Summary: The Council’s failure to deliver the remedy it agreed following Mrs X’s complaint that it had not secured all the provision in her child’s Education Health and Care plan was fault. The Council has agreed to apologise, make the agreed remedy, make payments to Mrs X and the child, and act to improve its services.

The complaint

1. Mrs X complained that the Council failed to deliver all the remedies it agreed following her complaint that it failed to secure all the provision in her child’s Education Health and Care plan. Mrs X’s child did not get all the support in the plan for four months. At a meeting in April 2023, the Council, Mrs X and the child’s college agreed that to remedy the injustice caused, the college would provide revision materials for the period. Mrs X says the college failed to do so, and so the injustice to her and her child remains unremedied.

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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. 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 considered the complaint and the information Mrs X and the Council provided, along with relevant law and guidance.
6. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
7. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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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What I found

Education Health and Care plans

9. 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. Section F sets out the provision needed to meet the child’s special education needs.
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 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 performing 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

12. Mrs X’s child, whom I will call B, has an Education Health and Care (EHC) plan. B started at college in September 2022.
13. In November, Mrs X complained to the Council. She said the college had not made all the provision in Section F of B’s EHC plan.
14. Before the Council responded to the complaint, Mrs X met with the Council and the college to review B’s EHC plan. As a result, the college asked the Council for extra funding for B’s support. The Council agreed this in December. This means from January 2023, B received all the support in the plan.
15. The Council’s stage one response to Mrs X’s complaint said the actions agreed at the review should ensure B had the right support in place going forward.
16. However, Mrs X was concerned that B had missed necessary support from September to December 2022. In January and February, she asked the college to provide B with revision notes for this period to put B back into the position they would have been were it not for the missing support.
17. In late February, the Council told Mrs X it would follow up with the college about the revision notes for B. Mrs X asked the Council in March for a detailed plan for how it would support B to catch up on the work from September to December before important exams in March. B did not pass the exams.
18. In early April, Mrs X met with the Council and the college. The Council’s record of the meeting says:
• Mrs X would tell the college what revision materials she had produced for B to work on at home
• The college agreed to ask a specific member of staff to start printing extra materials for B over the Easter break. Staff at college would then pick this up with B after the holiday.
• All agreed that B would need continuing revision support to be successful
19. In June, as B approached re-sits of the March exams, Mrs X wrote to the Council and the college. She said the revision notes had not been provided as agreed. She said the purpose of these was to make up for the missed provision and so college should not expect B to take the lead on producing these.
20. The college told Mrs X that it would not produce the revision material “independently of” B because this would prevent B from developing the skills to learn independently.
21. As a result, Mrs X complained to the Council. She said the action agreed at the meeting in April to resolve her complaint remained outstanding and asked the Council to issue a final response to her complaint.
22. The Council issued a response to Mrs X at the end of June. It said:
• B’s EHC plan did not include provision of revision material but “on the basis that you believe that the College failed [B] by not providing full support for Sept-Dec’22, revision notes for this period should be provided.”
• It had “done everything in its power to exert pressure on the College to provide the revision notes that you requested. The College advise that they are meeting the legal requirement to deliver the support as per [B’s] EHCP.”
23. Mrs X complained to the Ombudsman. She said the Council’s failure to deliver the agreed remedy means the injustice to B from the missed provision has not been remedied. She has had to spent significant time trying to produce revision materials for B herself in a format that is useful for B.

My findings

24. The Council accepted that from September to December 2022, B did not get all the support required by the EHC plan. This appears to have occurred because the college did not have enough funding from the Council to deliver the necessary support. This should have been identified before B started college in September. Instead, B had to wait until January to get this support. This was fault.
25. As a result, B did not have necessary support in lessons for four months. This is an injustice to B. The Council should have considered how to put this right for B when it responded to Mrs X’s complaint at stage one. Failure to do so was fault.
26. When there is injustice caused by fault, the Ombudsman’s Guidance on Remedies says wherever possible the remedy should put the person back into the position they would have been in had that fault not happened. In cases like this, that might mean making extra provision to make up for the support missed. Mrs X’s request for revision materials was a suitable remedy for the injustice caused to B. It would prevent B from being disadvantaged when revising for exams by the period of missed provision.
27. It appears from the records that the Council agreed this was a suitable remedy and asked the college to provide it. However, the Council remained responsible for ensuring it completed the agreed remedy.
28. When Mrs X told the Council the college had not provided the extra materials as agreed, the Council asked the college again. This was a sensible approach. However, when Mrs X complained again, the Council should have considered how else it could provide a remedy to B. For example, by providing extra tuition for B on the work covered from September to December or, in line with our guidance, considering a financial remedy. Failure to do so was fault.
29. As a result, the injustice to B from the missed provision remains unremedied. This made it avoidably more difficult for B to prepare for exams. This is an injustice to B. Mrs X has spent considerable time trying to address this by producing materials for B herself. This is an injustice to Mrs X.

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Agreed action

30. To remedy the injustice to Mrs X and B from the faults I have identified, the Council has agreed to:
• Apologise to Mrs X, in line with our guidance on Making an effective apology
• Pay Mrs X £250 in recognition of her avoidable distress and time and trouble
• Provide B with revision materials for the modules covered between September and December 2022, having agreed with Mrs X, B, and the college on the format or structure which will best support B’s learning.
• Pay B £500 in recognition of the impact on their learning of the delay remedying the missed provision.
31. The Council should take this action within four weeks of my final decision.
32. The Council should also take the following action to improve its services:
• Provide training or guidance to staff responsible for dealing with complaints to ensure that where fault has caused injustice, the Council considers what would be a suitable remedy, in line with the Ombudsman’s Guidance on Remedies.
• Ensure the Council keeps oversight of actions agreed as remedies to complaints until completed.
33. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

34. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman