Summary: Ms X complained the Council is not providing her son, S, with 1:1 special support as provided in his Education, Health and Care (EHC) Plan. Ms X also says the Council’s complaint handling has been poor. The Council has failed to consistently provide the support provided in the EHC Plan and has delayed in responding to the complaint. This has affected S’s ability to access education and caused him and Ms X distress.

The complaint

1. Ms X complained the Council is not providing her son, S, with one-to-one support from a Special Education Needs Teaching Assistant (SENTA) as provided for in his Education, Health and Care (EHC) Plan. This has affected S’s ability to reach his potential and caused him anxiety. Ms X would like the Council to ensure S receives the support as set out in the EHC Plan and provide extra tuition outside school to catch up on his missed education. Ms X also says the Council’s complaint handling has been poor.

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The Ombudsman’s role and powers

2. 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)
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. 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

5. 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, Special Education Needs Regulations 2014, Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’)
6. Ms X and the Council 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

7. A child or young person with special educational needs 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.
8. 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)  
9. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

The Council’s policies and procedures

10. The Council’s complaint procedure is online. It says the response target for a stage one response is ten working days but can be extended up to 20 working days if required. The response target for a stage two complaint is 25 working days with an extension of up to 60 working days if required.

What happened

11. I have summarised below the key events; this is not intended to be a detailed account.
12. S attends secondary school and is working towards his GCSEs. He has an Education, Health and Care (EHC) Plan which says he should have full time SENTA (Special Education Needs Teaching Assistant) providing him 1:1 support throughout the school day (including break times and lunch times). The SENTA must have specialist training relevant to the child’s complex needs.
13. Ms X said S is not receiving 1:1 support from a SENTA full time in school, as identified in his EHC Plan. He often shares a Teaching Assistant (TA) with other children with support needs. She said S is sometimes alone in the Access Centre while the TA supports other children in the main school building.
14. Ms X complained to the Council in September 2022. The Council issued a stage one response in early February 2023. It apologised for the delay and referred to a letter before judicial action from Ms X’s representative from November 2022 and the Councils response in December 2022. Following receipt of the Councils response in December 2022, Ms X decided not to take judicial action.
15. In late February 2023, Ms X said she was not happy with the stage one response and asked for a stage two investigation.
16. An independent investigating officer produced a report for the Council in August 2023. It upheld Ms X’s complaint and said the school ‘acknowledge that, on occasions, the 1:1 support may not have always been achieved. Although adequate funding, in regard to S, would appear to have been allocated.’
17. The school responded to queries from the Council in October 2023. This says a member of staff always supervises S. It explains if S is struggling when supported by a TA in the main school, the TA will escort him to the Access Centre and return to the lesson as per the timetable. There are staff in the Access Centre.
18. The Council issued a stage two response in November 2023. The adjudicating officer referred to the report of the investigating officer and upheld Ms X’s complaint. It said there was clear evidence the Council provided financial support for a 1:1 ratio for S, however there are ‘statements from a variety of people to say that there may not have always been the allocation of resources to specifically ensure this ratio.’ The Council apologised and said it would ensure S has the 1:1 support as outlined in his EHC Plan.
19. In the middle of January 2024, the Council completed an Early Help Review. Ms X, the social worker assistant and manager from the school attended. Ms X said she was concerned the school were not meeting S’s needs and were not providing the 1:1 support as set out in this EHC Plan. The school manager ‘explained that they are short staffed and confirmed that 1 TA was being used for 3 year 11 students, however they have put out an advert for a new TA.’
20. At the beginning of April, S wrote an email about the lack of support he received; Ms X sent this to my attention. S said he has not received full time 1:1 support from a teaching assistant for a full week over the last two years. He explained his ‘teaching assistants are frequently distracted with assisting both myself and up to two other students simultaneously’ and ‘…TAs sometimes have to leave to help students in other rooms’. He also said there is a ‘near absence of 1-to-1 support during break and lunch times. I am almost always by myself in an empty room during these times’.
21. In April, the Council responded to my enquiries. I asked if the school is now providing the 1:1 support as set out in S’s EHC Plan, and as agreed within the remedies section of the complaint response. The Council’s response said ‘the School has consistently maintained that S receives one to one support’ and referred to the email from the school in October 2023 which it said confirmed this. In further correspondence, the Council said at the time of the investigation, the SEND team leader did not check with the school whether the 1:1 support was consistently maintained and accepted S may not have received this. It said the independent investigation took place during the summer holidays when school staff were not at work and so did not take part in the investigation.
22. The Council also provided a copy of S’s timetable which shows which TA is supporting him in each lesson.

Analysis

The substantive complaint

23. The Council explained an independent investigator investigated the complaint and it was for them to determine how to conduct the investigation. The investigation took place in August 2023 which was during the summer holidays. The report from the investigator lists the head teacher as ‘personnel involved’ in the investigation but they are not on the list of people interviewed.
24. There were three months after the independent investigator issued their report in August, before the adjudicator sent their letter in November. The adjudicating officer could have used this time to clarify matters, check understanding and ensure the final complaint response was accurate.
25. In response to my enquiries, the Council provided email correspondence dated October 2023 between it and the school which it says confirmed S was receiving 1:1 support. I do not consider this email strongly supports the Councils current position. The email says S is ‘always supervised by a member of staff’ but does not say what ratio this is and whether they are SENTA and specifically trained as required in the EHC Plan. This was sent when the adjudicating officer was preparing their stage two response. If they considered this satisfied the EHC Plan, their stage two response would have been different.
26. There are conflicting views about whether S is receiving the support according to his EHC Plan. Ms X and S are clear the school is not consistently providing 1:1 SENTA support for S. S explained he often shares a TA with two other children with needs in his class. The Early Help Review in January 2024 supports this view as the manager from the school confirmed one TA is often used to support three children. The Councils stage two investigators report (August 2023) and adjudicators response letter (November 2023) said S was not receiving the support as per his EHC Plan. The Council is now saying this is not correct and provides email correspondence (October 2023) and recent timetables as evidence in support. The recent information provided by the Council is not compelling, I do not consider this is strong enough to undermine the previous evidence which supports the complaint.
27. I consider the Councils stage two response is an accurate reflection of what has happened over the last two years and is continuing today. The school is not providing full time 1:1 SENTA support for S. This is fault. The Council remains liable as the responsibility for fulfilling an EHC Plan is non-delegable.

The complaints procedure

28. Ms X complained to the Council in September 2022. The Council should have sent a response within 20 working days (if an extension was required). The Council issued a stage one response in early February 2023. This is roughly a four-month delay. This is fault.
29. In late February 2023 Ms X requested a stage two review. The Council should have sent a response within 60 working days (if an extension was required). The Council issued a stage two response in November 2023. This is roughly a six-month delay. This is fault.

Injustice

30. I have considered the impact the Council’s faults had on S. The Council’s failure to provide full time 1:1 SENTA support for S meant he could not fully access his education. This has impacted on his learning and caused him anxiety.
31. This has also caused Ms X distress which the Council made worse by delay responding to her complaint.

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Agreed actions

32. Within four weeks of my final decision, the Council will:
• Apologise to S and pay him £1200 for the distress caused by failing to consistently provide 1:1 support as per the EHC Plan.
• Put in place the provision for S as set out in his EHC Plan.
• Apologise to Ms X and pay her £300 for the distress the matter caused her which the Council made worse by delay in responding to the complaint.
• Review how the Council ensures children with an EHC Plan with SENTA provision are receiving support.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. The Council is at fault for failing to consistently provide the support provided in the EHC Plan and delay in responding to the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman