Summary: Miss X complained the Council failed to ensure her child, Y, received provision in line with her Education, Health and Care Plan. The Council acknowledges it failed to ensure the school was delivering the provision to Y. We found fault on the Council’s part. The Council has agreed to our recommendations to remedy the injustice caused by the faults to Y and Miss X.

The complaint

1. The complainant, who I shall refer to as Miss X, complains the Council failed to provide her child, Y, with the provision in her Education, Health and Care (EHC) Plan from September 2022 to July 2023.

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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. 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)
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. I considered Miss X’s complaint and the information she provided.
6. I considered the information I received from the Council in response to my enquiries.
7. Miss X and the Council had the opportunity to comment on a draft of this decision. I considered Miss X’s and the Council’s comments before making this final decision.

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What I found

Relevant law and guidance

Education, health and care (EHC) Plans

8. 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.
9. 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)
10. 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.

The Council’s complaints procedure

11. The Council has a two-stage complaints process. The Council says it will try to respond to all Stage 1 complaints within 10 working days of receipt.
12. Where a Stage 2 review is undertaken, the Council’s Independent Investigating Officer will try to provide a response to complaints within 28 working days of receipt of the request to escalate the complaint.

What happened

13. Miss X, has a child, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. In September 2022 Y began attending mainstream secondary school. Y’s final EHC Plan was issued in February 2022.
14. Between September 2022 to July 2023 Miss X advised the school and the Council that she was concerned that Y was not receiving the provision in her EHC Plan. Miss X also raised her concerns at Y’s annual review of her plan in March 2023. Following this annual review, a final EHC Plan was issued in June 2023. Miss X used her right to appeal to the SEND Tribunal because she was unhappy with the contents of this plan.
15. On 19 July 2023, Miss X made a formal complaint to the Council that it had not provided Y with some of the provision in her EHC Plan for a whole academic year, specifically,
• Regular use of an ELSA (Emotional Literacy Support Assistant) approach to track progress;
• At least one half hour session per week of social communication skills; and
• A designated 1:1 mentor to talk about anxieties, through play therapy for example.
16. Miss X complained the school did not have a member of staff trained as an ELSA to deliver the provision and that the lack of provision was affecting Y’s attendance, her mental health, anxiety and it was preventing her from making progress emotionally, socially and academically.
17. The Council responded to Miss X’s Stage 1 complaint on 27 September 2023. It said it could not investigate her complaints because she had exercised her right to appeal to the SEND Tribunal.
18. Miss X requested her complaint be escalated to Stage 2. Miss X told the Council that her complaint was about the Council’s failure to ensure the provision outlined in Y’s EHC Plan dated February 2022 was being delivered and not the most recent EHC Plan that she had appealed to the SEND Tribunal.
19. The Council sent its Stage 2 response to Miss X on 15 November 2023. It said that it had not taken steps to determine whether the school were providing the provision in Y’s EHC Plan when concerns were raised and the Council apologised for this. However, it was of the view that support was in place for Y and there was no loss of provision. It advised her that the school did not have anyone trained to deliver the ELSA programme but they were using ELSA techniques. It also advised Miss X that the school now had an individual who was ELSA trained and could support Y.
20. Miss X disagreed with the Council’s view that there was no loss of provision and she brought her complaint to the Ombudsman.

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Analysis

21. It is the Council’s responsibility to ensure a child is receiving the provision outlined in their EHC Plan.
22. The Council acknowledges it did not take steps to determine whether the school was providing the provision in Y’s EHC Plan. This is fault.
23. The Council says that although it did not take steps to ensure the provision was in place, the school had provided it evidence that there was no loss of provision. I cannot be satisfied that Y received the support she was entitled to and I have explained my reasoning below.

Social communication skills

24. Y’s EHC Plan states ‘Social communication skills should be explicitly taught as part of a timetabled social communication group with peers for at least one half hour session per week’. From the information the Council has provided to me, I have seen no evidence of this provision being timetabled and delivered to Y. The Council’s Stage 2 response does not acknowledge the school’s response to this and there is no information on how this provision was delivered. Therefore, I consider there was a loss of provision.

Designated Mentor

25. Y’s EHC Plan states ‘A designated 1:1 mentor to talk about her anxieties through play therapy, for example. (the frequency of these session will be led by school and agreed by both mum & school)’. The Council says there were twice weekly sessions with a key worker using ELSA approach to discuss emotions and issues causing anxiety and there were daily check ins. There was no loss of provision but the Council should have addressed; the school’s approach to providing this provision, the apparent combination of mentoring and ELSA and the suitability of play therapy.

The use of an ELSA

26. Y’s EHC Plan states ‘Use an ELSA approach, which is regular (daily at first) and based on pre and post assessment measures so that progress can be tracked’. The Council says there was no loss of provision because ELSA techniques were used by the school in the absence of an ELSA. Using techniques that require specific training, by someone who is not trained, can do more harm than good if not delivered properly. Y’s EHC Plan demonstrates the importance of an ELSA in managing her anxiety. By not having the correct support in place at the correct time is likely to have had a detrimental impact on Y. This is supported by the decline in her attendance and the deterioration of her mental health. Therefore, I find the Council at fault.
27. The use of an ELSA when Y first started secondary school was imperative in helping her with the transition from primary to secondary due to her social, emotional and mental health needs. These needs are well documented within Y’s EHC Plan and therefore the Council was aware of them. From September 2022 to July 2023, Y’s attendance at school declined, her anxieties around attending school increased, CAMHS had become involved and advised the school that ELSA provision was required for Y and she has not had the best start she could have had to her secondary education.
28. The Council says it believes Y’s non-attendance was not because the provision was not being delivered but it was because her father was ill. It also says that at no point did Miss X request tuition at home when Y was not attending school. The Council does not have any evidence to support these statements.
29. The Council’s assumption the school can provide the provision without checking has caused Miss X to worry and it has caused confusion about the provision Y was receiving. This warrants recognition.

The Council’s complaint handling

30. The Council responded to Miss X’s Stage 1 complaint 8 weeks later than it should have. This is fault. This caused frustration, uncertainty about Y’s education and Miss X felt as though she was being ignored and that the Council did not care about the impact the loss of provision was having on Y.
31. There is further fault with the Council’s Stage 1 response because it failed to address Miss X’s concerns and its reasoning for not doing so was incorrect. When the Council did respond to Miss X at Stage 2, it did not acknowledge or apologise for the Stage 1 error, there was no reference to it. This caused Miss X frustration and she was put to unnecessary time and trouble in having to explain her concerns again.
32. The Council was also at fault for sending its Stage 2 response to Miss X nearly three weeks later than it should have. This caused further frustration.

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Agreed action

33. For the above reasons, there is fault by the Council that caused injustice to Miss X and to Y. The Council has not sufficiently remedied the injustice. Y was denied the provision she was entitled to and risked being disadvantaged by her special educational needs, and so the impact on her in terms of her education and social, emotional and mental health, is likely to be significant.
34. To remedy the injustice caused by the identified faults, the Council has agreed, that within four weeks of this final decision, it will:
• Apologise to Miss X and to Y for the identified faults;
• Make a symbolic payment to Miss X of £300 in recognition of the distress, uncertainty it caused and the time and trouble she was put to when it failed to respond to her complaints effectively;
• Make a symbolic payment to Miss X of £2700 (£900 per term) in recognition of Y’s missed provision. Ms X should use this for the benefit of Y as she sees fit.
35. The Council has also agreed that, within three months of this final decision, it will review its policy for checking EHC Plan provision and ensure it has systems in place to check the special educational provision is in place when a new or substantially different EHC plan is issued, when there is a new placement and when concerns are raised. The Council will then make any relevant improvements to its policy and send it to all relevant staff in the education department and ensure the improvements are implemented.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. There is fault by the Council that caused injustice to Miss X and to Y. It has agreed to remedy the injustice caused by the faults and implement service improvements. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman