Summary: The Council failed to provide the IT equipment and software listed in Ms X’s child’s Education, Health and Care Plan. This has negatively affected her son’s education. The Council has agreed to apologise, provide the items needed and make a symbolic financial payment to Ms X. It has also agreed to put in place appropriate training for staff to prevent this happening in future.

The complaint

1. Ms X complained the Council failed to provide her child, Z, with IT software and a laptop which his Education, Health and Care Plan (EHC Plan) stated that he needed.
2. Ms X says because of this he has not been able to record his work properly and his ability to learn and express himself through his schoolwork has been negatively impacted.

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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 considered the information provided by Ms X and the Council.
7. I considered the relevant law and guidance as set out below.
8. I considered our Guidance on Remedies
9. I considered comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans

10. Children with complex needs might need an EHC Plan. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to ensure the special educational provision in an EHC Plan is made available. (Section 42, Children and Families Act).
11. 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)

Reasonable adjustments

12. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.

What happened

13. Z is disabled and has an EHC Plan. The Council completed his Annual Review of his EHC Plan in February 2021. This was ahead of his move from primary to secondary school in September of the same year.
14. Z’s EHC Plan says his disability causes him to have low muscle tone which means he tires more easily. It also says he has ‘significant’ difficulties around expressive language skills. However it says he has started using ‘read-a-aloud’ IT software in primary school, which has had an ‘incredible’ impact on his ability to express himself.
15. The Annual Review said to meet Z’s needs, this IT software should be trialled at secondary school and he should have access to “IT equipment in order to record his work throughout the school day”.
16. Section J of his Annual Review provided a budget for a new laptop, a keyboard and the relevant IT software.
17. A disagreement later occurred over whether the Council or the school should fund the IT software and laptop that Z needed. This led to a Council Panel meeting in May 2021 which decided that the school should fund the cost of the laptop and the IT software.
18. Ms X complained to the Council about this. The Council did not dispute in its complaint response that Z needed the equipment and software but said that the school should fund it instead of the Council as it should be considered a ‘reasonable adjustment’ for Z under the Equality Act.
19. Ms X said the school eventually purchased the IT software for Z but not the new laptop. Ms X said this has caused problems for her son, as the only device the IT software is compatible with currently is his old laptop from primary school.
20. Ms X said that because of her son’s disabilities, which are specified in his EHC Plan, his old laptop is too heavy to carry around his secondary school, meaning he uses the software much less often than he should. She said not having the new laptop has had a negative impact on Z’s education and his ability to express himself.

My findings

21. The Council has made the decision to hold the school responsible for funding the child’s SEN provision through the school’s duties under the Equality Act, rather than the Council delivering it through its duties under the Children and Families Act. It is not for the Ombudsman to interpret the law in this way and would be a matter for the courts.
22. The Council has a non-delegable duty to secure the SEN provision in a child’s EHC Plan. The Council failed to secure the laptop and IT software it said it would from September 2021 to date. This is fault.
23. As a result, Z did not receive the provision in his EHC Plan for approximately four months (this figure excludes four weeks of school holidays) and the matter remains ongoing. According to his mother and the information we have about him from his EHC Plan, this has affected his education and his ability to express himself during an important transition year from primary to secondary school.

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Agreed actions

24. Within one month of the date of the final decision, the Council has agreed to:
• apologise to Ms X;
• provide a replacement laptop for Ms X’s son using the personal budget set out in his EHC Plan;
• pay Ms X £800 for the four months between the start of secondary school and the date of our final decision, during which her son was without the laptop that his EHC Plan said he needs;
• pay £200 per month for any subsequent month/s that he is without the replacement laptop;
• determine the number of weeks Z had no access to the IT software he required, and pay Ms X an additional £50 for each of those weeks; and
• remind staff through appropriate training of the Council’s non-delegable duty to secure the SEN provision set out in Section F of a child’s EHC Plan.

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Final decision

25. I have concluded my investigation. I have found fault leading to injustice and the Council has agreed to carry out my recommendations.

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Investigator's decision on behalf of the Ombudsman