Summary: Mrs X complained that the Council failed to ensure the provision set out in her son’s education, health and care plan was delivered. We found the Council was at fault causing Mrs X’s son to lose out on provision to which he was entitled. Both he and Mrs X suffered distress as a result. The Council has agreed to apologise to Mrs X and make payments to her and her son.

The complaint

1. Mrs X complains that the Council failed to ensure the provision set out in her son’s education, health and care plan was delivered. As a result, he was denied provision to which he was entitled.

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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. 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) 
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 an Education, health and Care Plan.
5. 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)
6. 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 have and have not investigated

7. I have investigated Mrs X’s complaint that the Council failed to ensure the provision in her son’s education, health and care plan was delivered between September 2022 and June 2024 when he left school.

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Plan

10. 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.
11. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 

Maintaining the EHC Plan

12. 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)  
13. 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

14. Mrs X’s son, C, has special educational needs and an EHC plan.
15. In July 2022 a new final EHC Plan was issued including changes to provision to support C’s transition to sixth form in September.
16. On 30 June 2023 Mrs X complained to the Council that the provision set out in C’s Plan was not being delivered.
17. On 28 July an SEN manager responded at stage 1 of the Council’s complaints procedure saying she had contacted the school to investigate Mrs X’s concerns but it said the provision was being delivered. Given the conflicting views, she suggested a referral to an educational psychologist (EP) who could look into the matter and advise on C’s needs and re-setting some of the outcomes in his Plan. Mr and Mrs X agreed to this. The manager said she would respond to their complaint in full once the EP had provided feedback.
18. In September the EP met with Mr and Mrs X to discuss outcomes and amendments to the Plan. She then met with the school to clarify the content of the Plan and suggested some amendments which were added to the Plan.
19. An SEN officer spoke to the school’s special educational needs coordinator (SENCO). She went through each point of Section F of the Plan and asked whether the provision was being delivered and, if so, how. The SENCO explained that a lot of C’s needs were being met through SEN level provision or Quality First Teaching. The officer was satisfied that all the provision in the plan was being delivered.
20. In October and November C paid for four sessions of social skills training out of his personal independence payment (PIP).
21. On 13 November Mr and Mrs X wrote to the Council requesting an update. Having received no response, they wrote again on 8 December expressing concern that they had not received a response and asking how to escalate their complaint.
22. The Council wrote to Mr and Mrs X with an update on 14 December.
23. In a further discussion about the provision, the SENCO told the SEN officer that the school had not continued providing social skills intervention because it did not consider C needed it. The officer explained that this was not the school’s decision to make and the provision should be reinstated. The officer was satisfied that, apart from social skills intervention, all the provision in the Plan was being delivered.
24. In January 2024 the SEN manager wrote Mr and Mrs X stating that, following a review with the school, it had been the Council’s understanding that the school had been delivering C’s provision in full. However, it appeared that there were provisions which the school had felt were unnecessary. The manager explained that the Council had informed the school that all the provision set out in the Plan must be delivered.
25. In February the Council sent an email to the school regarding reinstating social skills intervention. The school said this was not yet in place because of staffing issues.
26. Mr and Mrs X escalated their complaint to stage 2 of the Council’s complaints process. An investigating officer (IO) was appointed who discussed the complaint with Mr and Mrs X on 15 February.
27. The IO upheld Mr and Mrs X’s complaint. She found the school had made a unilateral decision that the social skills provision was not needed and removed this without going through the appropriate process or informing Mr and Mrs X or the Council. This meant the Council was not meeting its legal obligation to provide the provision set out in the Plan.
28. The IO found the Council had responded appropriately to Mrs X’s complaint by contacting the school and seeking advice from the EP. It was satisfied all the provision was being made, but it was given misleading information by the school which later accepted it was not providing social skills intervention. The Council responded appropriately by informing the school that this must be reinstated. The IO recommended that the Council apologise to Mr and Mrs X.
29. On 20 June the Council wrote to Mr and Mrs X enclosing a copy of the IO’s report and apologised for failing to deliver all the provision set out in C’s Plan.

Analysis

Loss of provision

30. In July 2022 a new final EHC Plan was issued. The provision in the Plan should have been delivered from the start of the new term in September.
31. C’s plan stated social skills intervention was to be delivered once a week to support his interaction skills during unstructured times.
32. The school initially stated that all the provision in the plan was being delivered. However, it later accepted that it was not providing social skills intervention because it considered this was unnecessary. It only delivered this for 12 weeks (24 November 2022 – 18 May 2023) even though the plan stated social skills intervention was to be delivered once a week to support C’s interaction skills during unstructured times.
33. I am satisfied that, although officers attempted to resolve the issues, the full provision was not delivered in accordance with C’s EHC Plan between September 2022 and March 2024 when it was re-instated at the Council’s insistence.
34. Although the provision must be delivered by the school, the Council is ultimately responsible securing the provision set out in the EHC Plan. I therefore find the Council was at fault.
35. The loss of provision caused C an injustice. It also caused Mrs X distress and she was put to inconvenience in pursuing the matter with the school and the Council.
36. The Council’s apology goes some way towards remedying the injustice caused, however I do not consider this to be a sufficient remedy.
37. Mrs X also considers other provision in the Plan was not delivered. However, the Council was satisfied that the remaining provision was being provided, albeit in a different way to how the parents expected. For example, by Quality First Teaching which is a style of teaching that focuses on high quality and inclusive teaching for every child in a classroom to ensure each pupil receives teaching that suits their learning style. It includes differentiated learning strategies and SEND resources to support learning for pupils with special educational needs.
38. I am satisfied that officers properly investigated Mrs X’s concerns and were entitled to reach the decision that the provision was being delivered. This was a matter for their professional judgement.

Complaint handling

39. Mrs X complained to the Council on 30 June 2023. The Council responded at stage 1 on 28 July. This was within the Council’s timescales as set out in its complaints handling procedure which states that the response target is 10 working days with an extension of up to 20 working days if required.
40. Mrs X made a stage 2 complaint in early 2024. An IO was appointed in February 2024. The stage 2 response was not issued until 20 June 2024. The Council’s response target at stage 2 is 25 working days with an extension of up to 60 working days if required. There was therefore a significant delay in responding. This was fault and caused Mrs X further distress.

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Action

41. The Council has agreed that, within one month, it will:
• pay Mrs X £250 to use for C’s benefit in recognition of the loss of provision;
• refund the sum of £265 which C paid for social skills training;
• pay Mrs X £250 in recognition of the distress and inconvenience she was put to because of the Council’s failure to secure the provision for her son; and
• pay Mrs X £100 for the additional distress caused by the delay in responding to her complaint.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman