Summary: Ms X complained the Council failed to provide the provision set out in her daughter’s Education, Health and Care plan. Ms X also complained the Council failed to respond to her concerns and delayed arranging a review meeting. Ms X said the Council’s actions caused avoidable distress and anxiety to herself and her daughter. We found fault by the Council and the Council has agreed to provide an apology and a financial remedy to address the injustice identified.

The complaint

1. Ms X complained the Council failed to provide the provision set out in her daughter’s Education, Health and Care plan. Ms X also complained the Council failed to respond to her concerns regarding the lack of provision and delayed arranging a review meeting after she requested one. Ms X says the Council’s actions caused avoidable distress and anxiety to herself and her daughter. She would like the Council to provide the agreed provision to her daughter and to ensure it listens and responds appropriately to family’s concerns.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

5. I discussed the complaint with Ms X and considered the information she provided.
6. I made enquiries to the Council and considered the information it provided.
7. Ms X and the Council had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Special educational needs

8. 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.
9. 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.
10. 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)
11. 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)
12. Statutory guidance published in January 2015 (Special educational needs and disability code of practice: 0 to 25 years) sets out the steps councils must take regarding EHC plan re-assessments. It says local authorities must carry out a re-assessment of an EHC plan if a request is made by the child’s parent, although it may refuse a re-assessment if less than six months have passed since the last EHC needs assessment was conducted. The guidance says councils must notify parents of its decision as to whether or not it will carry out a re-assessment within 15 calendar days of receiving the request to re-assess. (SEND code of practice: 0 to 25 years, 9.187, 9.188 and 9.190)

Background

13. Ms X’s daughter, Y, had an EHC plan which set out the provision to be made to meet her needs. Part of the provision specified several interventions, including support with handwriting and literacy skills, number skills and weekly sessions to build emotional understanding and vocabulary.

What happened

14. This chronology includes key events in this case and does not cover everything that happened.
15. Ms X contacted Y’s school, School A, in September 2022, shortly after the start of the new school term. Ms X said Y was not receiving the interventions as set out in her EHC plan and she asked School A when this matter would be resolved.
16. School A replied and said it was doing its best to cover in-class support needs and that it was trying to recruit additional staff. It said it hoped to implement the interventions by half-term.
17. Ms X informed the Council of School A’s response. She asked it to investigate and to ensure there was no further delay in Y accessing the required support. The Council contacted the school to ask about the support being provided to Y.
18. In October 2022, Ms X told School A and the Council that Y was still not receiving the interventions specified by the EHC plan. Ms X asked School A and the Council to arrange a meeting to discuss the provision for Y. She said if a meeting did not take place within the first two weeks of November 2022, she would request an emergency review of the EHC plan as she said School A was failing to meet Y’s needs.
19. School A responded and said it felt it would be better to conduct a meeting a few weeks into the new term, once Y had had time to access the interventions.
20. Ms X contacted the Council again on 3 November 2022 to ask for an emergency review of the EHC plan. She said she had received a new report regarding Y which could change the required provision; Ms X also said Y had still not received the interventions as set out in her existing EHC plan. Ms X contacted the Council again on 8 November 2022 regarding her request for an emergency review.
21. The Council replied on 10 November 2022. It said it had been in contact with School A who had suggested a meeting at the end of the school term.

Ms X’s complaint

22. At about this time, Ms X made a formal complaint to the Council. She said Y had received no interventions since September 2022 and said School A had put off arranging a meeting until interventions had begun. Ms X complained School A had told her interventions were due to start on 7 November 2022, but this had not happened.
23. Ms X contacted the Council again on 22 November 2022. She said School A had not arranged a meeting and interventions for Y had still not begun. The Council replied on the same day and told Ms X it would look into the matter and respond by the end of the week.
24. School A contacted Ms X on 25 November 2022 and said interventions were taking place but that it was balancing between providing interventions suggested in the plan with observing Y and her performance in class. School A said a consultant had observed Y and was satisfied teaching techniques provided in the class provision meant Y was making progress as set out in the EHC plan.
25. The Council provided its stage one complaint response on 8 December 2022. It said School A had struggled to recruit in Autumn 2022, but it was satisfied with Y’s progress. The Council said it had liaised with School A and had no reason to doubt it was implementing the provision identified in the EHC plan. The Council partially upheld Ms X’s complaint and apologised that the interventions were not in place in September 2022 despite School A’s best endeavours to provide them.

What happened next

26. Ms X attended a meeting with School A in December 2022 to discuss provision for Y. The Council says this was not an EHC plan review meeting but was an education planning meeting.
27. In January 2023, Ms X contacted the Council. She said the annual review of the EHC plan was due and asked if this could be arranged so that she could discuss the findings of a recent assessment regarding Y.
28. On 23 January 2023, Ms X escalated her complaint to stage two. She said the Council had failed to adequately investigate her concerns about the lack of provision and had failed to employ agency staff. Ms X also complained her request for a meeting was denied until interventions had begun. She said the Council had failed to listen to her concerns and had left Y to struggle at school.
29. Ms X contacted the Council on 30 January 2023 and again on 3 February 2023 regarding her request for a meeting to review the EHC plan.
30. On 27 February 2023, the Council provided its stage two complaint response. It said Y was receiving a weekly speech and language intervention, a handwriting intervention and support with her literacy skills. The Council acknowledged the implementation of support for Y was delayed; it upheld Ms X’s complaint and apologised for the delay.
31. The EHC plan review meeting took place on 28 February 2023.
32. Ms X remained dissatisfied with the Council’s complaint response and brought her complaint to us.

Analysis - Mrs X’s complaint that the Council failed to provide provision

33. Y’s EHC plan specified the provision required to support her. This included interventions to assist with handwriting, literacy and number skills, as well as weekly sessions to build emotional understanding.
34. The Council’s stage two complaint response acknowledged there was a delay in securing the provision for Y as set out in the EHC plan. As part of my enquiries, I asked the Council to provide an explanation regarding the provision made.
35. The Council says the specific provision named in the EHC plan relating to handwriting was implemented in November 2022, although not consistently due to staff absence. The Council says this intervention was increased to weekly from January 2023. The period of missed provision regarding this intervention is therefore September 2022 to January 2023.
36. The EHC plan specified a separate intervention to help Y build literacy skills; the EHC plan suggested a specific programme regarding this and stated this should be provided by a Teaching Assistant with support and guidance from School A’s SEN co-ordinator. The Council says this was not implemented and that School A instead placed Y into a small group taught by teachers with specific literacy training, with support from an adult with speech, language and phonics training.
37. I acknowledge the Council’s comments, however, the provision as explained by the Council regarding literacy support provided to Y is not the same as the provision specified in the EHC plan. In addition, the Council has acknowledged it did not implement the provision as specified by the EHC plan. However, the Council has explained the measures taken by School A regarding this which partially mitigates the lack of provision as specified by the EHC plan.
38. The EHC plan also stated a trusted member of staff should work with Y on a weekly basis to identify key strengths. Regarding this provision, the Council says sessions began in March 2023. The period of missed provision regarding this intervention is therefore September 2022 to March 2023.
39. The Council has acknowledged it did not secure all the specified provision for Y from September 2022, but says it provided alternative measures for some interventions. As stated in paragraph 10, the Council has a duty to secure the specified special educational provision in an EHC plan. The evidence demonstrates the Council did not do this; its failure to do so is service failure amounting to fault.

Ms X’s complaint the Council failed to respond to her concerns

40. The first record of Ms X reporting her concerns about a lack of provision to the Council is from October 2022. Ms X’s previous correspondence regarding this matter was with School A. I have reviewed Ms X’s correspondence to the Council and consider the Council did respond to Ms X’s concerns. I acknowledge Ms X may not be satisfied with the response times regarding some of her correspondence, however, I have seen no evidence of excessive delay regarding this matter. As a result, there is no fault by the Council regarding this aspect of the complaint.

Ms X’s complaint the Council delayed arranging an EHC plan review

41. Ms X emailed the Council and School A on 3 November 2022 to ask for an emergency review of the EHC plan. The evidence shows Ms X made further requests on 8 November 2022, 5 January 2023 and 30 January 2023.
42. The EHC plan review meeting took place on 28 February 2023. I have seen no evidence the Council contacted Ms X to provide its decision (about carrying out a re-assessment) within 15 calendar days of receiving her request. In addition, the time taken from the date of the first request for a re-assessment to the date of the re-assessment meeting demonstrates delay by the Council. This delay, and the lack of a response to Ms X within the statutory timeframe is fault.
43. Having identified fault, I must consider if this caused a significant injustice. Ms X says the impact of the Council’s actions has been extreme stress and anxiety, and the impact to Y’s education as a result of not receiving the required support as identified by the EHC plan.

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Agreed action

44. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Ms X and Y for the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings;
2. Provide a financial remedy of £3,000 for the benefit of Y in recognition of the missed and delayed provision. This figure is in line with our published guidance on remedies and takes into account the alternative measures taken by School A in providing provision for Y;
3. Provide a further financial remedy of £250 to Ms X in recognition of the distress caused by the delay in arranging the EHC plan review meeting;
4. Review the provision currently made to Y to ensure it is in line with the current Education, Health and Care plan, and
5. Remind staff of the requirement to adhere to the special educational needs and disability code of practice on receipt of a request for a review of an Education, Health and Care plan.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have found fault by the Council and the Council has agreed to take the above action to remedy the injustice identified. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman