Summary: Mrs X complained the Council failed to secure the special educational needs provision in her child D’s Education, Health, and Care plan. The Council was at fault because it failed to ensure the plan was in place, which caused D to miss special educational needs provision. The Council’s fault also caused avoidable time and trouble for Mrs X in pursuing her complaint. The Council agreed to apologise and pay a financial remedy. It will also share a copy of our decision with, and issue reminders to, relevant staff.

The complaint

1. Mrs X complains the Council failed to ensure her child D received the Special Educational Needs (SEN) provision in their Education, Health, and Care (EHC) Plan, after D started a new school in April 2023. Mrs X also says the Council delayed in responding to her complaint about this.
2. Because of this, Mrs X says D missed SEN provision they needed, and their behaviour in school worsened. Mrs X also says this caused her stress. She wants the Council to provide compensation for the SEN support D missed and ensure D’s EHC Plan is in place.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when a school is acting on behalf of a council to secure educational provision as set out in Section F of a young person’s Education, Health, and Care Plan.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• any injustice caused is not significant enough to justify our involvement; or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
9. 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

10. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
11. Mrs X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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

What should have happened

Education Health and Care (EHC) plans

13. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.

Duty to secure EHC plan provision

15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make 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)  

Educational placement

16. The EHC Plan is set out in sections. Section I gives the name and/or type of educational placement.
17. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. This is called Elective Home Education. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
18. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with SEN who are Electively Home Educated. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

Appeal rights and the SEND Tribunal

19. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
20. Once the Council issues a final EHC Plan, there is a right of appeal to the SEND Tribunal against the:
• description of the child’s SEN;
• SEN provision specified;
• school or placement specified; or
• fact that no school or placement is specified.
21. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
22. This means if a family appeals to the tribunal about the SEN provision or school placement/ lack of school placement in a final EHC Plan, we cannot investigate issues in the process that led to that final Plan. That is connected to the issue that has been appealed.
23. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, where there is support in an EHC Plan that is not being delivered and we decide the cause is not connected to the appeal.

What happened

24. Mrs X’s child, D, is of secondary school age. In February 2023, the Council issued D with their first EHC Plan. This named a mainstream school placement for D at School B. Before this, D had been Electively Home Educated.
25. Mrs X appealed to the SEND Tribunal about the Council’s decision to name School B in D’s EHC Plan, because she did not think it could meet D’s needs. She also complained to the Council in April 2023 that she did not think School B would properly deliver the SEN provision set out in the Plan.
26. D started attending School B in May 2023. After D began at School B, Mrs X withdrew her appeal to the SEND Tribunal about the suitability of the placement. D continued to attend School B for the rest of the 2022/2023 school year.
27. In July 2023, the Council responded to Mrs X’s complaint at Stage 1 of its complaints procedure, 15 weeks after she made the complaint. It said it was satisfied School B had delivered the SEN provision in D’s EHC Plan so the complaint was not upheld. Mrs X asked to escalate her complaint to Stage 2 of the Council’s complaints procedure. She also brought her complaint to the Ombudsman, but we told her the Council would need to finish its complaints procedure first.
28. In September 2023, D started year 8 at School B. A month later, in October 2023, D stopped attending School B. Mrs X said she withdrew D from the school following an incident where she had raised safeguarding concerns with the school. Mrs X told the school and the Council she wanted a new school placement for D, so asked for a review of the EHC Plan. She said she would be Electively Home Educating D in the meantime.
29. In November 2023, the Council responded to Mrs X’s complaint at Stage 2 of its complaints procedure. It confirmed its position from Stage 1, that it was satisfied School B had properly delivered D’s EHC Plan. It noted Mrs X had now withdrawn D from School B to provide Elective Home Education. The Council had completed its consideration of the complaint, so we began our investigation. The same week, the Council issued a draft amended EHC Plan for D following the review Mrs X had sought the month before.
30. In December 2023, Mrs X raised a further complaint with the Council. She said it had recorded the wrong home address for the family in the recent draft amended EHC Plan. The Council responded two weeks later to apologise for this oversight. Mrs X escalated the complaint to Stage 2, complaining about how the Council’s SEN service had considered her preferences about a new school placement for D, and communicated with her about this.
31. In mid-December 2023, the Council issued a final amended EHC Plan for D following the review. This recorded the Council considered a mainstream school type to be suitable for D, but they were instead being Electively Home Educated. Mrs X appealed to the SEND Tribunal about this Plan.
32. Two weeks later, the Council issued a Stage 2 complaint response to Mrs X’s later complaint. It said it was satisfied with the service it had provided in considering Mrs X’s preferences about a new school placement for D. Mrs X brought this later complaint to us also.

My findings

Delivery of EHC Plan

33. The February 2023 EHC Plan set out the SEN provision D should receive at School B. I have summarised the key provision D should have received according to the Plan in the table below. I have also explained my findings, on the balance of probabilities, about what D received.
34.  

35. D received most of the provision in their EHC Plan when attending School B. However, the Council accepted they did not receive communication intervention. They also did not receive the correct SEMH support. This was fault.
36. The Ombudsman recognises 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. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum, the Council should have systems in place to:
• check the special educational provision is in place when it issues a new or substantially different EHC plan, or there is a change in placement;
• check the provision at least annually via the EHC Plan review process; and
• investigate complaints or concerns that provision is not in place at any time.
37. We would have expected the Council to check the educational provision in D’s EHC Plan was in place, in good time after they started at School B. In this case, Mrs X raised concerns with the Council before D started at the school, so it should have quickly investigated this.
38. The Council did not make reasonable efforts to investigate and resolve the issues reported by Mrs X with delivery of the Plan. This was fault which meant D missed some SEN provision they were entitled to. The Council should remedy the injustice caused during the time D attended School B, from the start of May 2023 to the start of October 2023. This is approximately one term of education.

Response to Mrs X’s complaint about delivery of the EHC Plan

39. The Council’s corporate complaints procedure says it will respond to complaints within 28 days, or 90 days for complex cases. It took the Council 102 days to issue a Stage 1 complaint response, and a further 97 days to issue a Stage 2 response. These delays were fault. In responding to our enquiries, the Council accepted it took too long to respond to Mrs X’s complaint. It said this was due to increased demand on its SEN service and it was seeking to address this by ensuring sufficient capacity within the service.
40. In responding to the complaint, the Council did not properly investigate or respond to all the issues Mrs X raised. Its response focused only on the SEMH section of the Plan rather than addressing each concern. The Council’s failure to properly investigate the complaint was fault.
41. The Council should remedy the avoidable time and trouble caused to Mrs X by the faults in its complaint handling.

Mrs X’s later complaint to the Council

42. Part of Mrs X’s later complaint to the Council was that the Council recorded the wrong address in D’s amended draft EHC Plan. The Councill apologised for, and corrected, this oversight. The Ombudsman is a publicly funded body with limited resources. We may decide not to investigate an issue if we consider there is no merit in investigating further based on the level of injustice caused or the value of any outcome we could achieve. It would not be a proportionate use of the Ombudsman’s limited resources for me to look at this issue further.
43. Mrs X also complained about how the Council’s SEN service considered her preferences about a new school placement for D after she withdrew them from school, and how it communicated with her about this. Mrs X has appealed to the SEND Tribunal about the educational placement named in D’s latest December 2023 EHC Plan. Therefore, as explained at paragraph 22, I cannot investigate the issue of how the Council considered D’s educational placement. This is connected to the issue Mrs X has appealed. Any injustice Mrs X or D may have experienced due to this issue is the same as the injustice which Mrs X seeks to remedy via the Tribunal process.

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Agreed action

44. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN provision to support their education, such as direct interventions to support communication or SEMH, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
45. In deciding a suitable financial payment to recognise the impact of D’s missed SEN provision, I considered the following.
• During this period, D was in years 7 and 8 of secondary school. As set out in our Guidance on Remedies, we consider the first year of secondary school to be one of the more significant periods in a child’s school career.
• D received most, but not all the SEN provision set out in their EHC plan.
46. Based on this, I consider a remedy of £400 for each term of missed SEN provision to be suitable.
47. Within one month of our final decision the Council will:
1. apologise for the faults identified and the impact of those faults on the family. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology;
2. pay Mrs X a total of £500 comprising of:
1. £400 to recognise the term of SEN support D missed from the start of May 2023 to the start of October 2023. This is intended for D’s future educational benefit; and
2. £100 to recognise the avoidable time and trouble caused to Mrs X by fault in how the Council handled the complaint.
48. Within three months of our final decision the Council will share a copy of our decision with relevant staff across its Special Educational Needs and Disability service. It will remind staff that:
1. the Council has a statutory duty to secure the SEN provision in a child’s EHC plan, which it cannot delegate; and
2. where a family raises concerns that an EHC plan is not being delivered, it should properly investigate and assure itself the provision is in place without delay.
49. The Council will provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. There was fault by the Council which caused D to miss special educational needs support, and avoidable time and trouble for Mrs X in pursuing her complaint. The Council agreed to our recommendations to remedy this injustice and issue reminders to its staff about its duty to ensure EHC Plans are delivered.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman