Summary: The Council failed to provide Mr D’s son with educational support in accordance with his Education, Health and Care Plan. Mr D’s son missed out on approximately four weeks of full-time suitable education. The Council has agreed to make a payment of £400 to remedy the injustice this has caused.

The complaint

1. The complainant, whom I will refer to as Mr D, complains the Council failed to ensure the provision set out in his son’s Education Health and Care Plan (EHC Plan) was delivered. As a result, his son, whom I shall refer to as C, missed out on provision to which he was entitled at a critical point in his education.

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What I have investigated

2. The Council’s failure to deliver the provision contained in C’s final EHC Plan.

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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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I have discussed the complaint with Mr D and considered the information he provided.
7. I have considered the Council’s response to the enquiries I made including the documentation it provided.
8. I have reviewed and considered relevant law and guidance.
9. Mr D and the Council were given the opportunity to comment on a draft of this decision before I made a final decision. The Council agreed with my draft decision and the recommendations I made. I did not receive any comments from Mr D.

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What I found

Relevant law and guidance

10. 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.
11. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
12. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to ensure special educational provision in an EHC Plan is made available.
13. The responsibilities of the Council, settings and partner agencies (including health bodies) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, The SEN Code of Practice 2015 (The Code). Agencies are expected to work in an integrated way, with the child and family fully included in decisions.
14. If a child receives an EHC Plan, the Council must ensure the child receives the education specified in it.

What happened

15. C was born in 2015. He lived in two different local authority areas before starting nursery in Birmingham in September 2018. C’s needs were identified in the first local authority area the family lived but each move delayed access to services.
16. In May 2019, the Council received a request for an EHC Plan for C from the Educational Psychology Service (EPS).
17. In June 2019, C was diagnosed with Autistic Spectrum Condition (ASC).
18. In September 2019, C began attending School A, a mainstream primary school, on a part-time basis (mornings only). It was clear to School A that C needed one‑to-one support at school, so it appointed a part-time teaching assistant (TA). School A says it made the decision to appoint a TA part-time because it had not received any funding, there was no EHC Plan at the time so it didn’t fully understand C’s needs and it made the decision based on advice it had received from the nursery C previously attended.
19. On 18 October 2019, the Council issued a final version of C’s EHC Plan.
20. The EHC Plan detailed what provisions would be put in place to meet C’s needs. These included one to one support whilst he remained in a mainstream setting.
21. On 28 October 2019, a full-time timetable was devised for C. However, C continued to attend part-time due to the absence of a full-time TA.
22. On 7 November 2019, Mr D complained to the Council about it not implementing the provision specified in C’s EHC Plan and that he should be attending school full-time.
23. The Council responded to Mr D on 29 November 2019 and agreed that C attending only the morning sessions was insufficient. The Council said it requested funding for a full-time TA on 12 November 2019 and it informed the school on 18 November 2019 that the funding had been agreed.
24. The Council also said that the school had assured it that the current situation was temporary and an appointment would be made as soon as possible to make sure C is able to start attending school full-time before the end of the Autumn term.
25. On 13 January 2020, a full-time TA was employed and C began attending school full-time. The Council says the delay was due to recruitment of an appropriate candidate to support C’s needs in school as well as the Christmas holiday period.

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My findings

26. Once an EHC Plan has been prepared and finalised, the Council has a non-delegable duty to ensure the provision set out in the plan is in place. C’s EHC Plan says he requires one-to-one support whilst he remains in a mainstream setting.
27. C was initially not attending school full-time because School A was awaiting the issue of his EHC Plan to fully understand his needs so it could put appropriate provision in place for him. C’s EHC Plan was issued on 18 October 2019 and his full-time timetable was devised on 28 October 2019. The Council was aware C was only attending part time and it failed to ensure he had full-time suitable provision between 28 October 2019 to 13 January 2020. This is fault.
28. It appears from the Council’s response to Mr D that it was only after he submitted a complaint to the Council that it made a decision to allocate funds to enable School A to appoint a full-time teaching assistant for C. There is no indication from the Council’s complaint response that it had already began making the arrangements to secure the provision.
29. The Council’s complaint response also states that it will ensure C can attend school full-time by the end of the Autumn term (20 December 2019). However, C did not receive the provision until one week into the Spring term.
30. As a result of the fault, C received only half of the suitable provision over a period of approximately eight weeks (taking school holidays into account). This is the equivalent of approximately four weeks of full-time, one-to-one support. Although the delays are not significantly lengthy, C’s needs are severe, and this loss of educational provision at a critical time of his education and development is a significant injustice to him.

Agreed action

31. In this case, C’s needs are severe, he did not receive any provision in the afternoons while the Council was securing the suitable provision and he missed out on the equivalent of approximately four weeks of full-time educational provision at a pivotal moment in his education.
32. Therefore, in line with the Ombudsman’s guidance on remedies, the Council agreed to the following within one month of the date of this final decision:
• It will make a payment of £400 to Mr D to be used for the educational benefit of C, in recognition of the injustice caused to him; and
• It will apologise to Mr D for not ensuring delivery of special educational provision as required by C’s EHC Plan.

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Final decision

33. There is fault by the Council and it has agreed to remedy the injustice caused. I have concluded my investigation.

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Parts of the complaint that I did not investigate

34. Mr D complained about the lack of provision in C’s EHC Plan, specifically speech and language therapy, occupational therapy and Applied Behaviour Analysis (ABA). The law says the Ombudsman cannot challenge the contents of an EHC Plan. Only the Tribunal can look at this. Therefore I cannot consider these aspects of Mr D’s complaint.

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Investigator's decision on behalf of the Ombudsman