Summary: Mrs D is making a complaint for her son (Mr P) who has special educational needs. Mrs D says the Council failed to support Mr P by meeting the identified provision in his Education and Health Care Plan (EHCP) which it must provide. She adds the Council’s handling of her concerns has been inadequate. We found the Council was at fault for a delay in providing the needed EHCP provision. The Council’s communication with Mrs D was not satisfactory as it failed to keep her updated and address her legitimate concerns. These failings caused an injustice and the Council has agreed to our recommendations to put this right.

The complaint

1. The complainant, who I refer to Mrs D, is making a complaint on behalf of her son () who has special educational needs (SEN). The Council maintains an Education and Health Care Plan (EHCP) for Mr P which outlines the educational support it must provide. Mrs D alleges the following:
1. The Council has delayed in providing sensory training for school staff by a trained occupational therapist. She says this was to support the needs of Mr P and formed part of his EHCP provision.
2. She had to repeatedly contact the Council about the problem which she says failed to respond to her in a timely manner.
2. In summary, Mrs D says Mr P was not receiving the necessary support and educational provision he was entitled to. She says this impacting on his well-being and educational development. She also feels ignored by the Council when seeking to address these issues. As a desired outcome, Mrs D wants the Council to be held accountable for the alleged failings.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
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 have read Mrs D’s complaints to the Council and Ombudsman. I have produced this report following examining relevant files and documents and interviews with the complainant and relevant employees of the Council. I have also considered applicable legislation, guidance and policy. I provided the complainant and Council with a confidential draft of my decision and invited their comments. I considered all comments received made before I made a final decision.

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My findings

Background and legislative framework

7. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs.
8. Under Section 42 of the Children and Families Act 2014, the Council has a duty to secure the named special educational provision in an EHCP for the child. The Courts have said this duty to arrange provision is owed personally to the Mr K and is non-delegable. This means if the Council asks another organisation to make the provision and that organisation fails to do so, it remains responsible.

Chronology of events

9. In March 2022, the Council issued an amended final EHCP (v.2) for Mr P. This made provision for: “School staff should be trained on sensory processing difficulties and in how to support Mr P’s sensory needs.”
10. Over the following months, Mrs D made repeated contact with the Council about the delay in delivering the sensory training.
11. In December 2022, the Council issued an amended final EHCP (v.3). This also made provision for sensory training, though with the requirement that this be delivered to school staff within the first term of the academic year.
12. In January 2023, Mrs D made a Stage One complaint to the Council. The Council responded that it had been proactively working to arrange the training, though this had been difficult due to capacity problems with the school and training provider. The Council accepted it would have been better had the training been arranged before the 2022/23 academic year.
13. Dissatisfied with the Council’s response, Mrs D asked for her complaint to be considered at Stage Two. The Council responded declining to do so as it felt it had nothing further to add than outlined in its Stage One response.
14. In March 2023, the Council delivered the sensory training.

My assessment

Delay in staff sensory training

15. The Council issued an amended final EHCP (v.2) in March 2022 which made provision for Mr P to receive support through trained staff in sensory issues. The Council acknowledge that it would have been better to arrange the sensory training for all staff before the 2022/23 academic year. It says this was due to capacity issues with training provider and school. The training was not provided until March 2023. This was despite an amended ECHP (v.3) being issued in December 2023 identifying the same provision. It added that the provision was to be delivered within the first term of the academic year. There has therefore been a five-month delay by the Council in providing the identified provision Mr P is entitled to receive. I recognise the difficulty described by the Council, but it is ultimately responsible for ensuring the provision is provided in good time and so I find fault. I consider this has some impact on Mr P’s sensory needs being met and that he has therefore been caused an injustice.

Complaint handling

16. The EHCP provision should have been in place to support Mr P at the beginning of the academic year. It therefore follows that Mrs D should not have to repeatedly contact the Council about this matter. I also note the Council declined to investigate Mrs D’s complaint at Stage Two of its complaints process. This was regrettable as had the Council done so this may have led to a proactive response to remedy the problem it had identified and avoid the matter being brought to us. While the Council may have been working to arrange the provision, the evidence shows a lack of communication with Mrs D to keep her informed and address her legitimate concerns. I therefore find fault and consider this has resulted in Mrs D being caused a degree of uncertainty and anxiety.

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Agreed action

17. To remedy the fault and injustice identified in this statement, the Council will perform the following actions within one month of this final decision:
1. Provide Mrs D and Mr P with a written apology which addresses each area of fault and injustice identified in this statement.
2. Pay Mr P £250 to remedy the impact on him and his education as a result of failing to provide the EHCP provision in a timely manner.
3. Pay Mrs D £100 to serve as an acknowledgment of the avoidable uncertainty and anxiety caused to her as a result of the fault identified.
18. The Council will provide evidence it has complied with the above actions.

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Final decision

The complaint is uphold as the Council delayed in providing Mr P’s needed EHCP provision. Also, the Council’s communication with Mrs D was not satisfactory as it failed to keep her updated and address her concerns. These failings caused an injustice and the Council has agreed to my recommendations to remedy this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman