Summary: Ms X complained that the Council failed to provide the special educational provision set out in her child’s Education, Health and Care plan. She also complained that the Council communicated poorly with her. Ms X said her child lost out on education, and Ms X lost trust in the Council. We find the Council at fault for failing to provide all the provision in the Education, Health and Care plan. This caused injustice because the child missed out on provision she was entitled to receive. The Council has agreed to apologise and make a payment to remedy the injustice caused. We do not find the Council at fault for the way it communicated with Ms X.

The complaint

1. The complainant, who I refer to here as Ms X, complained that the Council failed to provide the special educational provision set out in her daughter’s Education, Health and Care plan. She also complained that the Council communicated poorly with her.
2. Ms X said this meant her daughter was not getting the education she was entitled to. Ms X said it had a significant impact on her own mental health, and meant she lost trust in the Council.

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What I have investigated

3. Ms X complains about special educational provision set out in her daughter’s Education, Health and Care (EHC) plan. The final EHC plan was issued in mid- May 2021. A final EHC plan sets out what provision is to be provided from that date onwards. For this reason, I have started my investigation from mid-May 2021, and not from when Ms X’s daughter started at the school (end of April 2021).
4. Ms X told me the rest of the provision set out in the EHC plan was in place by the end of October 2021. For this reason, I have not investigated beyond this point.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. If we are satisfied with an organisation’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)
8. 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

9. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
10. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

11. Section F of an Education, Health and Care (EHC) plan sets out the special educational provision required to meet a child’s special educational needs. This must be detailed and specific. Councils have a legal duty to provide the special educational provision specified in the EHC plan. 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.

What happened

12. Ms X’s daughter, C, has special educational needs and an Education, Health and Care (EHC) plan. At the end of April 2021, C started at a new school. In mid-May, the Council issued C’s final EHC plan. This set out what special educational provision C should receive at school.
13. In May and July, Ms X told the Council the school was not providing all the provision in C’s EHC plan. The Council followed this up with the school.
14. In September, Ms X complained to the Council.
15. In November, the Council sent its complaint response. It recognised that not all the provision was in place during the summer term. It said the school had a plan to put the rest in place in the autumn term. It said all the provision set out in C’s EHC plan was now being provided, except for parts that needed Ms X’s input.
16. The Council said it had been in regular contact with Ms X. It said it responded to issues as they had arisen and followed up Ms X’s concerns with the school.
17. Ms X then complained to the Ombudsman.

Analysis

Special educational provision

18. Ms X complains that the Council failed to provide the special educational provision set out in her daughter C’s Education, Health and Care plan.

Regular communication

19. The EHC plan says there will be regular (at least half-termly) communication and review between Ms X, school, and all those supporting C to ensure a consistent approach.
20. Ms X says this has never happened, there have been no meetings, and there has been no communication.
21. I find there was a meeting in June between the school, the Council, and Ms X to review C’s progress. This was half-way through C’s first term.
22. The Council told Ms X it planned to review C’s EHC plan in September. Ms X told the Council she did not want a review. The Council says it used this time to have an informal meeting with Ms X.
23. I find another meeting took place in October. Ms X was not happy that a relevant school officer could not attend for long. The Council rearranged this meeting for another date to provide more time. Ms X told the Council she did not want to attend this meeting, so this did not go ahead.
24. Ms X and the Council have provided me with copies of numerous emails sent between all parties over the period of time I have investigated. I find there was regular communication and review. This may not have been to Ms X’s liking, but I find the communication and meetings meet the requirement as set out in C’s EHC plan. So, I do not agree with Ms X that there was no regular communication and there were no meetings.
25. For this reason, I do not find the Council at fault here.

Emotional literacy intervention

26. The EHC plan said there would be weekly emotional literacy intervention by an Emotional Literacy Support Assistant (ELSA).
27. Ms X says this did not happen in the first term.
28. The Council agrees this was not in place until September 2021. It says this was because the school did not have trained staff to deliver this.
29. As I have said above, if a school’s resources, either financial or expertise (as in this case), cannot make the provision outlined in the plan, the council must provide it. In this case, the school told the Council in May that it did not have a trained ELSA, although it was training someone. At this point, the Council should have made sure it provided this provision. It did not. This is fault.
30. This fault caused C injustice because C missed out on the emotional literacy intervention she was entitled to receive from mid-May to the end of summer term.

Adult-supported club

31. The EHC plan said C would get help to attend an adult-supported club centred around an area of interest for C.
32. Ms X says this has not happened.
33. The Council says it can find no evidence this was put in place. The Council says it, and the school, looked at this as being an out-of-school club that Ms X would facilitate.
34. I find this is not what the EHC plan says. The Council is ultimately responsible for writing the EHC plan. The Council recognises that this was set out in C’s EHC plan which meant it should have been provided.
35. This part of C’s EHC plan was not provided. This is fault. This caused C injustice because she did not get the provision she was entitled to receive.

Other parts of the EHC plan

36. The EHC plan said C would get a visual timetable. The Council says the school said it did not feel C needed this. The Council says it told the school that it had to provide this because it was set out in C’s EHC plan. The school reinstated it immediately.
37. This was not provided for C in line with her EHC plan, so this is fault. This caused C injustice because she did not receive all the support she was entitled to receive.
38. The EHC plan also said C would get opportunities to share her interests and ‘teach’ a skill (an area of strength) to another child or group of children.
39. The Council says the school felt it would be difficult for C to do this with new peers in a new class. The school did not want C to be singled out.
40. I understand the school’s view on this, and the impact being singled out may have had on C. However, the law is clear: provision set out in an EHC plan must be provided. The school should have found a way to implement this that did not have a significant or detrimental impact on C, rather than deciding on its own not to provide this provision.
41. This provision was not provided in line with C’s EHC plan. This is fault. This caused C injustice because she did not get all the provision she was entitled to receive.

Sending the EHC plan to the school

42. Ms X complains that the Council did not send C’s EHC plan to her school until mid-May 2021.
43. I do not agree. The evidence shows the Council sent C’s EHC plan to the school in March, before C started at the school in April, as part of its consultation process. Therefore, I do not find the Council at fault here.

Communication

44. Ms X complains that the Council communicated poorly with her.
45. Ms X says she wanted two meetings: one to resolve what happened and her previous appeal of C’s EHC plan; and one to review C’s EHC plan. She says the Council insisted on one meeting which was only for an hour. She also says the Council cancelled a meeting.
46. Councils cannot always hold as many meetings as parents would like. The Special Educational Needs and Disability Code of Practice says councils should keep the number of meetings to a minimum. I cannot find the Council at fault, because I find the Council offered and arranged a number of meetings, including ones Ms X said she did not want to attend. This was her choice. However, it is not evidence of fault that the Council did not hold separate meetings or meetings of a length Ms X preferred.
47. Ms X complains that the Council took weeks to respond to emails and phone calls.
48. The Council says it often cannot respond to emails or phone calls on the same day. It says it usually responded to Ms X within a few days, with a maximum of two weeks.
49. I have reviewed the evidence of phone calls and emails, provided by both Ms X and the Council. I find the evidence shows that on the whole the Council responded to Ms X within a short period of time.
50. I do not find fault with the way the Council communicated with Ms X.

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Agreed action

51. Within four weeks of this decision, the Council has agreed to apologise to Ms X and C in writing for failing to provide all the provision set out in C’s EHC plan.
52. Within four weeks of this decision, the Council has agreed to make a payment to Ms X of £500, to be used for C’s education. In arriving at this figure, I have considered the Ombudsman’s published guidance on remedies. This says remedies for missed special educational provision are usually £200 to £600 per month of missed provision. It also sets out other factors which I have considered, specifically:
• C’s special educational needs;
• the fact that almost all of the provision in C’s EHC plan was provided;
• C’s place in her educational career;
• the length of time provision was not provided; and,
• the type and amount of provision that was not provided.
53. The Ombudsman will need to see evidence these actions have been completed.

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Final decision

54. I have completed my investigation and I find the Council at fault for failing to provide all the provision set out in C’s Education, Health and Care plan. This caused C injustice because she missed out on provision she was entitled to receive. The Council has agreed to apologise to C and Ms X, and make a payment to Ms X to reflect the injustice caused.
55. I do not find the Council at fault for the way it communicated with Ms X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman