Summary: Miss X complained about the Council’s failure to provide her with support for her special educational needs, as set out in her Education, Health and Care Plan. We found the Council to be at fault. The Council has agreed to apologise and make a payments to Miss X and her mother to acknowledge the distress caused by the lack of specialist provision.

The complaint

1. Miss X complains about the Council’s failure to provide support for her special educational needs (SEN) as required by her Education, Health and Care (EHC) Plan during her last two terms at college.
2. She says this caused significant distress and deterioration in her mental health.
3. Miss X is represented by her mother, Mrs Q in making this complaint,

Back to top

The Ombudsman’s role and powers

4. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. I refer to it as the Tribunal in this decision statement.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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

8. I have investigated what happened between January 2023, when Miss X’s EHC Plan was issued, to July 2023. This was when Miss X was due to leave College P.

Back to top

How I considered this complaint

9. I spoke to Mrs Q about the complaint and considered the written information she provided.
10. I considered the Council’s response to my enquiry letter, including its case records.
11. I considered the relevant law and guidance.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before I made a final decision.

Back to top

What I found

Special educational needs

Education, Health and Care (EHC) Plan

13. A child or young person SEN may have an 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.

14. We cannot direct changes to the sections about their needs (section B), education (Section F), or the name of the educational placement (section I). Only the Tribunal or the council can do this.

Failure to secure provision

15. 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 2014). 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)
16. 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

17. I have summarised below the key events. This is not intended to be a detailed account.
18. Miss X is a young person with SEN. Since September 2021, she attended College P. In December 2021, Mrs Q submitted a request for a EHC needs assessment. The Council initially refused to do so but later agreed during an appeal to the Tribunal.
19. As part of the EHC Plan process, the Council consulted with College P as to whether it was able to fulfil the EHC Plan. In response, College P told the Council it could provide some, but not all, of the support set out in Section F.
20. College P told the Council Mrs Q had been told about this but still wanted to go ahead with College P being named in the EHC Plan. Mrs Q says she did not tell College P she agreed to support not being provided. Rather, she indicated she did not want the lack of resources at College P to be a reason for further delay in issuing the final EHC Plan.
21. A final EHC Plan was issued in January 2023. This was three months late. This delay has been the subject of a previous investigation by the Ombudsman.
22. College P attempted to recruit a learning assistant to provide 1:1 support to Miss X but this was unsuccessful. According to the Council, College P made alternative arrangements within its existing staff “in order to provide some support to Miss X”.
23. Mrs Q says the Council failed to provide some of the learning-based support identified in Section F. She was specifically concerned about the lack of:

• support with English;
• a scribe;
• emotional literacy support;
• staff trained to work with students with Autism Spectrum Disorder;
• low level check ins; and
• executive function support.

24. She says she was told by College P it had been unable to fulfil the EHC Plan because it was issued too late for it to recruit staff in time. Mrs Q says she contacted the Council twice in March 2023 about the lack of provision, but she received no reply.
25. An annual review was held in April 2023. Mrs Q says the focus of the meeting was to consider what would happen when Miss X finished her course at College P in June 2023. She says it failed to address her concerns about the lack ongoing of support and the impact this was having on Miss X in terms of her mental health.
26. In early June 2023, Miss X’s mental health had deteriorated to such an extent she felt she could no longer attend College P. She was signed off by her doctor as being medically unfit to attend.

Mrs Q’s complaint

27. Mrs Q formally complained to the Council in April 2023. In response, the Council accepted there had been gaps in provision. It said Miss X had received:

• various reasonable adjustments to support her in the classroom, practical tasks and assessments;
• horse rising; and
• weekly 1:1 mentoring support.

28. The Council reminded Mrs Q it had provided all the occupational health (OT) provision, speech and language therapy (SALT) and counselling that were also included in the EHC Plan.
29. The Council apologised for the stress this lack of provision caused to Miss X and Mrs Q.
30. Dissatisfied with this outcome, Miss X brought her complaint to the Ombudsman. She says the lack of support led to Miss X failing exams and assignments. This caused a deterioration in her mental health.

Analysis

31. As I have explained above (paragraph 16) the Ombudsman does not expect councils to carry out a watching brief as to what educational institutions are providing on a day-to-day basis. But when a council becomes aware there is a problem, we expect it to respond promptly.
32. In this case, the Council was aware that College P was unable to fulfil the EHC Plan from the outset. The consultation response from College P makes this very clear. It highlighted many areas of provision that it would be unable to provide. It also included Mrs Q’s response. This indicted Mrs Q had agreed with the lack of provision and proposed “workarounds”.
33. Despite knowing College P was unable to deliver the SEN support, it finalised the delayed EHC Plan, naming it in Section I.
34. An email from Mrs Q to the Council from early January evidenced her position at that time. She already had sourced SALT and OT provision herself and this could not be funded until the final EHCP was issued. She explained, “due to the time taken to get the plan, my priority is to sign it off so we can start using the personal budget to pay for her interventions”.
35. Mrs Q had already waited three months longer than she should have done for the Council to issue the final EHC Plan. It is entirely understandable that she did not want further to delay that would cause Miss X to miss out on what was available at that time. While she may have reluctantly accepted College P’s position, this did not mean the Council’s statutory duty to ensure Section F provision no longer applied.
36. Similarly, the Council’s legal duty cannot be delegated to the educational provider. I am concerned that the Council’s complaint response stated that it had provided College P with funding required to fulfil the EHCP. It said “as the named provider, College P were responsible to delivering the identified provision.
37. While I acknowledge the difficulties in recruitment, this does not absolve the Council of its duty to ensure provision, as identified in the EHC Plan is available. Nor did Mrs Q’s reluctant acceptance that some provision was unavailable.
38. It is not in dispute that Miss X did not receive all the support she should have received for two terms. The Council was responsible for ensuring it was available.
39. This was fault.

Injustice and remedy

40. I am satisfied that both Miss X and Mrs Q suffered an injustice as a result of fault by the Council. Miss X missed out on support she needed to help with her learning, and this impacted on her health and well-being. I am also satisfied Mrs Q experienced distress and frustration trying to engage with the Council about the lack of support. These injustices require a remedy.
41. When recommending a remedy, we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:

• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• where there has been a loss of education, the Ombudsman usually recommends between £900 and £2400 per term. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made. In this case, Miss X remained at College P for most of the two terms that are the subject of this investigation. She also received some of the SEN support she was entitled to, for example OT and SALT. Taking this into consideration I recommend a payment of £1000 per term of missed provision.

Back to top

Agreed action

42. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Miss X and Mrs Q.
2. Pay Miss X £2000 in recognition of the two terms of missed SEN support.
3. Pay Mrs Q £250 to acknowledge her distress and frustration caused by the lack of provision.
4. Provide relevant staff with a copy of this decision statement. This is to serve as a reminder of the duty to ensure the SEN support set out in Section F of the EHC Plan remains with the Council and cannot be delegated to educational institutions.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. I have found the Council to be at fault and the Council has agreed to action my recommendations to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman