Summary: There were delays in arranging provision and support specified in Ms X’s child’s Education, Health and Care Plan. The Council apologised to Ms X and made service improvements. The Council has agreed to our recommendations on remedying the personal injustice to Ms X and her child.

The complaint

1. The complainant, who I refer to as Ms X, complained the Council failed to ensure her child, C, was receiving the support specified in her Education, Health and Care (EHC) Plan.

Back to top

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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. 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.
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)

Back to top

How I considered this complaint

6. I considered Ms X’s complaint and the information she provided.
7. I considered the information I received from the Council in Ms X’s previous complaint she brought to the Ombudsman.
8. Ms X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

Back to top

What I found

Law and Guidance

9. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
11. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (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).
12. The SEND code of practice states provision must be detailed, specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a personal budget.
13. Provision must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes.

What happened

14. C is a child who has a EHC Plan maintained by the Council. C’s EHC Plan was finalised and issued in January 2022.
15. Ms X says the Council named the mainstream school (‘School 1’) C was already attending in their EHC Plan when the school had said it cannot provide them with the support in their plan.
16. Ms X complained to the Council on 15 March 2022 and lodged her appeal with the SEND Tribunal on 24 March 2022.
17. Ms X appealed to the SEND Tribunal against the Council’s refusal to amend the following in C’s EHC Plan:
• Section B – The child’s special educational needs;
• Section F – The provision specified in the Plan; and
• Section I – The school named in the Plan
18. Ms X has exhausted the Council’s Corporate Complaint process. The Council did not investigate Ms X’s complaint about School 1 being named in C’s EHC Plan because the matter was being considered by the SEND Tribunal. However, the Council did uphold the remainder of Ms X’s complaint which can be summarised as the following:
• The provision specified in section F of C’s EHC Plan is not being delivered by School 1;
• Speech and Language Therapy (SaLT) and Occupational Therapy (OT) has not been commissioned as set out in C’s EHC Plan;
• Ms X and professionals working with C have, on several occasions, been unable to contact the Council’s Statutory Assessment Team (SAT);
• The Council did not provide a feedback form with its Stage 1 complaints response; and
• The Council incorrectly advised Ms X to contact the Ombudsman without exhausting its three stage complaints process.
19. The Council apologised to Ms X for the failings it identified.
20. After issuing its Stage 3 response to Ms X’s complaint, the Council advised her to contact the Ombudsman if she wished to pursue her complaints further. Ms X brought her complaint to the Ombudsman. We discontinued our investigation of Ms X’s initial complaint because we were unable to assess the injustice of the identified faults until the SEND Tribunal had issued its decision.
21. One week into the Autumn term, Ms X removed C from School 1. C’s last day on roll at School 1 was 9 September 2022. Ms X arranged for C to attend School 2, an independent school.
22. The SEND Tribunal issued its decision on Ms X’s appeal in February 2023. It ordered that School 1 was an appropriate education placement for C. I understand C continues to attend School 2.

Back to top

Analysis

23. The Council was under a non-delegable duty to ensure the provision in Y’s EHC Plan was delivered. After councils issue an EHC Plan, we expect them to ensure all the provision in the plan is in place. If a council later becomes aware provision is missing, it should act to secure it without delay. However, the Council is relieved of its duty under the Act if it is satisfied the child’s parent has secured suitable provision, for example, independent or home schooling (section 9.132 of the Act).
24. In this case, School 1 was named in C’s EHC Plan as the placement to deliver the educational provision to meet their needs. Ms X removed C from School 1 on 9 September 2022 and appealed the suitability of the school to the SEND Tribunal. If a parent chooses not to send their child to the school named in the EHC Plan then the Council does not have to provide an alternative. Therefore, I do not find fault with the Council from 9 September 2022.

The period from 28 January 2022 to 8 September 2022

25. C’s EHC Plan was finalised and issued to Ms X on 28 January 2022. From the information I have seen it appears the Council did not notify Ms X of her right to appeal to the SEND Tribunal when it issued the final Plan. This is fault. On issuing the final EHC Plan the Council should have notified Ms X of her right to appeal to the SEND Tribunal and the time limit for doing so, of the requirement to consider mediation should she wish to appeal, and the availability of information, advice and support and disagreement resolution services (para. 9.126 of the Statutory Guidance). On 30 January 2022 Ms X contacted the Council to request information on how to appeal the final plan. Ms X was inconvenienced by having to request this information and also frustrated that it had not been provided with the final plan.
26. C’s EHC Plan from January 2022 was lengthy and written in such a way that the same provision was specified several times in slightly different ways but meant the same thing. The Council acknowledges C’s EHC Plan was not well written and lacked specificity. Statutory guidance states provision in EHC Plans must be detailed, specific, it should normally be quantified, and it should be clear how the provision will support achievement of the outcomes. Therefore, I consider the Council is at fault for the way C’s EHC Plan from January 2022 was written because it did not follow the statutory guidance. This resulted in confusion as to what provision C required to meet their needs.
27. In May 2022, a SEP worked with School 1 to work individually through each outcome and provision detailed in C’s EHC Plan. The SEP was of the view that School 1 was implementing all the provision they should be. However, the evidence shows the contrary because the Council had not commissioned SALT provision and OT provision therefore C was not in receipt of all the provision they should be.
28. C did not begin to receive the SALT provision in their EHC Plan dated January 2022 until May 2022. This delay is fault. However, the Council arranged extra sessions for the summer so although there was a delay in provision being delivered, C has not missed out on SALT provision. There was also a delay in the Council arranging the OT provision for C. This was secured in July 2022 and sessions were arranged over the summer break to ensure C received the provision in their EHC Plan.
29. The way C’s EHC Plan was written and the confusion it caused does not appear to be the only reason for the Council’s delay in arranging provision. The Stage 2 investigation shows the detailed information around the commissioning of SALT and OT was not shared with School 1 from the outset. School 1 had approached the Council in January 2022 to seek advice and support to enable them to deliver the provision in C’s EHC Plan. There was also a failure by the Council to review and provide the necessary funding to School 1 to enable it to deliver the provision. The Council acknowledges it should have responded more supportively to School 1 in January 2022. The Council’s Stage 2 investigation also showed that there was misinformation and lack of communication between officers and poor handover of casework that caused delays in the provision of SALT and OT for C.
30. I acknowledge the Council began making arrangements for the SALT and OT provision once it became aware the provision was missing but I find it concerning that it only became aware due to the investigation of Ms X’s Stage 2 complaint. We consider that councils should have a mechanism in place for checking that once an EHC Plan is issued for the first time or after a significant amendment, the required provision is put in place. It should not have fallen to Ms X’s Stage 2 complaint to alert the Council that provision specified in C’s EHC Plan had not been secured. I consider this as fault.
31. I have also found fault with the Council’s Stage 1 investigation of Ms X’s complaint for failing to identify it had not commissioned SALT provision and OT provision as stipulated in C’s EHC Plan. The Council state they only became aware of this while investigating Ms X’s complaint at Stage 2. This caused avoidable frustration to Ms X as she felt her complaint had not been properly considered at Stage 1, she will have lost trust in the Council’s investigation of her complaints and felt as though her concerns were being dismissed. Additionally, the Council acknowledges the Stage 1 response did not include the relevant feedback forms that it should have. Ms X had to chase the Council for these and was frustrated that she had to do so.
32. I welcome the Council’s efforts in arranging OT and SALT for C during Summer 2022 to ensure she did not miss any provision. I also welcome the learning and action taken as a result of Ms X’s complaints with regards to communication and the EHCP improvement plan to address the issues around service delivery. The Council has apologised to Ms X for the faults it identified but I do not consider this sufficiently remedies the personal injustice to Ms X and to C.

Back to top

Agreed action

33. To remedy the injustice caused by the identified faults, the Council has agreed, that within four weeks of this final decision, it will:
• Apologise in writing for the failings identified above.
• Pay Ms X £200 for the uncertainty about what provision C was entitled to and when they would receive it.
• Pay Ms X £400 on C’s behalf for the uncertainty about what provision they were entitled to and when they would receive it. I recommend this payment to be used for the benefit of C’s education and wellbeing.
• Pay Ms X £150 to recognise her frustration with the handling of her Stage 1 complaint and the avoidable inconvenience she was put to in chasing the Council.
34. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

35. The Council is at fault and it has accepted our recommendations to remedy the injustice caused by the identified faults. I have now completed my investigation and closed this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman