Summary: Mrs X complains the Council failed to ensure her child P received the special educational needs provision and social care support in their Education, Health, and Care Plan. There was fault by the Council which caused P to miss provision. This also caused distress to P and Mrs X. The Council agreed to apologise, evidence it is taking action to ensure P’s provision is in place, and pay a financial remedy. It will also review its processes for checking Education, Health, and Care Plan provision is in place.

The complaint

1. Mrs X complains the Council failed to ensure her child P received the special educational needs (SEN) provision and social care support in their Education, Health, and Care (EHC) Plan, from 2022 to 2024. She also says it delayed in responding to her complaint about these issues.
2. Because of this, Mrs X says P missed SEN support which caused them to struggle in school. She wants the Council to:
• apologise to both parents, and separately apologise to P;
• ensure SEN provision is in place for P immediately;
• provide compensation for the impact of P’s missed SEN provision; and
• hold staff accountable to prevent recurrence of issues in future for other families.

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The Ombudsman’s role and powers

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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. 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

7. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
8. Mrs X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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 found

Legislation and guidance

Education, Health, and Care (EHC) Plans

10. A child or young person with special educational needs (SEN) 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.
11. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.

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)  

What happened

13. The Council issued P’s first final EHC Plan on 31 August 2022, just before they started year 7 at a new special school placement. We previously considered an earlier complaint from Mrs X about SEN provision P missed before this, because of delays in issuing the Plan. The Council agreed to remedy the injustice caused.
14. In August 2023, just before P started year 8, the Council issued an amended EHC Plan following an annual review. In November 2023, Mrs X complained to the Council that P had not received provision in Section F and Section H2 of their EHC Plan since September 2022, the start of secondary school.
15. In January 2024, the Council had not responded to Mrs X’s complaint, so she came to the Ombudsman. We told her she would need to wait for the Council to respond before we could consider it. After we chased the Council, it issued a Stage 1 complaint response in March 2024. Mrs X escalated her complaint to Stage 2, but the Council did not properly respond further after this. In July 2024, when P was at the end of year 8, we decided the Council had had reasonable opportunity to issue its final complaint response but had failed to do so. Therefore, we began our investigation.

Time period investigated

16. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons it took them longer to complain. Mrs X first came to the Ombudsman in January 2024, so we would usually only look at what happened after January 2023.
17. I have investigated all Mrs X’s complaint, about events after the Council issued a final amended EHC Plan for P on 31 August 2022. The Council did not properly handle Mrs X’s complaint and caused a delay of around four months in the Ombudsman being able to investigate. Therefore, there is good reason to look back further.
18. I can consider any continuing injustice caused by the Council’s faults before Mrs X brought her complaint to us. However, I cannot consider new issues which arose after Mrs X came to us. The law says councils must have reasonable opportunity to respond to a complaint before we look at it. If Mrs X wants to complain about how the Council ensured P received their EHC Plan provision for the 2024/2025 school year, she would need to make a new complaint to the Council about this first. If she remains dissatisfied following the Council’s response, she could then make a new complaint to us to ask us to consider it.

My findings

Delivery of EHC Plan

19. The August 2022 EHC Plan set out the provision P should receive for the 2022/2023 school year. The Council updated the Plan in August 2023 for the 2023/2024 school year. I have summarised the key provision P should have received according to the Plan, which Mrs X says was not in place, in the table below. I have also explained my findings about what P received.

20. The Council did not meet its duty to secure all the provision set out in P’s August 2022 and August 2023 EHC Plans. This was fault.
21. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether every pupil with an EHC Plan is receiving all their SEN provision. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum, the Council should have systems in place to:
• check the special educational provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting;
• check the provision at least annually via the EHC Plan review process; and
• investigate complaints or concerns that provision is not in place at any time.
22. Mrs X said she recalls she raised concerns with the Council about delivery of P’s EHC Plan from January 2023. The Council said it has no record Mrs X raised concerns before her November 2023 complaint. Regardless, we would expect the Council to check the provision in the new EHC Plan was in place, after it issued it in August 2022, especially as P was starting a new school placement. The Council provided no evidence it checked the provision was in place once P started at the school. It also did not check the new Section F or Section H2 social care support was in place following the amended August 2023 EHC Plan. It is also clear the Council did not investigate properly when Mrs X raised concerns in her November 2023 complaint that the EHC Plan was not in place. When it responded to our enquiries in November 2024, it still did not know if all the provision was in place. This fault by the Council meant P missed provision they were entitled to.
23. The Council should remedy the injustice caused by:
• SaLT and OT provision P missed for all three terms of 2022/2023;
• weekly personal assistant support (Section F social care) P missed for the first term of 2023/2024;
• weekly youth worker support (Section F social care) P missed for all three terms of 2023/2024; and
• 29 hours of psychologist support (Section H2 social care) missed across 2023/2024.
24. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, such as direct therapies and interventions, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
25. In deciding an appropriate financial payment to recognise the impact of P’s missed SEN provision, I considered the following.
• During this period, P was in years 7 and 8 of secondary school. Our guidance on remedies says we consider the first year of secondary school to be one of the most significant periods in a child’s school career.
• P missed key therapies and interventions which may have had a significant impact on their ability to access and engage with their education.
26. The Council should provide a financial remedy of £2,400 for the SaLT and OT missed in 2022/2023, and £2,800 for the various social care support missed in 2023/2024. It should also make a further payment to recognise the distress caused to P and Mrs X by the Council’s failings.

Complaint handling

27. The Council’s complaint procedure says it will respond at Stage 1 within 20 working days. It took three months longer than this to issue its Stage 1 response. This delay was fault.
28. When we first asked the Council whether it had issued its final response to the complaint, it said Mrs X never escalated her complaint to Stage 2. This is not correct; Mrs X evidenced she did escalate this. The Council missed this and so never issued a final complaint response. This was fault.
29. The Council’s failure to properly handle the complaint compounded Mrs X’s distress and caused her further injustice.

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Agreed action

30. Within one month of our final decision the Council will:
1. apologise to Mrs X and P for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology;
2. provide evidence to the Ombudsman it is taking action to ensure the SEN and social care provision set out in P’s EHC Plan is in place; and
3. pay the family a total of £5,600, comprising of:
1. £5,200 to recognise the SEN and social care support P missed;
2. £200 to recognise the avoidable distress caused to P’s parents by the Council’s failings; and
3. £200 to recognise the avoidable distress to P.
31. Within three months of our final decision the Council will decide what changes are needed to:
1. its EHC Plan processes or staff training to ensure it has systems in place to:
1. check provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting; and
2. properly investigate complaints or concerns that provision is not in place at any time.
2. its complaint handling processes to ensure when someone escalates their complaint to Stage 2, it properly records this and responds.
32. The Council will provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. There was fault by the Council which caused P to miss SEN and social care support set out in their EHC Plan. This also caused distress to P and Mrs X. The Council agreed to my recommendations to remedy this injustice. It will also review its processes for checking EHC Plan provision is in place.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman