Summary: Miss B complained the Council failed to ensure her daughter received the provision in her Education, Health and Care Plan. She also says the Council failed to respond to her complaints within the timescales set out in its complaints procedure. We find the Council was at fault for how it handled Miss B’s daughter’s education and provision. It was also at fault for its delays in responding to the complaint. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Miss B complained the Council failed to ensure her daughter, C, received the provision in her Education, Health and Care (EHC) Plan. She adds the Council failed to ensure C had access to a full-time education. Finally, she says the Council failed to respond to her complaints with the timescales set out in its complaints procedure.
2. Miss B says the matter has had a severe emotional impact on both her and C.
3. Miss B is supported by her advocate, Ms D, in bringing her complaint to the Ombudsman.

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The Ombudsman’s role and powers

4. 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), 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).
7. 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

8. I considered information from Miss B. I made written enquiries of the Council and considered information it sent in response.
9. Miss B, Ms D 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

Special educational needs

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 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)  
12. 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.

Alternative provision

13. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

Part-time timetables

15. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
16. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

17. This chronology includes an overview of key events in this case and does not detail everything that happened.
18. C has special educational needs and an EHC Plan. The Council issued C’s EHC Plan in December 2022. Section F of the Plan says:

• Adults supporting C need to be suitably qualified/knowledgeable in working and supporting children and young people with autism spectrum disorder (ASD).
• Adults will need to spend proactive time (at least 15 minutes daily when C starts attending school, leading to daily check-ins over the week totalling 30 minutes) developing their understanding of C’s views and needs.
• C needs movement and brain breaks following periods of focused learning/task completion.
• C needs proactive targeted support (30 minutes weekly) to develop her emotional and regulation skills. This should be delivered by adults skilled in supporting children with ASD.
• The school needs to allow adjustments in relation to C’s school uniform.
• C’s sensory plan needs to be reviewed termly.

19. The Plan also states the school will ensure C has access to an appropriate curriculum. This should be planned and implemented by teaching and teaching assistant staff through in-class, group, and individual support as deemed appropriate by school staff.
20. C started attending her new school in January 2023. The Council, the school and Miss B agreed C would start on a part-time timetable as part of her integration package.
21. Miss B emailed the Council in early January. She said C had not received the academic support in her EHC Plan. She also said the school had not made the required adjustments around C’s uniform. The Council emailed the school and asked for an update. The school explained C had experienced some issues, but it was not unusual as it was her first week. It said it waiting for a teaching assistant (TA) to support C, but she was receiving support in class. It also said the staff member who spoke to C about her uniform did not realise she had adjustments in place. It said the staff member was now aware. The Council emailed Miss B and provided her with the information from the school.
22. Miss B emailed the Council in mid-February and said C was still not receiving the provision in her EHC Plan. The Council arranged a meeting with Miss B, C and a member of staff from C’s school to discuss the issues. The school confirmed C had a TA, but he was leaving. It said it had arranged a new TA to support C after half term. It said it would ensure staff checked in with C each morning, and it would continue to put in place adjustments regarding C’s uniform.
23. Miss B contacted the Council in mid-March and continued to raise concerns about C’s provision. She said there was a lack of TA support during lessons, and the TA was not ASD trained. She also asked for an early annual review of C’s EHC Plan.
24. The Council referred Miss B’s concerns to the school. The school agreed to Miss B’s request for an annual review. It said C had access to 1:1 TA support every morning. It said it put in place a staged implementation of the provision so C did not become overwhelmed.
25. The school held an annual review of C’s EHC Plan at the end of March. Miss B said she was concerned C did not have a TA support in the afternoon. She also said the school had failed to provide a sensory plan for C and review it. The school said it needed further resources from the Council to provide C with to TA support in the afternoon. It said this would help her access a broad and balanced curriculum. It also said it would complete C’s sensory plan with an ASD specialist service. It said it made the referral in February and it was waiting for a teacher to arrange a consultation appointment.
26. The Council wrote to Miss B after the annual review and agreed to amend C’s EHC Plan.
27. Miss B complained to the Council in late-April. She said it failed to provide the provision in C’s EHC Plan.
28. Miss B contacted the Council and the school in mid-May. She said she would not send C to school because of several bullying incidents. She said C’s mental health was deteriorating. The school emailed Miss B. It said it could provide C with 1:1 maths and English provision with immediate effect once she and C thought it would be helpful. It said it would support C with weekly speech and language therapy, therapeutic time with a counsellor and social intervention. It also said it would work with her and C to review the provision.
29. C returned to school in the mornings from the end of May.
30. The Council responded to Miss B’s complaint in early June. It said the school made significant efforts to engage with C and implement reasonable adjustments to ensure she had access to her provision. It said there had been some issues with TA recruitment. It said the school had addressed the bullying incidents and put in place appropriate sanctions. Finally, it said it would consider increasing the funding allocated to C’s EHC Plan so she could access additional adult support and learning.
31. Miss B referred her complaint to stage two of the Council’s complaints procedure in June. She said C was not receiving full-time education, the provision was not in place and C did not have any TA support in the afternoon. She asked the Council to put in place alternative provision for when C could not attend. She also said the school had failed to do a termly sensory audit as per C’s EHC Plan.
32. The ASD service said it could not provide any support for C’s sensory plan. The school therefore completed the plan with C’s input in late June. Miss B disagreed with the plan and arranged her own sensory processing needs assessment.
33. Miss B chased the Council for a response to her complaint in July. The Council emailed Miss B and said it would extend the timescale and respond by 24 September. It later extended this again to 29 September.
34. C attended school for a couple of days at the beginning of the new academic term in September and then did not return. The Council attended a meeting with Miss B and staff from C’s school in September. Miss B said C was not accessing education, and her mental health was suffering. The school said it would make a referral for C to access out of school tuition.
35. The Council emailed Miss B again and said it would need a further extension to 13 October to respond to the complaint. It issued its final response to Miss B’s complaint on 11 October. It said it agreed funding for a TA in early August, but it did not let the school know until September. It said it was the school’s responsibility to put alternative provision in place for C.
36. The Council issued C’s final amended EHC Plan in November.

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Analysis

37. Miss B is unhappy C did not have an ASD trained TA. Section F of C’s EHC Plan says adults supporting C had to be qualified/knowledgeable and skilled in supporting children with ASD. The school has confirmed the TAs working with C did not always have ASD formal training, but they had knowledge and experience working with children with ASD. This meets the requirements of C’s EHC Plan. I do not find fault.
38. Miss B is also unhappy C did not have TA support in the afternoon. There is no specific reference to TA support in the afternoon in C’s EHC Plan. However, her EHC Plan does say the school will ensure C has access to an appropriate curriculum, planned and implemented by teaching and teaching assistant staff. The school decided the best way implement the Section F provision was through a TA. A TA supported C in the mornings during the spring term of 2023. At the annual review in March 2023 the school explained C would need further support so she could access the section F provision in her EHC Plan during the afternoon. It said the teachers could not provide the level of support C required, and so she needed 1:1 support. The Council did not disagree C needed this further support. However, it did not agree to fund the TA until August, and it did not tell the school until late September. This delay is fault, which caused Miss B frustration. It has also caused C an injustice as she was without the support that would have enabled her to access all her section F provision. It appears the school did try and provide C with some further TA support in the afternoons, but this was not always consistent in every lesson.
39. Miss B says C did not have reasonable adjustments in place for her uniform. When the Council became aware of this issue, it liaised with the school. The school said there was a misunderstanding about the adjustments, but it had resolved it with the member of staff. It confirmed it would continue to remind staff. Each time an issue was raised about the uniform, staff were spoken to, and the relevant adjustments made. These were isolated incidents. It was not unreasonable for the Council to allow the school to resolve these issues through its internal process. I do not find fault.
40. Miss B also says C did not have access to brain breaks. The evidence shows this was in place, but not in the way C expected. As soon as the Council raised the issue with the school, it changed the way it implemented brain breaks to suit C’s needs. I do not find fault.
41. Section F of C’s EHC Plan says she should have a sensory plan, and this should be reviewed each term. The school completed the plan at the end of June. The delay was because the school was waiting for a response from its referral to the ASD specialist service. While I acknowledge this, C’s EHC Plan was not followed as it should have been. The Council was aware of this from the annual review. It has a legal responsibility to ensure a child receives the provision in their EHC Plan. Its failure to do so is fault. The school had already made some adjustments for C’s sensory needs, but the Council’s fault means there was a missed opportunity for further adjustments to be put in place for her sooner.
42. Miss B says she had to privately fund a sensory assessment because of the Council’s failures to ensure the school completed the sensory plan. I do not accept she paid for the assessment because of the Council’s faults. Miss B was unhappy with the school’s plan and so it is more likely than not she would have always paid for her own private assessment.
43. Part-time timetables can be used part of a reintegration package, but they should be reviewed regularly and not be used as a long-term strategy. C started school on a part time timetable because she had been out of a school setting for a while. There is no fault in this approach as it was clearly in C’s best interests. However, the Council should have reviewed the part-time timetable at regular intervals to see whether it was working and whether C could have accessed any other provision. There is no evidence the Council did this. This is fault. It is unclear whether C would have been able to access further provision as she was struggling with school. However, the Council’s fault leaves Miss B with some uncertainty.
44. C returned to school for a couple of days at the start of the new term in September 2023 and then did not return because of her mental health. The Council should have considered its section 19 duties. It failed to do so. This is fault. The Council said in its response to Miss B’s complaint and in internal emails it was the school’s responsibility to provide the alternative provision. This is incorrect. The law is clear about councils’ duties to arrange suitable education for children who are out of school because of exclusion, illness or otherwise, if they would not receive suitable education without such arrangements. The Council should have reviewed C’s case, completed its own assessments, and decided whether its section duties 19 were engaged and whether alternative provision was appropriate for C. Its failure to do so means C was without any education. Its fault also caused Miss B frustration and distress. I understand C started receiving some alternative provision after November 2023, but this period is outside the scope of my investigation.
45. The Council’s complaints procedure says it will generally respond to complaints with 28 days. It can extend this in certain circumstances, and it will inform the complainant as soon as possible. The Council failed to respond to Miss B’s stage one complaint within 28 days. It took nearly four months to respond to the complaint at stage two. While I appreciate it kept Miss B informed of the revised timescales, its delays were excessive. This caused Miss B frustration and she was put to time and trouble chasing a response. When the Council responded to my enquiries, it offered Miss B £1,000 for the injustice caused by faults in its complaints handling. While I welcome the Council’s attempts to try and resolve the complaint, this offer is not in line with our guidance on remedies. I have therefore recommended a more appropriate payment.

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Agreed action

46. By 9 August 2024 the Council has agreed to:

• Apologise to Miss B and C for the injustice caused by fault in this statement.
• Pay Miss B £200 to reflect her frustration and time and trouble caused by how it handled her complaint.
• Pay Miss B £250 to reflect her uncertainty, frustration and distress caused by its failure to review C’s part time timetable and for how it handled C’s section F provision and alternative provision.
• Pay Miss B £800 to reflect the lack of section F provision for C from April to July 2023 and £400 to reflect the lack of alternative provision for C from late September until November 2023. We would suggest Miss B uses this money for C’s educational benefit.

47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. There was fault by the Council, which caused Miss B and C an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman