Summary: Mr X complained the Council failed to fulfil the provisions in his daughters Education Health Care (EHC) Plan which was ordered by the Tribunal. The Council delayed in securing some provisions within the EHC plan. This is fault.

The complaint

1. Mr X complained the Council failed to fulfil the provisions in his daughters EHC Plan which the Tribunal ordered. The lack of provision has affected her ability to learn. Mr X would like the Council to implement the 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 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)

Back to top

How I considered this complaint

4. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Children and Families Act 2014, The Special Educational Needs and Disability Regulations 2014 and government guidance on time limits for complying with a Tribunal decision.
5. Mr X 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

Relevant legislation

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.
7. There is a right of appeal to the Special Education Needs and Disabilities (SEND) Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan.
8. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014).
9. 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)
10. 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.

What happened

11. I have summarised below the key events; this is not intended to be a detailed account.
12. Mr X’s daughter, D, attends mainstream primary school. The Council issued D with an EHC plan in April 2022.
13. Mr X appealed to the Tribunal as he considered the provisions in the EHC plan did not meet D’s needs.
14. The Tribunal heard the case and issued a decision in late February 2023.
15. The Tribunal directed the Council to amend D’s EHC plan. It said D needed the following provisions:
• a teaching assistant;
• a specific learning difficulties teacher;
• input from an Occupational Therapist; and
• a laptop
16. The Council issued an amended EHC plan for D at the end of March 2023.
17. Mr X complained to the Council at the end of April. He said the Council failed to carry out the requirements of the EHC plan.
18. The Council responded in the middle of April. Mr X was not satisfied with the response and asked for a review. The Council issued its final response at the beginning of June which explained what action it had taken. It said:
• The Council had provided funds to D’s school to provide the teaching assistant. It said it was happy to liaise with the school to ensure this was in place.
• It had found a specific learning difficulties teacher.
• The Council had approached the Occupational Therapist provider and was awaiting responses.
• It had ordered a laptop.
19. In the middle of June, Mr X complained to the Ombudsman. He said the Council had not made the provisions in the EHC plan. He said this was affecting D’s ability to learn and he wanted the Council to make the provisions immediately.
20. In my correspondence with Mr X in September, I asked if any of the provisions in the EHC plan were in place. He explained the following:
• The funding for the teaching assistant had not been received by the school by the middle of July. This was the date he last received an update.
• The school emailed Mr X in early September to say a specific learning difficulty teacher would meet D the following week but there was no confirmation when the sessions would start.
• An external occupational therapist emailed Mr X in early September to arrange a meeting with D the following week but there was no confirmation when the sessions would start.
• Mr X said D had not received the laptop. The Council had not provided any information about when she would receive this.
21. In my enquiries, I asked the Council if the above provisions in the amended EHC plan were now in place and to explain the reason for any delay. The Council responded in October and explained it made provisions within the following timescales:
• The Council provided funding to D’s school at the end of March for her teaching assistant.
• The specific learning difficulty teacher was in place by early June.
• A referral was made to the occupational therapist team at the end of March and the service this was in place from late June.
• The laptop was ordered in the middle of May.
22. In response to my enquiries about the reasons for any delay, the Council said it took several weeks to commission the specific learning difficulty teacher and occupational therapist as it had to use external providers. It could not provide these services in-house and conducted an extensive search to find suitable provision within the independent sector. The Council said it made every attempt to ensure the provisions were in place at the earliest possible opportunity.

Analysis

23. The Regulations state when the Tribunal orders the Council to amend an EHC plan, the Council must issue the amended plan within five weeks. The Council issued the amended plan within five weeks. The Council is not at fault.
24. The EHC plan does not give a timeframe for when the provisions should be in place for D. Generally, where the Council has clear knowledge of what provision is needed and a likely start date for that to happen, delay in arranging it is not acceptable. We usually expect straightforward provision to be in place within no more than four weeks and complex provision to be available within no more than half a term.

The teaching assistant

25. In response to Mr X’s complaint, and my enquiries, the Council said it provided funding for the teaching assistant to the school by the end of March. This is within the four-week timeframe. The Council is not at fault.
26. However, Mr X said this had not been received by the school by the middle of July. Whilst the Council provides funding to the school and asks it to organise provision for the teaching assistant, the Council remains responsible. It cannot delegate the responsibility. In its complaint response, the Council offered to liaise with the school to ensure this provision was in place, I expect it to have done so. The Council’s failure to ensure the teaching assistant was in place is fault.
27. The lack of a teaching assistant has had a significant impact on D’s ability to learn and she struggles to access the school curriculum.

The specific learning disabilities teacher and occupational therapist

28. In response to my enquiries, the Council explained the difficulties it had sourcing a specific learning disabilities teacher and occupational therapist. It could not provide this service internally and had to look externally and commission from the independent sector. The Council had recruited both specialists by June, within three months of the amended EHC plan.
29. Despite the provision being in place from June, Mr X said the specialists only arranged an initial meeting with D in September. The Council had completed its role when it appointed the specialists, this further delay is the specialists and is outside the Council’s control. While the Council is not completely to blame, the Council remains responsible as its role is non-delegable.
30. As this is a more complex provision, I would expect the Council to provide it within half a term. While it took slightly longer than half a term, I do not consider it to be excessive under the circumstances. The Council is not at fault.
31. Some of the delay from the specialists was during the summer holidays when D was not accessing education, this therefore limits any injustice. The provision is now in place and D has started working with the specialists.

The laptop

32. The Council’s stage one response in May said it was sourcing D a laptop and in its stage two response in June, it said it ordered it. In correspondence with me in September, Mr X said D had not yet received the laptop.
33. To provide a laptop is a straightforward matter. I would expect the Council to provide it within four weeks, it has been much longer. This is delay, this is fault.
34. D struggles to write quickly and legibly. The Council’s failure to provide D with a laptop means she is not able to record her work effectively.

Injustice

I have considered the impact the Council’s faults had on D.

The Council failure to deliver a laptop to D and ensure the school provided her with a teaching assistant has impacted on her education. It has also had a damaging effect on her well-being. This is her injustice.

Remedies

35. Within four weeks of my final decision, the Council should:
• Check the provisions ordered by the Tribunal and set out in the amended EHC plan as described above are in place and confirm this in writing.
• Apologise to Mr X on behalf of D for the delay in carrying out the provisions within the EHC plan.
• Pay Mr X for the benefit of D, £450 in recognition of the effect the delay in providing the provisions in the EHC plan had on her.

Back to top

Agreed action

36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

37. I have completed my investigation. The Council is at fault as it delayed in securing some provisions within the EHC plan.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman