Summary: There was fault by the Council in failing to secure part of the special educational provision provided for in an EHC plan and in failing to respond to concerns alerting it to the fact provision was not fully in place. The Council will apologise, pay a financial remedy and make service improvements.

The complaint

1. Ms X complains the Council failed to ensure all the provision in Section F of her son’s Education, Health and Care (EHC) Plan was secured from 2016 to date. Ms X says as a result her son did not receive all the special educational support he was legally entitled to. Ms X says this had a negative impact on his learning.

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The Ombudsman’s role and powers

2. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. The Council is responsible for making sure that arrangements specified in an 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.

9. 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)

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How I considered this complaint

10. I have considered information provided by the Council and Ms X including correspondence between Ms X, the School and the Council.
11. I have considered relevant law and guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Educational Needs and Disability Code of Practice (‘The Code’)
• The Ombudsman’s Focus Reports ‘Education, Health and Care Plans: our first 100 investigations’, October 2017 and ‘Not going to plan? Education, Health and Care Plans two years on’ October 2019.
• The Ombudsman’s Guidance on Remedies.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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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What I found

EHC Plans and Provision

14. The Code gives councils guidance about the special educational needs and disability (SEND) system for children and young people including how to administer EHC plans.
15. A child with special educational needs may have an 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 which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of the school or other institution to be attended.
16. EHC plans should be reviewed by the council at least every 12 months.
17. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 of the Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a Council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
18. The Ombudsman expects Councils to have systems in place to check that provision in an EHC plan has been secured and is being provided to a child or young person. (Not going to plan? Education, Health and Care Plans two years on’)

Chronology of events

19. Ms X’s son, whom I shall refer to as Y, has SEND. In September 2016 Y moved from mainstream primary to a special school. His EHC plan was amended on 23 June 2016 to name his current and next placement.
20. The EHC plan stated Y would receive one to one support daily and a personalised curriculum in literacy and numeracy, speech therapy, a home school diary and other special educational provision (SEP). The primary school placement was funded for a full-time Learning Support Assistant (LSA) until September 2016, when a special school placement would be funded.
21. At the preceding transfer review meeting in March 2016 Ms X said she wanted fulltime one to one support to continue. Ms X told me, and her correspondence with the Council confirms, that her expectation was that Y would continue to receive one to one support when he moved to the special school.
22. Ms X said she enquired about dual schooling (mainstream and special split placement) and was told by the Council this was not possible. Ms X said she found out that a dual placement was a possibility only after Y had settled into his new school. The Council told me in response to my enquiries that it accepts an administrative error was made when it initially informed Ms X that dual schooling was not possible.
23. The Council told me the new school was provided with a copy of the plan and agreed it could meet Y’s needs.
24. Ms X told me the Council decided after the March 2016 transition review the EHC plan should largely remain the same to allow the new school to assess Y’s needs, with any changes made at the next review in March 2017.
25. Ms X says when the plan was updated in June 2016 the wording in Section F provision for SEP was the same for both placements, but while one to one support was costed for mainstream the plan just stated ‘special school’ from September.
26. The special school has small class group teaching with a high staff to pupil ratio, but its model did not include one to one support to individual pupils. It is apparent from what was found when Ms X’s complaint was investigated in 2020 that the special school never intended to provide one to one support to Y but considered its small group teaching model would meet Y’s needs. From the School’s perspective the EHC plan wording did not reflect the provision that was intended.
27. Ms X says it was never explained to her that the provision in special school would not be one to one. Ms X says if she had known she would have appealed the June 2016 final plan to Tribunal and reconsidered the move from mainstream. Ms X says the wording in the Plan about one to one did not change so she did not appeal.
28. When Y started at the special school, Ms X was unhappy with the level of support. Y was not receiving any one to one support and the home school diary was not being completed so she did not know how Y was doing at school (as he could not communicate this himself). Ms X asked the Council to show her Y’s costed provision map but the Council explained there wasn’t one as special schools were funded differently.
29. On 12 September 2016 Ms X asked the Council to contact school and find out why Y’s EHC plan was not being adhered to.
30. On 28 November Ms X told the Council that she was not been informed the home school diary and provision map would stop on transfer to special school.
31. From the evidence I have seen, including correspondence provided by Ms X, the Council did not intervene following receipt of Ms X’s concerns, but left Ms X to try and resolve the issues with school direct. Ms X says the Council told her to ‘compromise’ as there was nothing the Council could do about schools that did not implement provision in an EHC plan.
32. The annual review was held in March 2017 and the Council decided to make changes to the plan. Ms X says a final plan was not issued until January 2018.
33. The January 2018 did not substantially change the provision in Section F, although the requirement for a full-time LSA was removed from the column headed ‘resources and annual costs’ and this was replaced with ‘a special school planned place band 2’. The other columns continued to refer to one to one support being provided for various interventions with Y also to receive daily speech therapy. The amount of one to one support was not quantified. The home school diary was still required.
34. At the next review in March 2018 Ms X raised concerns the home school diary was not being used and information from school was limited to what lessons Y had had and not to how he had coped in lessons. The school said staff did not have enough time to provide fuller information.
35. Ms X says the Council again decided to amend the plan following the review meeting. At this point the plan was rewritten for the special school model. Most references to one to one support were removed but Y was to receive 15 minutes of speech therapy intervention daily, three hours one to one support in Maths and three hours of one to one support in English per week, and one to one support with phonics. Ms X says she rejected several drafts because the provision was not adequately specified and quantified and a final amended version was issued in September 2018. Ms X says the home school diary was removed from the plan, but she did not notice this at the time, or she would have objected to it.
36. Ms X also raised the possibility of Y returning to mainstream so he could receive fulltime one to one support but says she received little help from the Council about this and so missed the opportunity for Y to move in September 2018.
37. Ms X raised concerns about lack of adherence to the EHC plan in September 2018 and at the annual review in March 2019. Ms X says the Council told her the one to one support was a ‘legacy’ from the previous mainstream Plan. When Ms X challenged the Council on this it agreed that, even if the one to one support was in the Plan by mistake, there was a legal duty to provide it, although the Council stated this duty lay with the school. Ms X asked to explore dual placement again as she remained disappointed with Y’s progress. The Council decided to amend the plan again.
38. Ms X and the Council met in May 2019. Ms X says the Council agreed Y’s EHC Plan had not been adhered to by the school in certain areas, particularly for one to one support during all maths and English lessons. Ms X says the Council told her it would ensure this was rectified.
39. Ms X has provided correspondence with the school in the summer term where it disputed one to one support was required and later disputed the hours required.
40. In September 2019, Ms X says there continued to be problems with the special school which remained confused about the support to be provided. Ms X says support that was put in place by the special school was temporary. Ms X continued to raise concerns with the Council.
41. The Council arranged a meeting with Ms X and the school on 11 September. The school said the Council was not providing additional funding for one to one support so it was uncertain if this could be provided. Ms X asked the Council and school to resolve funding between themselves.
42. Ms X made a formal complaint in October and the Council responded in November. It said that the format of the home school communication diary was not its responsibility but it had facilitated meetings between Ms X and school to resolve issues. It said special schools have different funding and staffing arrangements and the Council caseworker at the time (2016) would have explained that provision in a special school would be different. The Council did not accept Y had regressed in his learning. It said Section F was now being implemented by school. The Council acknowledged school had been unaware of the one to one support put into the 2018 plan but had now assigned an LSA to provide this. The Council noted the school did not consider this level of support was necessary and professionals at the 2019 annual review did not specify Y required one to one support. The Council had issued a draft amended plan to reflect proposed changes to reduce support.
43. Y’s EHC plan was updated in January 2020. This version provides for one to one support in literacy and maths for 15 minutes daily with an LSA, and the home school diary to be completed weekly.
44. The Council told me in response to my enquiries that it does not consider Y has suffered any detriment to his education. It says he attended a good school tailored to his needs where he was taught in small groups by specialist trained staff. The Council says this is different to a large mainstream class where more individual support would be required.
45. I asked the Council about its process for checking that provision in an EHC plan is put in place. The Local Authority told me it consults with a school in line with statutory processes and schools will identify if they are able to meet need. It then reviews the EHC plan via annual reviews.

Analysis

Jurisdiction and scope of investigation

46. I have investigated the period from September 2016 when Y started secondary school until January 2020 when Y’s EHC plan was changed and support reduced.
47. I have exercised discretion to consider the complaint from 2016. There is clear evidence the Council was alerted to the fact the school was not adhering to the plan in 2016 on file and that there has been a continuing injustice throughout the period 2016 to 2019.
48. Ms X says that problems have persisted since the EHC plan was changed in January 2020. I do not have enough information about this period as it post-dates the Council’s final complaint response and I am not satisfied the Council has had an opportunity to respond to concerns about the reduced provision from January 2020. Ms X would need to raise this as a new complaint.
49. I have limited the scope of my investigation to the period September 2016 to December 2019.

Fault

50. An EHC plan is a legal document and there is a non-delegable duty on councils to secure the SEP in Section F of a Plan.
51. Y’s Plan required him to receive full-time LSA support at primary school and this was not changed when he moved schools. Only the column of the Plan relating to funding changed. While it may not have been the Council’s intention for Y to continue to receive fulltime LSA support, the Council had a duty to provide the SEP as set out in the Plan.
52. There is no evidence the different model of teaching was explained to Ms X by the caseworker at the time, as the Council now suggests. Ms X is clear if she had known Y would not have any one to one support from September 2016 she would have appealed the plan in June and may have sought a different placement. Ms X specifically asked about one to one support at transition. Ms X only found out the model was different in September 2016 after the appeal deadline had expired.
53. The Council held annual reviews on time and updated the content of the Plan every year. Councils can also review and issue amended plans at any point. The Council had the opportunity to correct the Plan if it considered there had been an error, or a ‘legacy’ from when Y was at a mainstream school. It did not do so until September 2018 when the Plan changed to say Y would receive 6 hours 15 minutes of one to one support per week plus support with phonics rather than full-time support, and then again in January 2020 when the one to one support was further reduced.
54. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all SEP for every pupil with an EHC plan all the time. The Ombudsman does consider that councils must have systems in place to discharge their duty under s.42 by:
• Checking the Section F provision is in place when a new or substantially different EHC plan is issued or there is a change in placement.
• Reviewing the provision via the annual review process.
• Investigating complaints or concerns that SEP in not in place at any time.
55. The Council told me it relies solely on a school stating it can meet need at draft plan stage but the Council does not go on to check that the provision is then put in place when the pupil starts at the school / the final plan is issued. This is fault as the Council has not discharged the duty to secure the provision under s.42.
56. Checking provision is in place does not need to be an onerous process. Some councils will use ‘settling in reviews’ to check the new plan and placement is working as intended, but the Ombudsman would also accept other checks such as councils corresponding with schools and parents to check things were working well or asking schools to complete checklists confirming Section F SEP is in place. There must however be some mechanism to ensure that SEP is in place at the start of any new provision or Plan.
57. Ms X directly raised concerns with the Council in September 2016. The Council was therefore on notice it was in breach of its duty under s.42 from that point. It failed to properly investigate and intervene with the school to ensure the provision was put in place as stated in the Plan. This is fault. It would also have been open to the Council to have amended the Plan in September 2016 if there had been a genuine error in the way it was drafted. This would have given Ms X a new right of appeal if she disagreed. As the Council did not correct the Plan it remained legally responsible for ensuring SEP was made exactly as worded in Section F.
58. In its response to my draft decision the Council took issue with the suggestion provision should be provided ‘exactly’ as stated. It said it ensured the provision was delivered by school, albeit in a ‘slightly different way’ as the school was a special school.
59. The law requires EHC plans to be specified and quantified such that it is ‘so specific and so clear as to leave no room for doubt as to what has been decided and what is needed in the individual case’(L v Clark and Somerset [1998] ELR). The courts have criticised ambiguous and vague language and said that the purpose of the requirement is in part to effect ‘enforceability’ (E V Flintshire 2002, IPSEA v Secretary of State for Education 2002) Provision in an EHC plan is legally enforceable by judicial review and the Ombudsman will also seek to remedy provision in a Plan that was not in fact provided. Councils and schools cannot choose to change the SEP from that stated in the EHC plan without going through the statutory procedure for amending and issuing an amended plan and giving appeal rights.
60. Some aspects of Y’s EHC plan were open to interpretation by school for example the format that a home school diary would take. The Council’s obligation was to ensure that the provision in Section F (the diary) was in place but we would not necessarily expect councils to get involved in the day to day detail of provision. If Y’s needs were not being met by the way the school interpreted Section F, then the solution would have been to clarify the wording in the Plan at the next review.
61. I find the requirement to provide one to one support was not open to interpretation and Y’s support was not provided in a ‘slightly different way’ to what the Plan stated. The Plan stated Y would receive both a special school education and one to one support. This was the Council’s choice of wording. That the Council now says Y did not require both does not alter that this is what the Plan it issued stated and Y had a legal entitlement to receive this support. Further the Council not only had an opportunity to change the Plan, but it did so, retaining one to one support in certain subjects for several hours per week. It is therefore difficult for the Council to maintain Y did not require one to one support on top of small group teaching when it issued a further Plan stating both were needed.
62. It was the Council’s responsibility to resolve the problems with school not providing the SEP, not for Ms X to do so.
63. In its response to my enquiries the Council has now accepted that if provision was not going to be delivered exactly as stated in the Plan it was up to the Council to explain that and also that the Council had the opportunity to change the Plan.
64. The EHC plan was amended in September 2018 but the provision was again not checked by the Council and the school again did not provide what the Plan required. The Council repeated the same fault as in 2016. It did not intervene to seek to ensure the SEP was correctly in place until May 2019 and it then took several weeks before the school agreed to make the necessary arrangements.
65. The Plan was changed again in January 2020. Ms X says that she continues to have difficulties with delivery of the SEP, but this is outside the scope of this investigation as the Council has not yet considered this period under its own complaint process.

Injustice

66. It is difficult to quantify the impact on Y of the loss of the targeted individual support he was legally entitled to receive but has missed out on.
67. The Council told me that the evidence did not support that Y had regressed due to problems with his provision. The evidence provided by Ms X from Y’s schools show when Y left mainstream primary he was working at Year 1 level in some areas. The special school then assessed him at working at P levels in all areas (this is below Year 1 level). The special school evidence for annual reviews then shows some progression within P levels, but it does not show that Y is working at the level he was previously assessed at by his mainstream primary (Year 1 level). Ms X is correct to say that against the mainstream primary assessment there is evidence of regression but it difficult to know whether this is genuine regression or a difference in the way the two schools have assessed attainment. The annual reviews show short term outcomes were often not met within the timeframe envisaged at the previous review.
68. I am satisfied that the loss of one to one targeted support in English, maths and speech and language is, on the balance of probabilities, likely to have had an adverse impact on Y’s education and progress although the extent of that it is difficult to quantify. I have recommended a payment to acknowledge the loss of one to one support for the period September 2016 until December 2019.
69. The loss of a service where this is a legitimate expectation this will be provided is in itself an injustice.
70. The Ombudsman’s Guidance on Remedies advises that when fault has resulted in loss of education a payment of between £200 and £600 per month is appropriate to acknowledge that loss, taking into account the provision that was made during the period and other factors.
71. I am also satisfied that the Council’s failure to take responsibility for securing the provision at the start, and when Ms X repeatedly raised concerns, has caused significant additional stress, time and trouble to Ms X and her son. Ms X describes the experience of trying to get her son’s Plan implemented as ‘horrendous’ and says she has reduced her work hours to support her son with home schooling as she felt he was not making expected progress. Ms X also described to me the upset of seeing her son regress and of having to negotiate difficult situations with the school without support from the Council.

Agreed action

72. Within four weeks of my final decision the Council will:
• Apologise to Ms X and Y for the faults I have identified.
• Pay Ms X £1000 for her distress and the time and trouble pursuing the complaint over a period of three years
• Pay Y £7200 to acknowledge the lost provision calculated as follows:
1. £300 per month from September 2016 to September 2018 when a full-time LSA should have been provided in addition to the usual provision available within a special school. Allowing for school holidays a payment of £5400 (£300 per month for eighteen months).
2. £200 per month from September 2018 until July 2019 when Y should have received one to one support for English (3 hours per week), maths (3 hours per week), phonics and speech and language. Allowing for school holidays a payment of £1800 (£200 per month for nine months).

This payment should be made in Y’s name but into an account supervised by Y’s parents and used for Y’s education or social benefit.

73. Within eight weeks of my final decision the Council will:
• Consider implementing a mechanism to check that Section F provision is in place when a final plan is issued
• Review its handling of this complaint to consider why, given the Council accepted there had been a loss of provision, no remedy was offered as part of the complaint process. This could have avoided the need for Ms X to bring her complaint to the Ombudsman.
74. Within eight weeks of my final decision the Council will report to the Ombudsman on the changes it proposes to make to ensure the fault is not repeated.

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Final decision

75. I have completed my investigation. There was fault by the Council in failing to secure all the provision in an EHC plan and in failing to respond to concerns alerting it to the fact provision was not fully in place.

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Investigator's decision on behalf of the Ombudsman