Summary: Mrs X complained that the Council failed to provide all the provision set out in her daughter’s Education, Health and Care plan. Mrs X said this meant her daughter missed out on provision she was entitled to, and it caused Mrs X unnecessary distress and frustration. We find there was a service failure which caused Mrs X and her daughter injustice. The Council will apologise and make a payment to Mrs X to reflect the injustice caused.

The complaint

1. The complainant, who I refer to here as Mrs X, complained that the Council failed to provide all the provision set out in her daughter’s Education, Health and Care plan.
2. Mrs X said this meant her daughter missed out on provision she was entitled to, and this impacted on her mental health and school attendance. Mrs X said this meant she had to take unnecessary time off work to look after her distraught child, attend meetings, and chase the Council. She said it caused her unnecessary distress and frustration.

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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 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)
5. 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.
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 considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
8. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

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What I found

What should have happened

9. Education, Health and Care (EHC) plans set out the special educational provision required to meet a child’s special educational needs. Councils have a legal duty to provide the special educational provision set out in the EHC plan. Councils 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

10. Mrs X’s daughter, D, has special educational needs and an Education, Health and Care (EHC) plan.
11. In August 2022, the Council issued D’s EHC plan. It set out all the special educational provision she was to receive at her mainstream school.
12. In September, Mrs X wrote to the Council with her concerns that the school was not providing all the provision it should have been, in line with the EHC plan. In its response, the Council said it was satisfied that the school was delivering the provision set out in D’s EHC plan.
13. In October, Mrs X complained.
14. In its complaint response in November, the Council set out what the school was providing, but also acknowledged that it was not providing certain elements of D’s provision. In particular, the Council recognised that the school was not providing:
• handouts for D in a larger font size and on coloured paper;
• pre-teaching material for Mrs X to go through with D using an online system;
• a small group educational setting with a teacher with specialist knowledge and experience of working with children with D’s needs for the majority of her lessons; and,
• ‘messy’ or sensory play.
15. The Council said it would follow this up with the school to make sure these happened, where possible. But it said the school was not able to provide the small group educational setting or the messy play because these are not things a mainstream school can provide.
16. In February 2023, Mrs X brought her complaint to the Ombudsman.
17. In March, the Council told Mrs X it had met with the school. It went through the provision set out in D’s EHC plan and told Mrs X how it planned to make sure the school was providing all of the provision.

Analysis

18. Mrs X complains that the Council failed to provide the provision set out in her daughter D’s Education, Health and Care (EHC) plan.
19. In reaching the below findings, have considered all of the provision set out in D’s EHC plan. I have also taken into account the law, which says councils have a legal duty to provide the special educational provision set out in an EHC plan. The law also says if a school’s resources cannot make the provision outlined in an EHC plan, the council must provide it.

Handouts

20. The EHC plan says the school should provide handouts for D in a larger font size and on coloured paper.
21. Mrs X says D only gets handouts on coloured paper for one of her classes, and they are not consistently the right font size. She says there have been no other handouts in the correct format.
22. The Council accepts that this is not being done consistently or for every class. This is a service failure. The Council says it was proactive in trying to get the school to provide this, and did all it could to ensure this provision was provided. While I understand the difficulties the Council had with the school, this does not relieve the Council of its duty.
23. I find this caused D injustice because she has not had access to learning materials in a format she can easily understand and best learn from.

Pre-teaching material

24. The EHC plan says the school should provide pre-teaching material for Mrs X to go through with D. This is to be done using an online system.
25. Mrs X says the school should have given her access codes for the online system so she could access the pre-teaching material. She says she got some codes earlier in the school year, but did not get all of the access codes until May 2023.
26. I find the Council chased the school to get these access codes for Mrs X. However, these should have been provided sooner. The fact that Mrs X did not have access to the pre-teaching material is a service failure. The Council says it did all it could to get the school to provide these codes. While I understand the difficulties the Council had with the school, this does not relieve the Council of its duty to make sure the provision set out in the EHC plan is provided.
27. This caused D injustice because she did not get all of the educational provision she should have.

Small group setting

28. The EHC plan says the school should provide a small group educational setting with a teacher with specialist knowledge and experience of working with children with D’s needs for the majority of her lessons.
29. Mrs X says she understands that it is difficult for a mainstream school to make this provision. But she says this was recommended by an occupational therapist, and is in the EHC plan, so it should be provided. I agree.
30. The Council accepts that the school has not provided this. It says the school is not able to make this provision, and says this kind of provision is not possible in a mainstream school. The Council says it proposed a special school but Mrs X’s preference was for D to remain in the mainstream school.
31. This is a choice Mrs X is entitled to make. The Council had a duty to provide the educational provision set out in D’s EHC plan. The fact that the school was not able to make that provision does not relieve the Council of its duty. For this reason, I find this was a service failure.
32. I find this caused D injustice because she has not been receiving the provision set out in her EHC plan.

‘Messy’ play

33. The EHC plan says the school should provide ‘messy’ or sensory play for D.
34. Mrs X says this has never taken place.
35. The Council accepts that this has never taken place. This is a service failure. The Council says the school is not able to provide this provision. This does not relieve the Council of its duty to provide the provision set out in the EHC plan.
36. I find the injustice to D is the impact of the missed provision she was entitled to.

The rest of the EHC plan provision

37. Regarding the rest of the provision set out in D’s EHC plan, I find no fault or service failure with the Council.

Injustice to Mrs X

38. I find the above service failures caused Mrs X injustice in that they caused unnecessary and avoidable distress and frustration.

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Agreed action

39. Within four weeks of this decision, the Council will apologise to Mrs X and D in writing for the injustice caused to them both.
40. Within four weeks of this decision, the Council will make a payment to Mrs X of £800 to remedy the injustice caused to D and Mrs X. This is made up as follows:
• the Ombudsman’s published guidance on remedies says we usually recommend a payment of between £900 and £2400 per term for the injustice caused by failing to make all the provision set out in an EHC plan. However, in some cases, we can recommend a higher or lower payment depending on certain factors. This is decided on a case-by-case basis.
• I have taken into account the provision and support D received during this time, along with her level of special educational needs, and where she is in her academic career. I have also taken into account the difficulties the Council had with the school, and the actions the Council took to try and ensure all the provision was provided. I therefore consider a payment of £200 per term is appropriate and proportionate for the impact of the missed special educational provision in this case.
• I find the provision should have been in place for the academic year 2022/23, so this is three terms of injustice to be remedied.
• Three terms multiplied by £200 per term is £600.
• I also recommend a payment of £200 to remedy Mrs X’s unnecessary and avoidable distress and frustration. This is in line with the Ombudsman’s published guidance on remedies.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation. I find a service failure which caused Mrs X and D injustice. The Council will take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman