Summary: Mr B complains his son, Y, did not receive 1:1 support as required by his Education Health and Care Plan for over a month. He says this caused distress and negatively impacted on Y’s education. The Ombudsman does not find the Council at fault for missed provision. We find fault for the delay in responding to Mr B’s complaint, but this did not cause significant injustice.

The complaint

1. The complainant, who I refer to as Mr B, complains Y’s school removed 1:1 support that was required by his EHCP and it was a month before the Council ensured this was reinstated. He says this set Y back in his development for several months and caused significant distress. Mr B also says the school has refused to provide training by an occupational therapist (“OT”) for the new 1:1 support worker. He says this is also a requirement of the EHCP.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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)

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How I considered this complaint

6. I considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments, before making a final decision.

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What I found

Background

7. Y had an EHCP in place that was completed in June 2021. The EHCP said that Y needed access to a key adult for 1:1 during his school day. It said this must be reviewed termly and if successful a reduction plan put in place to build up Y’s independence. The EHCP also said that as Y is taught by several different teaching staff, they should all have some OT sensory training of at least one hour. A follow up training session will be needed yearly as teaching staff changes.
8. In early September 2021 Y’s school stopped providing the 1:1 in three subjects. Around two weeks later it stopped providing 1:1 support in all of Y’s lessons. This was partly due to staffing issues and the absence of Y’s previous 1:1 support worker. However, the school also considered that continued 1:1 support was not necessary and that it could review and decided no to continue this in line with the wording of the EHCP.
9. Mr B complained to the Council about the removal of 1:1 support. In the same week the Council contacted the school to ascertain why it had removed the support. The Council says the school believed it could review the EHCP and remove the 1:1 if it considered this was no longer needed. However, the Council’s view was that it could only remove the 1:1 following consultation and agreement with all parties, including Y’s parents, and after creating a reduction plan.
10. The following week, after correspondence with the school, the Council informed the school it would need to reinstate the 1:1 support. The school indicated that it had already done so by engaging an agency worker. However, it is not clear whether that was provided consistently during the week. By the following week it appears 1:1 support was fully reinstated, and a new permanent support worker then identified.
11. In December 2021, Mr B chased the Council for a formal response to his complaint. He also said the new 1:1 support worker had not received the OT sensory training as outlined in the EHCP and the school refused to provide this.
12. In June 2022, the Council responded to Mr B’s initial complaint about the removal of 1:1 support. It did not uphold the complaint as it found it had acted in a timely way to ensure the provision was reinstated, after it became aware of its removal.

Findings

13. I have investigated the following points:
• Removal of 1:1 support
• OT training for the 1:1 support worker
• Complaint response

Removal of 1:1 support

14. It is clear Y went without 1:1 support that was required in his EHCP for at least a month in three subjects, and around two weeks in all subjects. However, I can only consider the actions of the Council and not the school, as the school is not within our jurisdiction on this matter.
15. The Council is the body responsible for ensuring Y receives the provision in the EHCP. Councils should do due diligence when a new or substantially amended EHCP is put in place, to check it is being provided. However, it is not practical for councils to keep a ‘watching brief’ on provision. Where, as in this case, the school removed the provision without notice, I can only consider the Council’s actions from the point it became aware.
16. The Council only became aware of the removal of 1:1 support around two weeks after it was removed from three lessons. It acted quickly to ensure the school reinstated the 1:1 within one, or at the most two weeks of the date it became aware. Therefore, I do not find fault with the Council in the way it responded.
17. I understand the removal of 1:1 support caused distress and Mr B says this impacted on Y’s engagement at school. However, I can only consider a remedy for injustice that follows from the fault. In this case I have not found fault with the Council so have not made a recommendation.

OT training for the 1:1 support worker

18. I have read through the paragraph in the EHCP that references OT training. It says this is necessary for teaching staff. I understand Mr B may consider that a teaching assistant providing 1:1 support will form part of the teaching staff. However, the way the paragraph reads does seem to suggest it is focused at teachers, and it does not make any specific reference to the training also being required for 1:1 staff. Therefore, I cannot challenge the Council’s interpretation that it is not a requirement for the 1:1 worker to receive this training.
19. I also note that it says follow up training should be provided yearly as teaching staff changes. It does not say training should be provided on an individual basis to teachers or other staff that change during the school year. Therefore, even if the intention was to include the 1:1 worker, it would only have been required to involve them in the yearly follow up training. There is no requirement, that I can see, for individual training to be provided at the point any staff member changes.

Complaint response

20. Mr B made a formal complaint in late September 2021. He chased for a response in December 2021 and at that point raised the issue of OT training. The Council did not provide a formal response until June 2022.
21. The Council says the delays were due to difficulties obtaining information from the school. However, it is not clear what further information it needed to respond. It had dealt with the main issue by reinstating 1:1 and its response in June 2022 would have been the same, based on the same information as if it had responded in October 2021. It’s June 2022 response also does not comment on the OT training, so the first Mr B will have received an indication of the Council’s position on this will be through its response to my enquiries.
22. Even if there were difficulties obtaining information, eight months is significantly longer than the Council’s timescales for responding to a complaint and there is no indication it updated Mr B with the difficulties it was having. Due to the significant length of time it took to respond to the complaint, and because it did not address all the issues Mr B raised, I have found this was fault. However, I recognise the Council dealt with the main issue of 1:1 being removed in a timely way in September and October 2021. Mr B should have received a response about the OT training for the 1:1. However, it would not have changed the outcome as the training does not appear to be required in line with the EHCP. Therefore, on balance, I do not find the fault caused a significant injustice and have not made a recommendation.

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Final decision

23. The Council is not at fault for missed provision from the EHCP. There is fault in the Council’s complaint response, but this did not cause a significant injustice.

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Investigator's decision on behalf of the Ombudsman