Summary: Mrs X complained the Council failed to provide her son Y the one-to-one education specified in his Education, Health and Care Plan. The Ombudsman finds the Council was at fault. That has caused Mrs X avoidable distress and meant Y had two school terms where his education did not meet his needs. The Council has agreed to pay Mrs X a financial remedy for the distress caused and for any shortfall in Y’s education.

The complaint

1. Mrs X complained the Council failed to provide her son Y the one-to-one education specified in his Education, Health and Care Plan (EHC Plan), when he moved school in September 2018.
2. She said the lack of one-to-one provision has affected Y’s learning and meant she spent considerable time out of school hours, having to provide Y with extra educational support. She said she has also gone to avoidable time and trouble following up Y’s lack of provision with the Council and its response to her concerns had led to frustration, distress and ill health.

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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 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)
5. 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.

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How I considered this complaint

• I discussed the complaint with Mrs X.
• I made enquiries of the Council and considered its response including Y’s case records and copies of Y’s EHC Plans.
• I referred to the statutory guidance ‘Special educational needs and disability code of practice:0 to 25 years’ Department for Education, January 2015.
• Mrs X and the Council both had the opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

6. Statements describe a child's needs (what he or she can and cannot do) and what needs to be done to meet those needs. From September 2014 to April 2018 all children on statements transferred to EHC plans. As well as education, the EHC plan includes the health and social care needs of the child. Councils must review EHC plans yearly.
7. When a child is transferring between key phases of their education, such as from primary school to secondary school, the council must review and amend the EHC Plan by 15 February of the calendar year of the transfer.
8. Once the Council completes the EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider has the duty to deliver the health care provision.
9. The statutory guidance states the educational provision in the EHC Plan must be detailed and specific and should “normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise”.

What happened

10. Y has had a statement of special education need since January 2013. On 20 February 2017, the Council agreed to reassess Y’s educational needs.
11. The specialist assessments identified Y had complex sensory learning needs, and that without almost constant reinforcement, Y would not engage in learning. The Occupational Therapist said “75% of [Y’s] day should be supported by an adult who understands [Y’s] needs and learning style, to appropriately provide instruction, prompts and implement sensory interventions when required”.
12. The Educational Psychologist said “without direct intense 1:1 support he does not actively engage and therefore does not learn and progress. However, each time he is given the support it reinforces his view this is the only way he can engage with learning”. The Educational Psychologist said Y needed adult support to introduce a task and remain focussed, Y also needed to be encouraged to develop his own ability to lean and self-motivate.
13. Following these assessments, the Council agreed to pay Y’s school, School G exceptional funding for Y, so he would receive full time one-to-one support while in school.
14. School G completed the annual review of Y’s EHC Plan on 19 October 2017. On 29 November 2017, the Council sent Mrs X a decision letter to say it would be making amendments to the EHC Plan and it would send the amended EHC Plan out in the next few weeks. It issued the final EHC Plan 11 May 2018. It named School W as Y’s school as of September 2018. School W is a special school for children with severe and profound learning difficulties.
15. Y’s EHC Plan said “95% of [Y’s] school day should be supported by an adult who understands his needs and learning style, this support should gradually be withdrawn to promote independence”. The EHC Plan said Y needed to be taught individually or in small groups. It highlighted multiple types of learning opportunity where Y would need one-to-one support.
16. Mrs X contacted School W in July 2018, to ensure the one-to-one provision would continue for Y when he started his secondary placement.
17. School W responded to Ms X and said the Council had not agreed to additional funding for Y to receive one-to-one support for 95% of his school day. It said Y’s EHC Plan was “very open to interpretation and could be viewed as a teaching assistant being with him for 95% of his school day or an adult in some way supporting him for 95% of the school day (e.g. class teacher).” They said Y’s EHC Plan “hints one-to-one support but does not categorically state it.”
18. Mrs X contacted Y’s Council caseworker and raised her concerns about the response she had received from School W. The caseworker spoke to School W. School W said they felt Y could manage in class with a two-to-one teaching ratio and there was no stipulation in Y’s EHC Plan for one-to-one support. The case worker explained there were specifics within Y’s EHC plan where he required one-to-one support.
19. The caseworker identified the parts of Y’s EHC Plan which needed one-to-one adult support and sent these to the Council’s finance team. She asked whether School W could be expected to deliver the provision in its existing budget or whether exceptional funding was needed. The finance team said it had discussed Y with School W and had not agreed further exceptional funding for Y as his needs were not considered to be complex enough for additional contributions.
20. On 25 July 2018, Mrs X complained to the Council about the lack of agreed one-to-one support when Y started secondary school. The Council said it had not reduced or removed provision for Y. It said it was confident School W could meet Y’s needs based on its basic staffing levels of one teacher and teaching assistant to every 8 pupils. It said Y would have periods of one-to-one support.
21. Y started School W in September 2018, without agreed funding for one-to-one support in place. On 1 October 2018, the Occupational Therapist completed an annual review of Y’s needs. The report said Y needed to continue to have a high level of support and that 75% of this should be on a one-to-one basis.
22. On 1 October 2018, Mrs X sent a further complaint to the Council. The Council arranged a meeting with Mrs X and School W. In that meeting the Council said School W did receive enough funding to deliver the educational provision specified in Y’s EHC Plan, including one-to-one support.
23. On 23 October 2018, the Council sent Ms X its final complaint response. It did not uphold her complaint. It said it was aware that Y’s annual EHC Plan review was due, and that would provide the opportunity for “any ambiguity around provision to be removed”. If Mrs X remained unhappy, the Council directed her to the Ombudsman.
24. On 2 November 2018, School W held Y’s annual EHC Plan review. In that meeting there was still disagreement between Mrs X and the School about how much one-to-one education it should be providing. The Council was unable to attend that meeting.
25. In February 2019, the Council met with Ms X to discuss and issue Y’s EHC Plan. The Council amended the EHC Plan to specify that Y should receive one-to-one support for 75% of his school day.
26. In March 2019, Mrs X complained to the Ombudsman that despite agreeing to the one-to-one provision, school W was still not providing it.
27. In April 2019, the Council agreed the exceptional funding for School W. It agreed to backdate the funding to February 2019, as that was when it finalised the EHC Plan.

My findings

28. When a child is transferring between key phases of their education, the Council must review and amend the EHC Plan by 15 February of the calendar year of transfer. The Council reviewed Y’s EHC Plan in October 2017. It did not issue the final EHC Plan until May 2018. That was a delay of three months. That was fault.
29. The delay in issuing the final EHC Plan did not affect Y’s educational provision as he was at School G. However, it caused Mrs X uncertainty and frustration, as she wanted to know what school the Council were naming on the EHC Plan. It also prevented Mrs X from addressing the concerns about one-to-one provision sooner.
30. When Y started School W, his EHC Plan said that 95% of his day should be supported by an adult who understood his needs. School W said that did not mean Y needed one-to-one support. The Council wrote to Mrs X and said School W would provide the educational provision specified in Y’s EHC Plan on its existing staffing. The Council did not pay exceptional contributions to School W. That was fault because:
• Y’s EHC Plan states that 95% of Y’s day should be supported by an adult and “this support should gradually be withdrawn to promote independence”. That indicates the EHC Plan was written with an expectation that Y would receive a specific amount of one-to-one adult support daily, which the Council would steadily withdraw.
• The Council paid exceptional contributions to School G based on the EHC Plan in place while Y was at School G. That ensured he received one-to-one support. The Council did not finalise that EHC Plan until the funding for one-to-one support was agreed. That EHC Plan remained in place when Y moved to School W. It did not remove provision. Therefore, it was fair for Mrs X to understand the same level of provision would follow Y into his secondary school, based on what had previously been agreed with the Council.
31. The Council’s stage two complaint response to Mrs X states that the annual EHC Plan review would provide the opportunity to remove ambiguity from the EHC Plan. If the EHC Plan was not clear and ambiguous to either School W or Mrs X, that was fault. However, whatever the wording of Y’s EHC Plan, we do not accept the Council was in any doubt about Y’s needs. The Council was at fault for failing to provide education in-line with Y’s assessed needs between September 2018 and April 2019.
32. That fault has caused Mrs X a significant injustice. She has gone to great deal of time and trouble raising her concerns with School W and the Council. She said that she had to spend every evening completing academic work with Y so he would not fall behind. She said it has affected how they spend time as a family.
33. Y has also had two terms of education where he has not received the level of support described in his EHC Plan. The Ombudsman usually recommends a remedy of between £200 - £600 per month to acknowledge the impact of the loss of education. Given as this loss took place during Y’s transfer from primary to secondary school and as the Educational Psychologist’s assessment states “without direct intense 1:1 support he does not actively engage and therefore does not learn and progress”; the Ombudsman view is that £400 for each month Y was without one-to-one education for 75% of his school day would be an appropriate financial remedy. In total, Y had 23 weeks at school where he did not receive education as specified in his EHC Plan.

Agreed action

34. Within one month of the final decision, the Council has agreed to:
• Pay Mrs X £2300 as a symbolic payment to acknowledge the disruption and to make up any shortfall to Y’s education.
• Apologise to Mrs X for the avoidable distress caused by not ensuing the correct educational provision was in place for Y when he started school in 2018 and pay her £200 to remedy this and the efforts, she has made to support him.

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Final decision

35. The Council was at fault for not providing the education provision specified in Y’s EHC Plan. The council has agreed to financially remedy the injustice caused, therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman