Summary: Ms D complained that the Council did not investigate her complaint properly and has not secured the provision set out in her child’s EHC plan. We found the Council’s complaint investigation should have been more thorough, but this has not caused significant injustice to Ms D. We do not find that the Council failed to secure SEN provision.

The complaint

1. Ms D complains that the Council did not investigate her complaint properly and has not secured the provision set out in her child’s EHC plan. In particular:
• Resources have not been modified.
• Books have not been put online prior to lessons.
• Guidance on use of technology (EasyReader & RNIB Bookshare) has not been given.
• Interaction with peers has not been supported and the classroom is inaccessible.
• They have not been given time to rest and staff are unaware of their fatigue and pain.
• They have not been supported to come to terms with their visual impairment or to self-advocate.
• Support from organisations has been declined.
2. As a result, her child’s attendance at school, education and mental health are suffering.

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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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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)
6. 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

7. I spoke to Ms D about her complaint and considered the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice
• The Special Educational Needs and Disabilities Regulations 2014
8. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special educational needs

9. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
10. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
11. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

What happened

12. Ms D’s child, J, has a visual impairment, autism and some problems with understanding sounds. Ms D was concerned that J’s school was not providing sufficient support and J was therefore not attending regularly. J started Year 11 at the School in September 2022. The Council met with the School in early September to discuss the provision that would be made. It issued a final EHC plan which named the School and said J required adaptations and other support.
13. Ms D and J met with the School in late September to discuss their needs and the support that would be available. J’s attendance was less than 20% that term. There had been some technical problems with computers, some resources had not been adapted and some teachers had not been prepared in advance of lessons. Ms D told me no printed material had been made accessible, one teacher had been unable to screen share, and staff were unaware of how to modify documents for J. This had caused J to feel unsupported and that there was no point in attending. Ms D and J wanted J to instead attend a specialist residential school.
14. Ms D complained to the Council on 26 September that the SEN provision was not being made.
15. The Council’s response in October 2022 was very brief. It said at its meeting with the School in early September, the School had confirmed it was putting the provision in place. It therefore did not uphold Ms D’s complaint but said officers would contact the School to discuss J’s provision.
16. Ms D came to the Ombudsman. She said the Council had failed to properly investigate the concerns she had raised about the provision. Ms D said there had already been a lack of support from the school before the EHC plan was issued. The continuing problems had caused J’s mental health to continue to deteriorate, had reduced their ability to attend “an ableist school environment”, and caused a lack of access to education. She also appealed to the Tribunal about the contents of the EHC plan and the school named.

The Council’s response to my enquiries

17. The Council said the provision set out in the EHC plan has been made available for J. It said:
• Resources have been adapted and a learning mentor allocated to produce the materials in advance, although there had been times due to staff absence that this had been missed.
• It was not always the teacher’s responsibility to download books. The School had discussed with J how to do this.
• School staff had sat with J on multiple occasions to give guidance on technology.
• Interaction with peers was supported.
• J had a reduced timetable, reduction in option choices, and had had support from staff in relation to their fatigue and pain.
• The School would be referring to specialist services to support J to come to terms with their visual impairment and had offered J the opportunity to talk to and work with other visually impaired students.
• The Council had no authority over support provided by outside organisations and charities.
18. Ms D says the School’s guidance to J on technology had not been successful, J’s anxiety had increased due to poor interaction with peers, and on many occasions J had had to go home due to pain or had been put in isolation due to being unable to attend lessons. J had not been offered to meet with other visually impaired students.

My findings

19. I appreciate Ms D’s concerns about provision for J. There were incidents in September when the provision had not been fully made (such as resources not being adapted if a teacher was absent). There was confusion about downloading books. The EHC plan says J should have access to books online, and that “school will join RNIB Bookshare and download books for J using the Dolphin Easy Reader app.” In response to my draft decision, Ms D sent evidence that she had downloaded books for J, not the School.
20. I have considered very carefully whether a failure to download books means the Council had failed to secure SEN provision. My view is that it does not. But, even if it does, there was no injustice caused to J as the books were made available by Ms D.
21. Ms D considers the other provision made was insufficient or unsuccessful, but this is not evidence that the Council failed to secure the EHC plan.
22. Overall, I am satisfied the Council took steps to arrange the provision in the EHC plan.
23. I recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. But the Ombudsman considers that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
24. I therefore consider the Council should have done more in its investigation of Ms D’s complaint to assure itself that provision was in place. It should have discussed her concerns with the School before responding. It then could have set out how the provision was being made, addressed whether there had been any gaps and how say these were going to be prevented in future. Our guidance on effective complaint handling says complaint responses should be based on evidence following an investigation. I therefore find fault in complaint handling.
25. However, whilst this has caused Ms D some time and trouble in coming to the Ombudsman, I do not consider it has caused her a significant injustice that warrants a remedy.

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Final decision

26. There was fault by the Council but this has not caused significant injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman