Summary: Ms X complained that the Council failed to ensure her son, C, received the special educational needs provision set out in his education, health and care plan and unreasonably threatened to restrict her contact with officers. We found C did not receive all the one-to-one support set out in his plan. In recognition of the injustice caused, the Council has agreed to apologise to Ms X and make a payment to her.

The complaint

1. Ms X complains that the Council has failed to ensure that her son has received the special educational needs provision set out in his education, health and care plan and that it has unreasonably threatened to restrict her contact with the Council.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

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What I have and have not investigated

5. I have investigated Ms X’s complaint about matters which took place between September 2022 and November 2023.

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How I considered this complaint

6. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the documents it provided.
7. 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

Legal and administrative background

8. 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
9. 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)
10. 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.

Key facts

11. Ms X’s son, C, is in secondary school. He has special educational needs.

2021

12. The Council issued an EHC plan in April 2021. Ms X appealed to the SEND Tribunal against the content of the plan. The Council and Ms X reached an agreement by mediation in May. This was set out in a memorandum of agreement which stated that, from September 2021 C would receive 30 hours per week support from a trusted individual who was able to:
• meet him in the morning for his transition into school
• move with him across curricular areas throughout each day including unstructured break and lunch times.
13. In June 2021 the Council issued a revised EHC plan issued incorporating the provision set out in the memorandum of agreement. The plan named a mainstream secondary school and stated that, from September 2021 when C started at the school, he would receive 30 hours support per week from a learning support assistant under the guidance of the school’s special needs coordinator (SENCO) and class teacher.

2022

14. On 5 September 2022 C started his second year at the school. After a few days Ms X raised concerns with the school that C was not receiving the one-to-one support set out in his EHC plan.
15. On 13 September the SENCO responded saying she had put in place support for all C’s maths lessons that week and would have at least one other lesson of support each day.
16. Ms X replied the following day saying C had not received any support that day. She requested a breakdown of the 30 hours support for the previous week and the following week.
17. Ms X also contacted the Council saying she was concerned that C’s needs were not being met and the provision set out in his EHC plan was not being provided.
18. On 20 September the SENCO wrote to Ms X saying the number of hours set out in C’s EHCP did not necessarily equate to hours of time. She said that, each year, the school made the decision to support the incoming year 7 students with their transition because this made a significant difference to the level of need they developed in the coming months making the school a calmer, happier place for all pupils. She said full support was now in place as set out in C’s timetable.
19. C’s caseworker, Officer A, discussed Ms X’s concerns with the SENCO on 26 September. She then wrote to Ms X explaining that the school did not provide one-to-one support but ensured that the teaching assistant (TA) was the same for each subject. She explained that reduced TA support the previous week was because of staff illness. She also explained that C had one session per week of Nurture group (a teacher-led group focused on supporting social, emotional and behavioural difficulties) and an emotional literacy support assistant (ELSA) as needed.
20. Ms X responded saying C had not yet attended Nurture group or received any ELSA support and was only receiving support from a TA in one class.
21. On 4 October Ms X requested a meeting to discuss the support C had received for the first few weeks of term. She provided a breakdown showing C had received no support for the first week of term and only six hours’ support in the second week. During the last two weeks of September he received some support but not in every lesson.
22. Ms X sent the SENCO an update each day setting out the amount of support C had received. She copied this to Officer A. The updates show that C was not receiving support in every lesson and was not receiving support from Nurture group, ELSA or handwriting support.
23. On 21 October the SENCO sent an email to Ms X saying Nurture group would start after half term and C was on the waiting list for ELSA but this was likely to take several weeks. She also confirmed that handwriting support would start after half term.
24. At the end of November C began receiving ELSA support.
25. On 1 December a special needs officer, Officer B, asked the SENCO to explain how C’s SEN budget had been allocated and to highlight on section F of his EHC plan the provision delivered by the school. The SENCO responded explaining the costing and provided a breakdown of the provision together with C’s school report, student support plan and timetable. She said she felt the school was meeting C’s needs as evidenced by his progress.
26. On 6 December Ms X made a complaint to the Council stating that the provision in section F was not being made.

2023

27. On 1 January 2023 Ms X complained to the school and sent a copy to the Council. She said the provision set out in C’s EHC plan was not being delivered. She said the provision should cover the entire 38 weeks of the academic year, but C was only receiving provision for 36 weeks because, during the first two weeks of the new school year, his provision was removed to support the incoming year 7 pupils. Ms X said the provision should be consistent across the 38 weeks but it had been very patchy. She also said there had been a significant delay in C receiving ELSA and Nurture group support.
28. The school responded saying the EHC plan did not specify that there was a need that must be addressed for the entire 38 weeks of the academic year. It said it had a nominal budget for the year to use in supporting C’s needs and had a strategy in place. It used its resources in what it considered the best way to equally support all students at the start of the year. It said C would receive some support in the first two weeks of term but could not guarantee full timetable support. It said it would not provide this unless it was explicitly stated in the EHC plan.
29. In March the Council issued a revised final EHC plan. Ms X appealed as she was dissatisfied with sections B and F. She also complained to the Council saying C had not received all the provision in his EHC plan.
30. Ms X continued to provide daily updates about the support C was receiving.
31. On 4 May Ms X sent an email to the school’s Head Teacher saying C had been unsupported in four lessons that day and she was becoming increasingly concerned that matters were deteriorating again. The headmaster responded explaining that the school was trying to get some agency staff to improve its coverage.
32. Ms X contacted the Council saying C’s support was being redeployed to cover year 11 examinations. Officer A again asked the SENCO to provide details of the provision C was receiving.
33. The Council responded to Ms X’s complaint in July. It said officers had communicated with the school many times since September 2022 and had held the school accountable for the delivery of C’s provision. It said officers had made phone calls, emails and attended virtual meetings with Ms X and the school to clarify the school’s responsibility to implement the provision in section F. The Council did not uphold Ms X’s complaint.
34. Ms X says that, in September 2023, C’s support was again drastically reduced as the school was diverting support to the incoming year 7 pupils during the first two weeks of term.
35. On 28 November the Council wrote to Ms X saying that the number of emails she was sending officers was unreasonable. It stated that, if this continued, it would have to consider placing a restriction on her contact.

Analysis

Failure to ensure C received the provision in his EHC plan

36. For the first two weeks of term in September 2022, C received minimal support because his TA’s were supporting incoming year 7 pupils. Ms X says transitions were very difficult for C without this support and his mental health suffered significantly as a result. She says it took nearly four months to get the right level of support for him to settle again.
37. Ms X says the same situation arose in September 2023.
38. In addition, Ms X says C’s support was redeployed to cover other pupils’ exams during the year. She says that, in total, there were 8 weeks per academic year when C received no support.
39. There was a disagreement between Ms X and the school about the hours of individual support C needed. The school’s view was that the support was to be spread out throughout the year as it saw fit and it was satisfied that skeleton support during the first two weeks of the academic year was acceptable. Ms X considered C should receive 30 hours of one-to-one support per week throughout the entire academic year.
40. C’s EHC plan dated June 2021 stated that, from September 2021, he would receive 30 hours per week of learning support assistants under the guidance of the SENCO. In addition, the memorandum of agreement dated May 2021 stated that C would receive 30 hours per week support from a trusted individual who was able to meet him in the morning for his transition into school and move with him across curricular areas throughout each day including unstructured break and lunch times.
41. In January 2024 the SEND Tribunal found that, despite the 30 hours of one-to-one support being included in C’s EHCP and confirmed in a memorandum of agreement, it was not provided in full throughout the year. The Tribunal found that C needed support with transitions consistently throughout the school day and for the entire academic year.
42. I find the school failed to provide C with the one-to-one support set out in his EHC plan consistently throughout the academic year. In September he received virtually no support for the first two weeks of the term. Between September and November 2022 he received less support than he should have done and did not begin attending nurture group until after the October half term break. Elsa did not start until the end of November 2022. The following year he received minimal support when year 11 examinations were taking place and also during the first two weeks of term in September 2023.
43. I accept the Council took action to try to resolve the issue with the school. But the fact remains that C missed out on support. This was service failure. It was the School’s responsibility to deliver the support but, despite its best endeavours, the Council is ultimately responsible for the failure to provide the full support set out in C’s EHC plan. Failure to deliver full support caused C a significant injustice. It also caused Mrs X distress and she was put to significant time and trouble in pursuing the matter with the school and with the Council.

Restriction on contact with the Council

44. Ms X says the Council unreasonably threatened to restrict her contact with officers. She says officers told her to copy them into her emails with the school to create a paper trail they could use but the Council then said she was sending too many emails. She felt she was being blocked from pursuing the issue.
45. On 28 November 2023 the Council wrote to Ms X regarding “the unacceptable nature of your continuing communications”. The letter said that, while the Council appreciated Ms X’s dissatisfaction and good intentions in her approach, the volume of emails staff were receiving from Ms X was unreasonable and multiple individuals were included in the emails. The letter stated that, if Ms X continued to communicate in an unreasonable manner, it would consider placing a restriction on her contact which would likely take the form of limiting her contact to one type of communication, such as email, with one named team and a limited amount of contacts per month. The Council said it hoped this would not be necessary.
46. I find no grounds to criticise the Council for sending the letter to Ms X. The Council was entitled to reach the decision that such a letter was necessary, and it explained the reasons for doing so. In any event, no restrictions were imposed on Ms X’s contact with the Council. So, I do not consider any injustice was caused.

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Agreed action

47. The Council has agreed that, within one month, it will:
• apologise to Ms X for the distress she and C suffered as a result of the failure to provide all the support set out in his EHC plan;
• pay Ms X £1000 in recognition of the injustice C suffered. Ms X should use this for C’s educational benefit; and
• pay Ms X £300 in recognition of the distress she suffered and the time and trouble she was put to in pursuing the matter with the Council and the school.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I find fault causing injustice.
50. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman