Summary: There was fault in the Council not providing all of Miss X’s daughter’s special educational provision. This fault has caused an injustice and the Council has agreed to remedy this injustice by providing a financial remedy.

The complaint

1. The complainant, whom I refer to as Miss X, says the Council delayed and failed to fully secure the provision outlined in her daughter’s education, health and care plan (EHCP), issued in January 2022.
2. Miss X says that, because of this, her daughter has suffered a loss of education, which has been to her detriment.
3. Miss X also says the Council’s actions have caused her significant distress and uncertainty.
4. I refer to Miss X’s daughter as Y.

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What I have not investigated

5. The matters complained about relate to provision in Y’s EHCP dated January 2022.
6. The Council carried out an EHCP review in January 2023. I have not considered events after that point.

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The Ombudsman’s role and powers

7. 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)
8. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
9. 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)
10. 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

11. I spoke to Miss X to discuss her complaint and considered the information she sent.
12. I wrote to the Council and considered their responses.
13. I reviewed the relevant law and guidance.
14. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should have happened

15. The council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Children and Families Act 2014, section 42). 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)
16. Where the Special Educational Needs and Disability (SEND) Tribunal orders a council to amend an EHCP, the council shall amend the plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 

What happened

17. Following a SEND Tribunal decision in mid-December 2021, the Council issued a final EHCP for Y in mid-January 2022. The EHCP said Y would attend a specialised education setting in future, but, until then, the Council would secure a package of ‘education otherwise than at school’ (EOTAS).
18. The EHCP said the Council would provide Y with a teaching assistant (TA) to provide one to one support during school hours. This included providing Y with support developing their motor skills and reporting on their progress to an occupational therapist (OT).
19. The EHCP also said the Council would secure teacher provision to provide a daily programme of activity.
20. Miss X initiated a discussion with the Council shortly after it issued the EHCP, asking for updates on progress toward the EOTAS package. Miss X then met with the Council in early February.

Teaching assistant – January to July 2022

21. In late February, the Council wrote back to Miss X accepting there had been a delay in starting some of Y’s special educational provision. It also told Miss X it was in contact with an agency to secure a TA.
22. In March, the Council said it had been trying to secure a TA but had been unsuccessful, because of a recruitment difficulty.
23. In early April, the Council told Miss X it had been in contact with two further agencies and said it was hopeful it could secure a TA, to start in the spring term. The Council followed this contact up with an email asking the agencies for an update on its earlier query.
24. After April, the Council took no action to locate a TA for the rest of that academic year.

Teaching assistant – September to January 2023

25. In July, the Council wrote to Miss X and said it had identified a TA through an agency (agency A). It said this TA would be available to support Y on a part-time basis. The Council was planning this provision from September onwards.
26. Miss X wrote back to the Council saying she had identified another agency (agency B), who also might provide a TA on a full-time basis and asked the Council to consider this.
27. The Council asked Miss X to agree it could approach both agencies, A and B, irrespective that agency A could provide Y with limited provision.
28. In late July, the Council sent a referral form and Y’s EHCP to agency B.
29. In mid-August, agency B wrote back to the Council saying it was still trying to secure a TA.
30. In late September, agency B told the Council the TA it had identified for the role, had withdrawn their application. It told the Council it was not able to provide an alternative.
31. In early October, the Council organised a meeting between Miss X and two TA’s that agency B had identified. The Council intended both TA’s, working part time, would be able to provide Y with full time provision.
32. In mid-October, after Miss X had met the TA’s, Miss X told the Council that the TA’s told her they were likely not able to fulfil the role.
33. The Council told Miss X it believed the TA’s were suitable, but accepted Miss X had reservations about them. It told Miss X it would continue to look for a suitable TA.
34. In her complaint to us, Miss X says she believes the Council did not properly ensure the candidates were suitable to meet Y’s needs.
35. In late November, the Council attempted to secure increased TA support to ‘catch up’ on earlier missed provision. The Council wanted the TA’s to work collectively in an arrangement with Y’s existing teacher.
36. In December, the teacher withdrew this offer and the Council asked agencies A and B to continue to identify suitable TA provision.
37. In January 2023, the Council carried out a further review of Y’s EHCP.
38. In response to my enquiries, the Council said it was currently working to recruit a TA.

Teacher provision

39. In early February 2022, Miss X raised her concern about Y’s teacher provision to the Council.
40. The Council offered to refund any expense Miss X had incurred through her replacing lost teaching provision.
41. Y’s teaching provision started after the February half term. Miss X said in her complaint statement this meant there was no teaching provision for approximately 5 weeks after the EHCP was finalised.
42. In a response to Miss X’s complaint, the Council accepted Y had been without teaching provision until after the half term. It reiterated its earlier point it was willing to compensate Miss X. It also said because Miss X had previously home educated Y, it assumed this would remain the case until it had been able to put the EOTAS package into place.

My findings

Teaching assistant

43. Service failure can better be described as a ‘failure to provide a service which it was the function of a council to provide’. There does not need to be any aspect of blame, intent, or bad faith involved in a council’s actions for us to find fault.
44. The Council began the search for a suitable TA in February and accepted there was an initial delay in starting the process to secure Y’s special education provision.
45. The Council was involved in several discussions to secure a TA in the academic term between February to April. It was also making efforts continuously from July onwards, to recruit a TA to coincide with the Autumn term.
46. The Council was at fault for being unsuccessful at locating a TA in the Spring and Autumn Terms – although this would be better described as a ‘service failure’. Despite its efforts it was unable to secure the provision it was required to do.
47. The Council was not fully engaged in efforts to secure provision for the Summer Term (late April-July) and as such did not secure any provision. This was also fault.
48. The faults in securing a TA caused an injustice to Miss X because of the loss of education provision for Y. I acknowledge for this period, except for that highlighted in paragraph 48 below, Y will have been receiving some provision through her teacher and other activities.

Teacher provision

49. There was a delay of just over one month in the Council securing a teacher for Y after the finalised EHCP. The Council has accepted this. There was no provision whatsoever for Y during this period.

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Agreed action

50. Within four weeks, the Council has agreed to:
• Pay Miss X £600 for the period Y was without a teacher.
• Pay Miss X £1800 for the period Y was without a teaching assistant.
51. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

52. There was fault in the Council’s actions which caused an injustice to Miss X.

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Investigator's decision on behalf of the Ombudsman