The Ombudsman's final decision:
Summary: Ms X complains the Council failed to provide the provision of one to one support, as set out in her son’s EHCP, between February 2017 and July 2018. Ms X also complains about the Council’s complaint handling. The Ombudsman finds fault with the Council for failing to provide full time one to one support. The Ombudsman also finds fault with the Council’s complaint handling. The Council has agreed to apologise and make a financial payment.
- Ms X’s son has an Education, Health, and Care plan (EHCP). Ms X complains the Council failed to provide the provision of one to one support, as set out in the EHCP, between February 2017 and July 2018. Ms X also complains about the Council’s complaint handling. She says the Council took three months to respond to her stage one complaint and that the Council has still not responded to her stage two complaint, which she made in November 2018.
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)
How I considered this complaint
- I spoke with Ms X and considered the information she provided.
- I made enquiries with the Council and considered the information it provided.
- I sent a draft decision to Ms X and the Council and considered their comments.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
What I found
- Section 42 outlines that when an EHCP is maintained for a child or young person, the local authority must secure the special educational provision specified in the plan.
- Ms X’s son, Z has an EHCP. Section F sets out his special educational needs provision. It sets out that Z will receive full time one to one adult support in school to assist with his cognition and learning, as well as physical needs.
- In February 2017, the Council told the school Z’s one to one support had resigned. The Council also told the school it was responsible for recruiting for the vacant post as they received high needs funding from the Council. The Council said it provided the high needs funding to the school to facilitate the provision of one to one support.
- In June 2017, the Council completed a review of Z’s EHCP. During this review, Ms X said she told the Council Z’s one to one support had not been replaced. It was noted in the records that Z’s one to one support had not been replaced and the support that was in place was not equivalent to one full time person. There was no evidence to suggest the Council took any action with the school to ensure the one to one provision was in place following this disclosure.
- Ms X said she could not remember the dates she raised the issue of Z not receiving his one to one support. Ms X said she did give the Council some time to hire the replacement so she thought June might have been the first time she told the Council that Z’s one to one support had not been replaced.
- In January 2018, Ms X told the Council Z had not received any full time one to one support since February 2017. The Council contacted the school and asked for an update on the situation.
- The school confirmed this was the case as the intervenor had not been replaced and it did not have the resources to provide Z with one to one support. The school noted Z was getting some one to one support through the day but acknowledged this was not the same as the full time one to one support stipulated in his EHCP. At this stage, there is no evidence to suggest the Council took any action with the school to ensure the one to one provision was in place following this update.
- In February and April 2018, the Council said it met with the school to discuss the provision of support for children. In the April 2018 meeting, the Council said it reiterated that the provision of one to one support was the responsibility of the school. The Council was unable to provide any minutes from these meetings.
- In April 2018, the school advertised for two teaching assistants, one of which was to provide one to one support for Z. In May 2018, the school successfully recruited for the role. They started in July 2018.
- Ms X first complained in May 2018. The Council did not provide its stage one response until August 2018. The Council accepted it was at fault for not providing a timely response.
- Ms X escalated her complaint to stage two in November 2018. In January 2019, Ms X complained to the Ombudsman because the Council did not provide a response to her complaint.
- In February 2019, we referred the complaint back to the Council to respond to at stage two. In March 2019, Ms X contacted the Ombudsman again as she had still not received a response to her complaint. We reopened Ms X’s complaint.
- The Council said it was unable to complete its investigation at stage two as the Ombudsman started his investigation.
- The Council has explained it has improved the resolution time for complaints at stage two by using more investigators to investigate stage two complaints.
- After Z’s one to one support left, the Council told the school it was responsible for hiring a replacement. Therefore, the Council had made it clear it was not going to provide another intervenor for Z. I do not find fault with the Council for this. This is because the Council has explained it secured Z’s special educational provision by providing his school with high tariff funding. This funding is then used by the school to provide the provision. This is reasonable in the circumstance.
- However, Ms X told the Council, in July 2017, Z had not received one to one support since February 2017. Therefore, the Council was now aware Z was not receiving the special educational provision set out in his EHCP.
- The law is clear that local authorities must secure the special educational provision set out in a child’s EHCP. There is no evidence to suggest the Council took any action to secure Z’s one to one provision once it knew he was not receiving the provision. The Council cannot absolve itself of its responsibilities just because it provided funding to the school. It should have taken action to satisfy itself the provision had been secured.
- Further, Ms X raised the issue again in January 2018. While the Council did contact the school on this occasion to question why there was no one to one support, the Council did not take any action to secure the provision once the school confirmed Z had no full time one to one support.
- I acknowledge the Council met with the school in February 2018. However, the school did not put in place the provision, or advertise for the vacant position, following this meeting. Therefore, the Council would have been aware the provision was still not in place. Again, it was the Council’s responsibility to ensure the provision was secured. The Council did not do this, and this is fault.
- I find the fault identified caused Z an injustice. This is because he did not receive the special educational provision, set out in his EHCP, of full time one to one support. I find the fault identified also caused Ms X an injustice. This is because she was caused distress at knowing Z was not receiving the support he was entitled to.
- Following a meeting with the Council in April 2018, the school advertised for a teaching assistant to provide full time one to one support to Z. The Council was unable to provide any minutes from this meeting. This is unhelpful.
- In any case, the evidence suggests the Council addressed the lack of one to one support with the school at this meeting. On balance, it appears this is what led to the school advertising for the vacant posts. This action was appropriate in the circumstances as the Council intervened to ensure the school secured the special educational provision.
- It is clear from the evidence the Council failed to provide a timely response to Ms X’s stage one complaint. It took the Council about three months to respond and the Council has acknowledged it was at fault for this delay.
- I also find the Council at fault for its handling of Ms X’s complaint at stage two. The Council has said it was unable to complete its stage two investigation because the Ombudsman had opened his investigation.
- However, the evidence shows the Council was given the opportunity to respond to Ms X’s complaint in February 2019. We did not reopen our investigation until March 2019. This meant the Council had a month to respond to Ms X’s stage two complaint. This is fault.
- I find the fault identified caused Ms X an injustice. This is because she did not receive a timely response to her complaint, and this caused her distress.
- The Council has explained it has improved the resolution time for complaints at stage two by using more investigators to investigate stage two complaints. I find this to be a suitable service improvement.
- To remedy the injustice caused by the fault identified, the Council has agreed to complete the following.
- Apologise to Ms X and Z.
- Pay Z £1700 in recognition of the special educational provision lost between June 2017 and April 2018. This payment has been calculated using a tariff of £200 a month, in line with the Ombudsman’s guidance on remedies. I have also considered the school holidays.
- Pay Ms X £300 to recognise the distress caused by the faults identified.
- The above remedy should be completed within four weeks of the final decision.
- I find fault with the Council for failing to secure the special educational provision set out in Z’s EHCP. The Council has agreed to my recommendations. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman