficulties. I am not satisfied the Council’s failures alone meant Ms X was unable to work. However, this did cause Ms X considerable frustration and distress. There is also a remaining uncertainty about how the outcome for Y might have been different, which is a further injustice to Ms X.

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Agreed action

33. Within one month of my final decision the Council will:
• apologise to Y for the distress, uncertainty and missed opportunities caused by the delays in reviewing and increasing the education it arranged for him;
• apologise to Ms X for the distress and uncertainty caused by the same delays;
• pay Y £300 to recognise the distress and uncertainty caused to him by the delays;
• pay Ms X £800 to recognise the missed opportunity to increase the education it provided for Y and the failure to arrange the mentoring and other therapies in his EHC plan. This is intended for Y’s future educational benefit; and
• pay Ms X £400 to recognise the frustration, upset and uncertainty caused to her.
34. Within three months of my final decision the Council will review its policies and procedures for arranging ‘education otherwise than at school’. It should ensure that, in all cases:
• it arranges regular reviews of the education it provides from the start of any home education; and
• that the frequency of these reviews reflects the needs of individual children, especially in cases where it has decided on a staged or increasing approach for the education they should receive.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. There was fault in how the Council failed to arrange all the provision in Y’s EHC plan and failed to review the education it did provide for over four months. This caused avoidable distress and uncertainty to Ms X and Y. The Council agreed to apologise, pay a financial remedy and review how it arranges and monitors home education.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman