Summary: Ms B complained that the Council failed to ensure that the special educational provision in her daughter, C’s Education, Health and Care Plan was put in place for over a year. We found fault in the actions of the Council. The Council has agreed to pay £1350 for the benefit of C’s education and £400 to Ms B for her distress and uncertainty.

The complaint

1. Ms B complained that Worcestershire County Council (the Council) in respect of her daughter, C’s Education, Health and Care Plan (EHCP), failed to ensure since the autumn of 2021 that the provision in Section F is implemented. It has also failed to ensure a proper Annual Review was held on time with the appropriate reports. C was without the necessary support at school for over a year which caused her significant distress and affected her access to education. Ms B has also been caused distress, labelled a ‘difficult parent’ and put to significant time and trouble in chasing up the school and the Council.

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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 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.
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)

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How I considered this complaint

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Special educational needs

7. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
8. The council has a duty to secure the specified special educational provision in an EHCP (Section 42 Children and Families Act). 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)
9. The Ombudsman does 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. The Ombudsman does consider 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.

Service failure

10. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

11. Ms B’s daughter, C, has some health conditions which affect her ability to attend school on a full-time basis.
12. On 21 October 2021 the Council issued a final EHCP following a needs assessment and appeal. Section F said that the Council would provide tuition at home in the mornings and C would attend school in the afternoons for as much as she could manage. It also said C would have direct specialist support from a trained adult to help C settle into a daily routine once she returned to school. She needed support to help her express her needs and communicate with adults. This would need to be a trusted, trained adult who could liaise with C and Ms B to learn how best to support C.
13. The plan also specified lots of aids and equipment to assist C at school, including a laptop, an adjustable desk, chair and backrest. The Council agreed to name C’s current school (the School) for the remainder of the school year and then to look for mainstream provision from September 2022. The Council agreed to fund a teaching assistant (TA) to provide the one to one support and 150 hours of home tuition.
14. On 10 January 2022 the School told the Council that it had not managed to employ a TA and asked for more funding. The Council replied on 11 February 2022 saying that it did not think more funding was necessary and made some suggestions about modifying the job description. It suggested the School could recruit from an agency while it searched for a permanent TA. It also asked the School to provide details of the aspects of the provision which it was struggling to provide.
15. In the meantime, on 24 January 2022, Ms B made a formal complaint against the Council for not providing the support detailed in Section F of C’s EHCP. The Council responded on 24 February 2022. It acknowledged that the School had not been able to recruit a TA and apologised for the lack of provision. It agreed to contact the School and ask for a response in writing, to hold an EHCP implementation planning meeting and a review in the summer term. The Annual Review of the EHCP was due in October 2022.
16. The Council held a meeting as agreed with the School and Ms B to go through the Section F provision. The School said it had now recruited a TA but requested 20 hours a week funding from the Council rather than 15. It said C was in school for the last two lessons of each day between 1.40 pm and 3.15 pm. The Council agreed to hold a follow-up meeting in four weeks to review progress.
17. The Council replied to the School several days later, declining the request for 20 hours TA funding. It considered that 15 hours was sufficient given that C was only in school for just under 8 hours a week. The School confirmed that it had rearranged the TA staffing to accommodate support for C and a new class teacher was starting shortly. It said it needed to order a laptop and desk, but the chair had been ordered.
18. The Council approved funding for the TA support, the laptop, adjustable desk and backrest and agreed to fund some home tuition in history from September 2022.
19. On 13 May 2022 the Council met with Ms B online to discuss the action taken since the implementation planning meeting in March. Ms B said a TA had been appointed but they were not trained and were often not in class with C. On one occasion they went on a school trip and another TA stood in but knew nothing about C and her needs. Ms B wanted a meeting with the School SENCO, the new TA, the current and new class teacher. She also had been asking for some time for a brief description of what C had missed when she was not present in class, but the School never provided this. The Council felt this could be provided as part of the TA funded hours. She said C still did not have a laptop or desk but the chair had arrived and was helpful.
20. The School said it was finding it difficult to provide the right support for C and there was a conflict between what Ms B wanted and what C wanted. The Council replied saying it had funded the requested TA:

“…to support [C] accessing the learning in school and to monitor and support with her health needs.  This is an agreement between ourselves and [the School] based on C’s time in school.  The [Council] would therefore expect that this is now in place.  This was agreed as you felt she was the most experienced member of staff who you had within your team to carry out the specific role.  Whilst I appreciate that on occasions someone else may have to support due to absence, consistency for the short time [C] is attending is crucial.  It is also important if as agreed school try to communicate to [C] what she has missed in advance of her entering the lesson so she is able to fully take part and contribute.”

21. In June 2022 Ms B said C was struggling to attend school and wanted to increase the tutoring hours at home. She also made a formal complaint to the School. The School told the Council it wanted to arrange an emergency review as it could not meet C’s complex medical needs or parental expectations of provision.
22. At the end of June 2022 the Council replied to Ms B saying that it was looking into widening curriculum access for C and it was aware that the School was arranging a meeting to discuss the outcome of her complaint, which suggested the School could not meet C’s needs. It suggested Ms B should consider C’s views regarding her education and what Ms B was prepared to accept or not accept in terms of the reasonable adjustments/provision.
23. Ms B said that C still wanted to attend the School and Ms B wanted her to stay at the School until she could switch to a full Education Other Than At School (EOTAS) package. She said C would not cope with a mainstream school and the specialist school she had visited could not provide C with a peer group so would not be suitable. She said the meeting with the School had not been successful and the TA had not even attended. She said the TA had not built a relationship with C, was often not with C in the classroom and had not met Ms B. C still did not have the laptop and adjustable desk. The Council urged Ms B to attend the emergency/interim review to try and find a solution, so the placement did not break down.
24. Ms B made a second formal complaint to the Council about the failure to hold a follow-up meeting four weeks after the implementation planning meeting and about the fact the School was still not providing the content of section F of the EHCP but wanted to hold an emergency review as it said it could no longer meet C’s needs. It appears this emergency review did not take place as it was too close to the end of term to arrange.
25. The Council responded at the end of July 2022. It accepted that it had not held a review meeting within four weeks, but it had provided regular updates to Ms B , arranged extra tutoring and met with Ms B on 13 May 2022. The Council did not uphold the second point. It said it had worked with the School to support them in implementing C’s EHCP and provided home tuition to complement her attendance at school. It had not received confirmation from the School that the C’s placement had ceased or that she was not able to attend in September. It was satisfied she was on the School’s roll and would check C was still attending and able to attend in September. It would also attend the Annual Review meeting due in October 2022.
26. Ms B escalated her complaint on 23 August 2022. She said the equipment and one to one support was still not in place. She also said that the School held an emergency review during the holidays to which she was not invited and said it could not meet C’s needs. The Council responded on 30 September 2022 that C still had a place at the School, the School was arranging the Annual Review and it was not appropriate to carry out a stage two investigation as actions were already in hand.
27. In September 2022 the School confirmed that the equipment had been purchased. The Annual Review was held on 18 October 2022. Ms B said that the previous year had been atrocious and staff had not been trained properly to support C. Home tutoring was working well but attending school was exhausting for C. Ms B also said the school had not gathered any reports from professionals.
28. Ms B said:

“Even if a school had the best facilities in the world, [C] would not be able to attend full-time due to her conditions.”

29. The School indicated that its relationship with Ms B had broken down. The Council referred the case to its funding panel to approve an EOTAS package. This was approved by the Panel in December 2022. The Council issued two amended draft EHCPs A final in April 2023 and an amended final in June 2023 with a personal budget for Ms B to manage an EOTAS package of home tuition and other activities.
30. Ms B says C left the School in February 2023.

Analysis

31. The Council had a statutory duty to ensure the provision in Section F of C’s EHCP was put in place. It was aware in early January 2022 that direct one to one support while C was in school was not being provided. It took steps to assist the School, offering advice and arranging an implementation planning meeting in March 2022. However, the School did not employ a TA until March and even after this, it does not appear to have provided consistent one to one support to C in accordance with the EHCP. Neither did it provide a laptop, table or backrest until September 2022.
32. I can see the Council was in regular contact with Ms B and advised the School correctly on several occasions that it needed to put the support in place. I cannot find fault with efforts it made between March and July 2022 to try and ensure that C had the provision she needed. But in spite of these efforts the support was not provided. This was service failure.
33. This situation continued until she left the School in February 2023 approximately a year after the Council was first aware of the problems. I realise the Council had approved an EOTAS package by this point but the final EHCP confirming this was not issued until April 2023.
34. This failure meant C missed out on the essential support she needed to attend school for a short period each day. She enjoyed this time particularly on a social level and the lack of support meant she could not maximise the experience and was left feeling isolated and exhausted on many occasions. The home tuition appears to have worked well throughout this period, and meant C was not without education entirely.
35. It also caused significant distress and frustration to Ms B and led to a breakdown in trust between her and the School which further impeded the successful provision of support to C. This created further uncertainty as to whether the situation for C could have been significantly improved with the proper support in place.
36. I do not consider the Annual Review was delayed. The situation was confusing as the School wanted to hold an interim review but this did not take place. The Annual Review was held within 12 months of the final EHCP being issued in 2021. Ms B said no reports had been gathered or distributed so the review was po
37. Given the poor relationship between Ms B and the School in September 2022, I consider it would have been beneficial for the Council to have carried out a stage two investigation into her complaint as there is no consistent evidence that the provision in section F was in place and there were no obvious actions taking place to improve the situation.

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Agreed action

38. To recognise the injustice caused to Ms B and C, I recommended the Council within one month of the date of my final decision:
• pays Ms B, for the benefit of C’s education, £1350 based on approximately three terms of partial educational provision for C, and
• pays Ms B £400 for the distress, frustration and uncertainty she experienced.
39. The Council has agreed to the recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

40. I consider this is a proportionate way of putting right the injustice caused to Ms B and C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman