Summary: Miss B complained that the Council failed to ensure that all the provision in her son C’s Education, Health and Care plan was in place promptly and in accordance with the plan. This caused her and her son distress and frustration. We found the Council delayed in meeting all the provision: including ensuring a personal laptop was provided and that motor skills and other support sessions took place. The Council has agreed to pay Miss B £300 for the benefit of C’s education and £200 for her own injustice.

The complaint

1. Miss B complained that East Sussex County Council (the Council) failed to provide her son, C, with provision as set out in his Education, Health and Care (EHC) plan. Miss B said this has caused him to miss his education, causing him distress, leaving him struggling and unhappy at school. She also says this has caused her distress, frustration, and put her to the inconvenience of complaining.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

What I have and have not investigated

4. I have investigated the events between September 2022 and the end of March 2023.

Back to top

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. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Special educational needs

6. 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 tribunal can do this.

7. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
8. 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)
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.

What happened

10. Miss B’s son C has some health conditions which impact on his ability to attend and engage in school. He has an EHC plan finalised in August 2022 which provided extra support in lessons, during transitions between lessons and break times, access to a personal laptop, mentoring sessions, social skills provision, daily sensory circuits and a fine motor skills development programme. This programme would be provided by an Occupational Therapist (OT) and completed three times a week for 20 mins on a 1:1 basis with teaching and support staff.
11. The plan also said that C should continue to practice his handwriting in20 minute session three times a week in a small group of students for eight sessions.
12. In early November 2022 Miss B complained to the School and the Council that the provision was not in place. The School responded to the Council saying:
• The social skills provision would start in November 2022;
• C had been allocated a teaching assistant in 20 out of 25 lessons;
• C had a 10 minute check-in every morning with an experienced teaching assistant;
• A specialist maths teaching assistant was working with him in small groups in maths lessons;
• C had access to 30 shared laptops in the SEND area and he had been shown how to access a laptop when he needed one;
• The touch typing had been delayed due to a software issue but would be starting now;
• The sensory circuits were starting imminently; and
• It was waiting for input from external professionals for the fine motor skills programme.
13. The School also responded to Miss B’s complaint on 24 November 2022 with the same information. It accepted its communication with Miss B could have been better.
14. Miss B responded to the School again saying:
• The school had not provided an explanation for the delay in implementing the social skills sessions or the maths lesson support;
• The morning check-in sessions did not start until the end of October 2022 and C no longer needed them;
• C was not aware he had a teaching assistant in 20 out of 25 lessons or that mentoring sessions were now taking place; and
• C did not have a personal laptop.
15. She wanted an acknowledgement that not all the provision was in place, an apology and suggestions for catch-up provision.
16. The Council responded to Miss B on 29 November 2022. It said it was waiting for explanations for the delays from the School, the School had provided a timetable showing how the support was embedded in C’s school day (this included two sessions per week of fine motor skills) and the Council would liaise with the School to ensure a laptop was provided. The School said the motor skills programme had been delayed due to a delay in the OT providing the programme due to illness. The Council partly upheld the complaint but did not offer an apology or a remedy.
17. Miss B met with the School on 7 December 2022. After this she agreed to drop her stage two complaint and no longer wanted catch-up provision as she was satisfied the matter was resolved. She agreed to the motor skills sessions being in small groups as opposed to the 1:1 basis specified in the EHC plan.
18. On 24 February 2023 Miss B complained again to the Council that C had no personal laptop and the fine motor skills programme was not in place.
19. Miss B also complained to the School on 19 March 2023 about the same issues. She said the laptop had only been provided on 23 February 2023 and the support promised in December had not materialised.
20. Miss B provided emails showing that on 6 February 2023 the motor skills tutor said she had scheduled C for two, hourly sessions per week with a small group of students. But when she had tried to collect C from lessons he did not want to leave as he was enjoying the lesson. She said when he had attended sessions, he was reluctant to partake and was ahead of the other students.
21. Miss B replied questioning the tutor’s version of events because C had told her he was never collected, and the sessions were not showing on his timetable.
22. The tutor replied on 7 February 2023 saying she had spoken to C and rearranged his timetable to identify lessons he would be happy to miss. She said he remembered that in their previous sessions he had said he was taken out of lessons he enjoyed. She also said after half term she would just involve C for the last part of the lesson so he would hopefully be able to focus more easily for a shorter period and he was ahead of the other students in the group in terms of ability.
23. On 27 February 2023 the tutor said that C received no sessions in the previous half-term because C did not wish to leave his lessons. She had changed the sessions to roughly 15 minutes on a 1:1 basis five times a fortnight. She felt catch up sessions were unnecessary. Miss B again disputed that C had refused to attend; she said he was never collected.
24. The Council responded at stage one of its complaints procedure on 21 March 2023. It confirmed C now had a personal laptop to use and previously had access to a bank of 30 shared laptops. It partially upheld the complaint. In respect of the motor skills sessions, it upheld the complaint that they had not been provided and said the timetable had now been rearranged to offer them on a 1:1 basis.
25. Miss B escalated her complaint. She disputed that a laptop had ever been available for C, the information given by the School about the motor skills sessions was inconsistent, there was no evidence that C had received any sessions during this academic year and the Council had not responded to her request for catch-up sessions.
26. The Council responded on 13 April 2023. It repeated its previous response. In terms of the catch-up sessions, it said C did not want to miss lessons to attend motor skills catch-up sessions and the tutor felt he was progressing so well that he did not need any.
27. Miss B had complained to us in March 2023. We decided to investigate the complaint in April 2023.
28. In response to our enquiries the Council said the following:

Motor skills

• This was planned to be a block of eight weeks of support . The first assessment session took place in November 2022 and the rest of the sessions were provided between February and May 2023.

Laptop access

• C initially had access to a bank of 30 shared laptops which he had been shown how to access and from December 2022 he had a personal laptop allocated to him.

Social skills

• This was provided in Term 2.

Daily check-ins and breaks

• These were established at the start of the academic year and an additional member of staff had provided weekly check-ins. These stopped after 30 November 2022 as Miss B said C no longer wanted them. Miss B had acknowledged C had a time-out card and was able to access the wellbeing room at the School .

Daily sensory circuits

• These were not started straight away to allow C time to settle into secondary school. They began in November 2022.
5. In June 2023 Miss B provided a report from an independent OT following an assessment in May 2023. This report included the views of the motor skills tutor at school and confirmed she saw C three times a week or 15 minutes. The OT recommended an OT programme of 15 minutes three times per week and recommended that C should use his laptop in all lessons.
6. She has also provided a reassessment by an NHS OT in August 2023 which indicates he still has problems with fine motor skills.

Analysis

31. The Council has a duty to ensure the provision in C’s EHC plan was put in place. It acted promptly in November 2022 when Miss B complained that not all provision was in place and liaised with the School to establish what had happened. It acknowledged that there had been delays but considered the situation was resolved in December 2022.
32. When Miss B complained again in February 2023, it liaised with the School and responded within a reasonable period of time. It acknowledged that the laptop had not been provided until later in February 2023 and that the motor skills provision had been delayed and then not provided in accordance with the EHC plan. It partially upheld the complaint but offered no remedy, partly because the motor skills tutor did not consider that any catch-up sessions were necessary.
33. I have concluded that C was without a personal laptop from September 2022 until February 2023. This was mitigated to some degree by the access to a shared bank of laptops in the SEND area during this period. But I accept this was not the same as having his own laptop at all times. This was fault which disadvantaged C at school and caused Miss B frustration and inconvenience in having to chase up the School and the Council.
34. I have also concluded the motor skills sessions were delayed for at least a term and there was confusion and a lack of communication over the sessions in the first half of the spring term. There is conflicting evidence from Miss B and the tutor over how many sessions took place up to 6 February 2023 and how many C attended. I am unable to conclude which version of events is correct. But I have concluded that by 27 February 2023 he was receiving five sessions a fortnight. This provision is almost in accordance with the EHC plan.
35. By the time the independent OT wrote her report in May 2023 the tutor was providing session three times a week, which was in accordance with the EHC plan.
36. I have also noted the Council’s view that the motor skills programme was planned to be in a block of eight weeks support. This is incorrect: the sessions were to be three times weekly on a one to one basis.
37. I have only investigated up to the end of March 2023. If Miss B considers the correct sessions were not provided beyond that date she can complain again to the Council about the subsequent period. Miss B has been caused distress and inconvenience in resolving the matter and there remains uncertainty over whether C has been disadvantaged.
38. There were short delays in providing the daily check-ins, sensory circuits, the social skills sessions and the specialist maths support. Miss B considers these delays had an adverse impact on C settling into school but I note she was satisfied with the action taken by December 2022.

Back to top

Agreed action

39. In recognition of the injustice cause to Miss B and C by the delay in providing a laptop and the motor skills programme, I recommended the Council within one month of the date of my final decision:
• pays Miss C £300 for the benefit of C’s education and £200 for her own distress and inconvenience.
40. The Council has agreed to my recommendations and has provided us with evidence it has complied with the above actions.

Back to top

Final decision

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

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman