Summary: The Council was at fault for failing to fund Dr B’s son’s special education needs provision for more than a school term. This likely caused Dr B’s son distress, as well as having an impact on his education. Dr B also had to spend time at home trying to provide the support his son was missing. The Council has agreed to make symbolic payments to both Dr B and his son to recognise their injustice. It has also taken action to improve its service – action which aims to stop similar problems happening again.

The complaint

1. The complainant, whom I refer to as Dr B, complains that the Council delayed its funding for his son’s special educational needs (SEN) provision, which meant his son’s school could meet his needs. I refer to Dr B’s son as C.
2. Dr B says:
1. C’s middle school said all the SEN funding was in place for his move to high school. But the Council then failed to agree the funding with C’s new school for four months after he started. This was despite the Council’s own policy saying a child’s funding moves with the child when they change school.
2. When Dr B became aware of this problem he emailed the Council, but it did not reply. He needed to chase this up in January by sending a tracked letter to the Director of children’s social care.
3. This is the second time the Council has failed to fund or deliver C’s SEN provision, and the second time Dr B has complained to the Ombudsman. He feels the Council has not learned from its mistakes.
3. Dr B says C missed out on SEN provision for four months, and the benefit of such provision can no longer be recovered. Dr B also says he and his family spent a considerable amount of time trying to provide extra support to C.
4. Dr B wants compensation for himself and his family. He also wants the Council to significantly improve its service.

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The Ombudsman’s role and powers

5. 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)
6. If we are satisfied with a council’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)
7. 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

8. I considered information from Dr B and the Council. Both had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s responsibilities

9. A child with SEN may have an education, health and care (EHC) plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections, including section F: the special educational provision needed by the child or the young person.
10. Councils have a duty to make sure children receive the special educational provision set out in section F of their EHC plans. (Section 42 Children and Families Act 2014)
11. The Courts have said the duty to arrange this provision is non-delegable. This means if a council asks another organisation to deliver the provision and that organisation fails to do so, the council remains liable. (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
12. The Council’s website says that, when a child has complex SEN, their school may get extra funding from the Council’s ‘high needs block’. The funding is allocated through a banding system, based on the child’s SEN, which goes from band 1 to band 7. The allocation is for the school to use to provide additional support. The funding band transfers with the child when they move to a different school.

What happened

13. In late 2021, C’s school held a review of his EHC plan. It noted that he would be moving to a new school the following September, and said:

I have written confirmation from the local authority that his current level of funding will indeed follow him, allowing [his new school] to recruit a full time 1-1 to be with [him].

14. C’s ‘high needs funding category’ was listed as ‘Mainstream school band 7’.
15. The Council issued C’s amended EHC plan – with his new school named – in February 2022. Among other things, the plan said the Council was to provide:
• 1:1 support to help C move around the school.
• 1:1 support in lessons for 27.5 hours per week.
• A targeted maths programme four times per week.
• Four 20-minute physiotherapy sessions per week by trained school staff.
• An occupational therapy programme delivered by trained school staff.
16. C started at his new school in September.
17. The Council visited C’s school in November. The school said it had been unable to recruit a teaching assistant when C started, but it had since done so, and C now had 1:1 support. However, its staff had yet to be shown how to deliver C’s physiotherapy.
18. In December, Dr B complained to the Council. He said there had been a delay to C’s SEN funding, which meant C had missed out on support since starting high school, including 1:1 support, physiotherapy and occupational therapy.
19. Shortly after, C was discharged from hospital following an operation to halt leg growth (as one of his legs was longer than the other).
20. Dr B has provided an email from C’s occupational therapist from mid-December, saying, “I have left numerous messages for school asking them to contact me to arrange [C’s] OT input with no avail”.
21. In January 2023, after getting no reply from the Council, Dr B complained again. C’s SEN caseworker called him straight away and apologised for the delay getting C’s SEN funding in place. She said the Council would deal with this as a priority.
22. Shortly after this, the Council told Dr B that it had agreed C’s funding.
23. In March, after Dr B had expressed his dissatisfaction with the delay to C’s support, the Council told him it had backdated the funding to September 2022 so C’s school could deliver some extra support.

My findings

24. The Council accepts that it did not agree C’s funding with his new school for four months after he started. And, although 1:1 support was put in place after around two months, C remained without much of the other support he needed.
25. This was fault by the Council. And I have seen no explanation for why this situation was allowed to develop, given that the Council’s own policy is that a child’s SEN funding travels with them when they move school.
26. The Council has apologised to Dr B and said it has backdated C’s SEN funding to September 2022, which means his school can now deliver extra support.
27. However, this is not an adequate remedy. C needed 1:1 support when he started his new school, but did not get it. He also needed therapy provision throughout the term, but did not get it. Even if he received extra support several months later, it is unlikely that this provided the full benefit that C would have received had the support been delivered at the right time.
28. Consequently, it is likely that the delay to C’s SEN funding caused him an injustice.
29. Furthermore, this is not the first time Dr B has had to complain to the Ombudsman about delayed SEN funding. Although there were no significant delays to the Council’s complaint-handling, it is likely he was caused an injustice by having to raise this matter for a second time. He also had to try and deliver some of C’s support at home.
30. The Ombudsman cannot order that someone receive ‘compensation’ in the way that a court might. But we can ask councils to make symbolic payments to recognise injustice, in line with our remedies guidance.
31. The Council should now provide symbolic financial remedies to recognise the injustice caused to C (distress and a loss of provision) and Dr B (time and trouble in making the complaint, and inconvenience from having to provide extra support himself).
32. Although we previously upheld a complaint and recommended symbolic payments to Dr B and C, it appears the Council did not make the necessary changes to its service.
33. But the Council says it now has made the right changes, including:
• fundamental changes to the way payments are processed;
• improved processes, including meeting with schools in the spring term to discuss funding; and
• improved measures to track which children need additional funding to transfer to their new school.
34. Any efforts to improve its service are a matter for the Council to decide, not the Ombudsman. Time will tell whether they are effective.

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Agreed actions

35. Within a month, the Council has agreed to:
• Make a payment of £2,000 to Dr B, on C’s behalf, to recognise C’s injustice from a lack of SEN support for more than a school term.
• Make a payment of £500 to Dr B to recognise that he had to try and provide some of the missed support himself at home.
• Make a further payment of £500 to Dr B to recognise the time and trouble he has gone to trying to get the Council to sort C’s SEN funding out for a second time.
36. The Council will provide us with evidence it has made these payments.

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Final decision

37. The Council was at fault for failing to fund C’s SEN provision for more than a school term.

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Investigator's decision on behalf of the Ombudsman