Summary: Mr and Mrs X complained the Council failed to ensure delivery of Special Educational Needs provision required by their daughter, Miss Z’s Education, Health and Care Plan. We find the Council was at fault, causing Miss Z to miss out on the provision. The Council has agreed to promptly arrange provision to address this. It has also agreed to confirm its arrangements for commissioning future support to Miss Z, including any learning from this complaint.

The complaint

1. Mr and Mrs X complain the Council did not ensure delivery of Special Educational Needs provision related to assistive communication technology required by their daughter Miss Z’s Education, Health and Care Plan.
2. They say this means Miss Z has not been able to communicate effectively. They want the Council to ensure this provision re-starts.

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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

6. I spoke to Mr and Mrs X about their complaint.
7. I asked the Council questions about the complaint.
8. I considered the Ombudsman’s guidance on remedies.
9. I gave the Council and Mr and Mrs X the opportunity to comment on my draft decision.

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What I found

Law and guidance

10. Councils assess children and young people who may have special educational needs. An assessment may decide the child needs an Education, Health and Care Plan (EHCP). The council must then develop and issue the plan, ensure it is reviewed annually and implement any changes from each review.
11. Section F of an EHCP sets out the special educational provision required. This must be detailed and specific. Councils must ensure children with an EHCP get the support they need. The council has a legal duty to provide the special educational provision specified in the EHCP. The council cannot delegate this duty to a school or other body. If a school’s resources, either financial or expertise, cannot make the provision outlined in the plan, the council must provide it.

Background

12. Miss Z is a child with learning disabilities. She has had a Statement of Special Educational Needs for several years, converted to an EHCP.
13. Her EHCP, dated February 2018 says Miss Z must have appropriate trained professional support to help her access and use an electronic communication device. This is essential to help her express herself effectively through her learning. The device is a tablet computer with specialist applications.
14. The plan requires support for two to three hours per term to be used flexibly for the set up and administration of the device, liaison and advice with school staff and with Mr and Mrs X. It says the person supporting this must have expert knowledge and experience of working with children with Miss Z’s condition, as well as the relevant specialist tablet applications.
15. The Council uses the Kent and Medway Communication Aid Technology Service (KMCAT). This is a regional service supporting access to specialist technology for children and young people. It works with councils and the NHS to assess needs, support provision and review whether technology is needed.
16. In January 2019 Miss Z stopped getting access to the support required by her EHCP. Mr and Mrs X chased this up with the Council and then complained to it in March 2019. The Council’s stage 1 response in April said it thought the KMCAT team had been offering flexible support. Mr and Mrs X asked for consideration at stage 2 because they said the team was not providing what the plan required.
17. The Council’s stage 2 response, in June 2019, accepted the required support had stopped in January:
• It thought, from discussion with KMCAT, that Miss Z no longer needed the level of support with the equipment that her EHCP required.
• If Miss Z needed more help, the Council would pay for provision. It had told KMCAT this.
• The Council did not know why KMCAT had not therefore kept providing the support.
• It had arranged a meeting later in the month to discuss the issues and had reminded KMCAT it would continue to buy the support.
• It would also pay for any missed sessions between January and May 2019 to meet the provision required by her EHCP.
18. The Council’s record of the meeting subsequently held in June between it, Mr and Mrs X and the KMCAT service manager said:
• The Council purchased support from KMCAT for Miss Z between June and December 2018.
• The support ended and the Council had not got commissioning arrangements in place for support for pupils with assistive technology.
• The Council had told KMCAT, when the support ended, that it would continue to pay for (“spot purchase”) the support Miss Z’s EHCP required but this support was not provided by the team.
• The Council apologised for not communicating well with Mr and Mrs X and for delays in dealing with their complaint.
19. As well as arranging follow up visits, at the meeting the Council confirmed it would fund the support required in Miss Z’s EHCP from KMCAT until a new commissioning arrangement was in place. It said KMCAT was short staffed and that there could be some difficulty delivering the support required by Miss Z’s EHCP.
20. The KMCAT team met with Mr and Mrs X in August to get an up to date picture of Miss Z’s needs. It developed a proposal for provision moving forward.
21. The Council has confirmed, in its response to my enquiries, it will work with KMCAT to arrange for Miss Z to get all the support sessions she missed including through the school summer holidays. It says it is awaiting a new report from KMCAT to amend Miss Z’s EHCP. I understand that it has subsequently issued a new EHCP. Mr and Mrs X confirm the required support has been available from September 2019.

Findings

22. The Council failed to ensure delivery of special educational provision required by Miss Z’s EHCP. This is fault. Because of this fault, Miss Z missed out on provision required by the plan from January 2019 until September 2019, two school terms.
23. The Council has agreed to provide the support Miss Z missed during this period. This is an appropriate remedy for the injustice caused to Miss Z, in doing so it should assess the impact of loss of provision during this time and do what it can to put Miss Z back in the position she would have been, but for the fault. It should promptly ensure this is provided.
24. The Council should also report to the Ombudsman on its progress arranging for commissioning of this service to Miss Z.

Agreed action

25. Within one month of my final decision the Council has agreed to:
• Ensure it arranges provision of support to Miss Z that fully addresses the provision she missed out on, required by her EHCP from February 2019 onwards, including considering and doing what it can to address any impact of lost provision.
• Provide the Ombudsman with a summary of the outcome of its commissioning arrangements for Miss Z, including any learning from this complaint.

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Final decision

26. I have completed my investigation finding fault by the Council caused injustice to Miss Z, Mr and Mrs X. The Council has agreed to carry out action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman