Summary: There was fault by the Council. It took too long to respond to Miss B’s complaint. It did not consider properly whether changes to the timetable would have a significant impact on Miss B’s son and whether this was dealt with in accordance with his Education, Health and Care plan. The Council’s shortcomings caused distress and frustration. The Council should take the action recommended to remedy the complaint.

The complaint

1. Miss B complains about how the Council handled her son, K’s educational needs. In particular, she says the Council:
• Failed to take action when the educational provider reduced her son’s educational provision from 12 to nine hours.
• Failed to take action when the child’s school regularly altered her son’s timetable, when it changed the agreed subjects and then did not provide a known person to supervise his exams.
• Did not handle her complaint in accordance with the complaints process.
2. Miss B says the Council has failed to hold the educational provider to account. The commissioning documents show that the Council commissioned the provider to deliver 10-12 hours tuition per week. She says that as a result of the Council’s shortcomings, she had to teach her son 15 hours per week to catch up. His GCSE’s were interrupted and she had to buy course books and pay for him to sit functional skills exams instead.

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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. 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

5. I considered the information provided by Miss B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken into account the comments received.

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What I found

The law and guidance

6. 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
7. 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)
8. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

What happened

The educational provision

9. Miss B’s son, K, has special educational needs and an EHC plan. He received education via two providers commissioned by the Council to deliver the plan between them. Following a review in July 2022, the plan said he would receive 1:1 tuition in maths, english, science and computers. He would be working towards GCSEs and a BTEC. The EHC plan itself did not specify how many hours of tuition should be delivered. The Council commissioned one of the providers to supply up to 12 hours per week according to K’s needs.
10. K initially had 12 hours per week tuition. From October 2022, these hours reduced to nine per week. As I understand it, Miss B understood that the hours would revert to 12 per week again. However, this did not happen and so she arranged a meeting with the provider. Miss B says they promised the hours would be increased but again, this did not happen and so she complained to the Council.
11. The Council found that the hours had decreased to nine in October 2022 because a safeguarding review had recommended that students (unrelated to K) attend for whole afternoon or whole morning sessions. This, and that K’s EHC plan said he should have shorter sessions with breaks, meant the provider had to change the timetable and could only offer K nine hours of tuition weekly.
12. The Council checked with the provider but they had no capacity to increase the hours. The only two-hour slot they could give K was on a Friday afternoon and Miss B refused this because K would be too tired by Friday afternoon to cope with lessons.
13. In January 2023, the Council offered K three hours of homework which he could complete with his allocated 1:1 support worker within his normal timetable at the other provider. However, Miss B did not feel this was a good solution. The Council also suggested that K could switch to a new provider for all his tuition, but it would not recommend this with the exams approaching. The provider sent work home with K and Miss B supported him to complete this.
14. The Council did not uphold Miss B’s complaint because with no hours specified in the EHC plan the Council was not obliged to provide more. Miss B says the Council has failed to hold the educational provider to account. The Council had commissioned the provider to deliver 10-12 hours per week. Miss B says that as a result of the Council’s shortcomings, she had to teach her son 15 hours per week to catch up. His GCSE’s were interrupted and she had to buy course books and pay for K to sit functional skills exams instead.
15. The Council has explained that it had not known that K’s GCSE’s were interrupted. The intention was that K would study for exams with the two providers. Miss B says she had made the Council aware of the difficulties.
16. I am not persuaded that the number of hours commissioned by the Council is central to the complaint. The key issue is whether K was receiving the education provision set out in his EHC plan. The plan does not specify the number of hours of tuition and so the Council did not have to ensure that K was receiving 12 hours tuition.
17. The Council did have to ensure that K was receiving a suitable education, however. The Council properly explored this with the provider. And while I can see it was not ideal, the Council did offer alternatives of independent study (or homework) to be completed with the other supplier, or additional two hours of tuition albeit on a Friday afternoon. It seems to me that a suitable education was available to K. This did not have to be via 12 hours by one provider, despite that he had been receiving this, and it was open to the school and the Council to decide that his education could be organised in a different way within the provision set out in his EHC plan.
18. In addition, I do not agree that the Council failed to hold the provider to account. It investigated Miss B’s report of the change in hours and how this might be resolved. There was no fault by the Council.

Timetable changes and changes to agreed subjects

19. K’s EHC plan makes clear that the provider should use social stories to prepare K at least one week prior to events or changes in the school routine that are likely to be significant to him. Miss B tells me that the provider would email her on the Sunday night with that week’s timetable and that it changed each week.
20. In response to Miss B’s complaint about this, the Council said that it was expected that K would be available during school hours, and the school did not have to consult parents on timetable changes. The Council said it would get involved if the provider could not deliver the provision but it was not involved in timetable changes.
21. The Council is responsible for ensuring that K’s education was delivered in accordance with his EHC plan. Miss B reported the changing timetable to the Council in the July 2022 annual review, and in emails following this. The Council does not consider the changes were significant. I realise they may not have been significant generally and they were perhaps necessary. But the EHC plan says the provider should use social stories to prepare K for changes that are likely to be significant to him.
22. The Council did not properly consider whether these changes were significant to K nor how he was being prepared for these. This was fault by the Council and it is likely to have caused K distress and uncertainty.
23. The Provider gave K Geography lessons despite that he was not studying the subject so he could get used to a member of staff who would accompany him to all his exams. However, K had a different member of staff to all exams and on one occasion the supervising staff member swapped during his exam.
24. The Council understood that the Geography lessons would focus on English skills and were so that K could be familiar with that teacher. The Council was not aware that K had a different invigilator. However, the Council says it had only commissioned the provider to give access to GCSEs and invigilators. It had not stipulated that the school should have a familiar or the same invigilator, despite that the provider had promised K and Miss B this.
25. K’s EHC plan says K should have consistency in school staff, not that he must have a familiar invigilator for exams.
26. K’s EHC plan says he will receive 1:1 tuition in Maths, English, Science and Computers. Geography was not part of the plan. However, it was open to the provider to decide that this was appropriate in terms of improving english skills, and K was still receiving English tuition, although I appreciate this was reduced. On balance this was not fault by the Council.

The Council’s complaint handling

27. The Council’s complaints process has two stages. It will respond at stage one within ten working days. The complainant if dissatisfied can ask the Council to consider the complaint at stage two of its process. The Council will respond to stage two complaints within 20 working days. The Council’s policy says that in both cases it will acknowledge the complaint within two working days. It also says that if a complaint is complicated it may take longer to sort out and the Council will keep the complainant informed if this is the case.
28. Miss B complained to the Council on 6 January 2023. The Council responded at stage one of its process on 25 January 2023 (13 working days). Miss B asked the Council to escalate the complaint to stage two on 2 February 2023.
29. Miss B chased the Council and it acknowledged her request on 1 March. It said it would conclude the investigation by 29 March and provide a response shortly after. This was outside of the complaints policy. It then extended this on 29 March to say the investigation was still in process and it would respond by 19 April. The Council responded on 11 April. In total the Council took over 50 working days to respond to Miss B at stage two.
30. Miss B says the Council took too long to respond to her complaints. This meant that her son had completed the school year before she could resolve the problems. Mrs B complained to the Council about the delay. The Council explained that there were unavoidable delays in acknowledging and responding to her complaint and that it responded within the extended timescale. The Council said the delay was due to service demand and annual leave.
31. I appreciate that the Council may not always be able to meet the timescales set in the policy. However, it seems to me that it did not acknowledge the stage two request in good time and it did not calculate the target response date correctly: it would already have been overdue by 29 March. The Council can extend the timescale, but it did not explain how Miss B’s complaint was complicated such that this was warranted. In addition, in extending the time scale, I would expect the Council to take into account that as K was approaching important exams, time was of the essence.
32. Although the complaints process did not alter the outcome for K, the Council’s delay here caused Miss B and her son distress and frustration, particularly at a difficult time in K’s education.

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Agreed action

33. The Council will within one month of the date of this decision:
• Apologise to Miss B for the fault identified. The apology should be in writing and from an officer of appropriate seniority;
• Pay to Miss B £250. This is a symbolic payment in recognition of the frustration and distress its shortcomings caused her;
• Remind staff that extensions to the timescale for complaint responses are for complicated complaints, and that the Council should have regard to the urgency of the situation when it decides to extend the timescale; and
• Share this decision with relevant staff.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation. There was fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman