The Ombudsman's final decision
Summary: Mr X complained the Council did not provide his son, Y, with suitable education for periods between October 2020 and July 2022. He also said the Council accepted fault with its complaint handling and poor communication but had not offered a suitable remedy. The Council was at fault. The Council should pay Mr X £4800 to be used for Y’s educational benefit in recognition of the lost education and £400 to acknowledge the time and trouble and frustration caused to Mr X by poor complaints handling and poor communication.
The complaint
Mr X complained the Council: Did not provide suitable education for his son, Y, between October 2020 and February 2021.
Has accepted it did not provide suitable education for Y between September 2021 to July 2022 but not offered an appropriate remedy.
Has accepted it communicated with him poorly between September 2021 and May 2022 and handled his complaint poorly, but not offered an appropriate remedy.
He wants the Council to accept it did not provide suitable education for Y between October 2020 to February 2021 and offer appropriate financial remedies for the lost education and distress caused to himself and his son by the identified faults.
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) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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) 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 Mr X’s complaint and spoke with him about it over the phone.
I made enquiries of the Council and considered information it sent me.
I considered our Guidance on Remedies.
Mr X and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.
What I found
Background information Duty to provide education Councils have a duty to provide education for children of compulsory school age (age 5-16) within their area.
Under section 19 of the Education Act 1996 councils also have a duty to make arrangements for the provision of suitable full-time 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.
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 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’) 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. This includes details of the child’s school or educational placement.
The Council’s complaints policy Councils must have a policy to ensure the effective handling of complaints. The Council’s policy has two stages. It says it will provide a stage 1 response within 15 working days. If a person asks to escalate the complaint to stage 2, it will provide a second and final response within a further 15 working days.
What happened Mr X’s son, Y, has special educational needs and an EHC Plan. The plan notes Y need significant support in school from teaching and support staff. The support is mainly in the form of strategies to manage his anxiety, emotional and sensory needs. As of September 2020, Y was in year 5. In September 2020, Mr X, the Council and Y’s school (school A) agreed that it could no longer meet Y’s needs. The Council agreed to consult with other schools and amend Y’s plan to name the new school. In the meantime, it referred Y to its home tuition service to enable Y to receive education whilst it found a suitable school that could meet his needs.
In October 2020, The Council said it would provide Y with 3 hours of online education per week, comprising of one hour each Tuesday, Thursday and Friday. Y met with the tutor from the home tuition service and the online tuition began following this meeting.
In November 2020, the Council amended Y’s Plan to name a different school, school B.
Y started at school B in January 2021.
The home tuition service stopped providing online tuition for Y in February 2021. In its closure report, the tutor said: Y had attended 45 sessions over 15 weeks, with 100% attendance.
He had engaged well and could usually interact for up to three quarters of each session, as long as activities were kept short and varied.
In October 2021, school B told the Council it could not meet Y’s needs. This was at the start of year 6. The Council held an annual review meeting to discuss Y’s ongoing education. Mr X told the Council he wanted Y to go to a different school, school C. School C was a private school. School C told Mr X and the Council that it did not currently have space, but would agree to assess Y in Spring 2022, with a view to offering a place starting September 2022.
Mr X told the Council that given the challenges Y had faced at school A and school B, he agreed to it not naming a different school placement in Y’s Plan at that time, if school C confirmed it would offer Y a place in September 2022. In the meantime, the Council did not arrange any education or alternative provision for Y.
In February 2022, Mr X complained about how the Council had managed Y’s educational provision over the last two years. He said the Council had refused to recognise when provision was unsuitable and had not provided Y with suitable education. He also complained about poor communication.
By March 2022, Mr X had not received a complaint response and brought his complaint to us. We told him he needed to wait for the Council’s response but could bring it back to us if he had not received this after 12 weeks.
In May 2022 Mr X told us he had still not received a response. The Council told us it was aware the response was overdue and would provide a response by 25 May 2022.
The Council sent Mr X the complaint response on 27 May 2022. It apologised to him for the delay in responding and offered £250 in recognition of the frustration this had caused. It upheld some of his complaints.
Mr X was unhappy with the response and requested the Council escalate the complaint to stage 2. The Council responded in June 2022.
It acknowledged the delay in responding to his complaint and said its offer of £250 in recognition of the delay still stood.
It disagreed with Mr X’s view that Y had not receive suitable tuition between October 2020 and February 2021.
It accepted it had not provided Y with suitable education between September 2021 and May 2022. It offered Mr X £2400 as a financial remedy for Y’s lost education during the 2021/22 school year.
It accepted it had communicated poorly with Mr X between September 2021 and May 2022, and that Mr X had gone to a lot of time and trouble chasing officers for updates. It said it had since made improvements to its service to improve communication including recruiting more staff, redesigning the service structure and changing its workload allocation system. It said the £250 offered for delays in responding to his complaint also recognised this poor communication.
Mr X remained dissatisfied and brought the complaint back to us.
In response to our enquiries, the Council said its offer of £2400 for lost educational provision between September 2021 and July 2022 was based on our guidance on remedies. It had calculated this figure for lost education over the whole school year at £800 per term.
It said it considered £250 to be an appropriate amount to remedy the injustice caused by delays in complaint handling and poor communication. However, it said it was open to being guided by the Ombudsman, if we felt a higher figure was more suitable.
Analysis Education between October 2020 and February 2021 The Council provided Y with 3 hours online tuition a week between October 2020 and February 2021. The Council says this was suitable education. Mr X says this was insufficient. The law says suitable education means “education suitable to age, ability and aptitude and to any special educational needs they may have”. It also says hours may be fewer than full-time, if the education is concentrated e.g. one-to-one provision.
On balance, the Council did not offer or provide Y with enough education to meet its duty to provide suitable education during this time. I have reached this view because: The evidence shows Y engaged well with the tutor at the face-to-face visit.
Y’s attendance for the online tuition was 100%, suggesting he could have accessed more.
The closure report showed Y engaged well in the sessions and made good progress.
There is no evidence the Council offered Y more than three hours per week, and no rationale provided for why he could not have accessed more than this. Although I accept suitable education may not have to be full-time as it was more concentrated when delivered one-to-one, the evidence suggests Y could have managed more than the three hours a week provided. Three hours per week is well below what a pupil would receive in a school and there were two days each week where Y received no education.
The failure to offer or provide suitable education during this time was fault. This meant Y missed out on education he was entitled to receive between October 2020 and February 2021. Our guidance on remedies says we would usually consider a figure of between £200 and £600 per month for lost educational provision, depending on the circumstances of each case. I have taken into account Y’s special educational needs, that they were in year 5 during this period, received some suitable education and some of the period was covered by school holidays. I consider that £250 per month (£750 total) is suitable to remedy the injustice caused by the lost provision.
Education between September 2021 and July 2022 The Council accepted it did not provide Y with suitable education between September 2021 and July 2022. It has offered Mr X £2400 in recognition of this. This works out as around £266 per month over 9 months.
Y did not receive any education at all during this time. This was in what should have been Y’s year 6; a key transition period between primary and secondary school. Given that Y had already missed out on education during 2020 and 2021, this lack of education caused a considerable additional injustice. Y also had special educational needs meaning he needed additional support to attain the achievements of his peers, and so the lost education is likely to have had a greater impact. The figure offered by the Council is insufficient to remedy the injustice caused to Y. Considering the circumstances of this case and our guidance on remedies, £450 per month (£4050 total) is a more appropriate figure in recognition of the injustice caused to Y.
Consideration of remedy for poor complaint handling and poor communication The Council has accepted there was fault with poor communication and poor communication. I agree with these findings. This caused Mr X frustration and meant he went to avoidable time and trouble contacting the Council. The Council offered Mr X £250 in recognition of poor complaint handling at stage 1. At stage 2, it offered the £250 in recognition of poor complaint handling and poor communication. Given that the Council’s stage 2 complaint response acknowledged it had communicated poorly with Mr X over a period of nine months between September 2021 and May 2022, this figure is insufficient to remedy the injustice caused by both these faults. I have recommended a suitable figure below.
Agreed action
Within one month of the final decision, the Council will: Pay Mr X £4,800 to be used for Y’s educational benefit, to remedy the impact of the lost educational provision between October 2020 and July 2022. This comprises £750 for the lost education between October 2020 and February 2021, and £4050 for lost education between September 2021 and July 2022.
Pay Mr X £400 in recognition of the frustration and time and trouble the poor complaint handling and poor communication caused him.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman