Summary: Ms D complains the Council failed to provide enough evidence her son was receiving all the provision set out in his Education, Health, and Care plan in his school. We found no fault in the way the Council considered and investigated Ms D’s concerns about the school’s delivery of X’s special educational needs provision.

The complaint

1. The complainant, Ms D, complains the Council have failed to provide sufficient evidence her son (X) is receiving all the provision in Section F of his Education, Health, and Care (EHC) plan.
2. Ms D says, as a result, she has experienced distress and uncertainty. She also said X may have had a loss of special educational needs provision.

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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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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)
7. 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

8. As part of my investigation, I have:
• considered Ms D’s complaint and the Council’s responses;
• discussed the complaint with Ms D and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law and guidance to the complaint.
9. 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

Education, Health, and Care plans

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. 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.
11. 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).
12. 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 policy

13. The Council’s policy says it will:
• acknowledge complaints within two working days and provide its stage one response within 15 working days; and
• if a complainant requests a review of the complaint, it will provide its stage two response within 20 working days.

What happened

14. Ms D’s son (X) has health conditions which impacts his ability to receive his education.
15. In Summer 2023 the Council issued X with a final amended EHC plan following Ms D’s appeal to the SEND Tribunal. This set out X’s special educational needs and the provision he should receive from the school listed in his EHC plan.
16. In Autumn 2023 Ms D complained to the Council. She said it was failing to provide X with the special educational needs provision set out in his EHC Plan. She said this was:
• Communication and interaction, which included a speech and language programme consisting of weekly direct sessions from a therapist, two indirect sessions by a trained member of school staff, and planned opportunities for social interactions with adults and peers;
• Cognition and learning, which included a specialist and adapted curriculum for children delivered in class, small groups and with daily pre- and post-tutoring; and
• Social, emotional, and mental health, which included daily checks and support to enable X to express his emotions and develop his social understanding and language. This could be Lego therapy, social stories and recreational times in small groups with an adult to encourage and facilitate games.
17. In response, the Council did not uphold Ms D’s complaint. It explained the speech and language provision was to be delivered by X’s school. The school had confirmed X was receiving the provision as set out in the EHC Plan. However, some provision was delivered in class as X enjoys being in class and did not want to leave the classroom for some interventions. It gave Ms D the details for the school officers to contact and explained X’s progress will be reviewed in his next annual review.
18. Ms D was not satisfied with the Council’s response. She believed the Council had wrongly just relied on feedback from the school without any evidence X’s provision was being delivered as set out in his EHC plan. She asked for evidence of the delivery of the provision and said its complaint response was late.
19. The Council held a meeting with the schools head teacher and special educational needs coordinator (SENCo). The notes of the meeting shows:
• it questioned the school on how X’s EHC plan provision was being delivered based on Ms D’s concerns, including by who, the frequency, and why some provision was delivered in class and not out of class;
• the school explained all the provision in X’s EHC plan was being delivered and set out the days each provision or intervention was taking place. It also said some out of class provision was delivered in class as this was X’s preference and it had had concerns he would not be part of some social elements of the school day if taken out of class; and
• it asked the school to provide X’s timetable to show the interventions and support and the most recent speech and language report from the therapist.
20. In late 2023 the Council provided its final complaint response to Ms D. It did not uphold her complaint. It explained it had considered her concerns, discussed the concerns with the school and considered the available information. It was satisfied X was receiving the special educational needs provision set out in his EHC plan and relevant school staff was aware of X’s needs. It suggested Ms D should speak with the school regarding her concerns and to receive feedback.
21. Ms D remains unhappy about the Council’s response and believes X still does not receive all of the special educational needs provision set out in his EHC plan. She asked the Ombudsman to consider her complaint.
22. Ms D shared with the Ombudsman:
• daily logs from the school. She said not every day was recorded, some provision took place on different days and often X was supported in class rather than outside of class. She had asked the school to provide more feedback regarding some provision, but the school explained this was not possible;
• statements made by X in which he explained when he was receiving provision and that some provision was either no longer provided or only sometimes being provided;
• a school timetable she had requested from the school since February 2024 which she first received in April 2024. She said this was not detailed enough and did not show the provision was being delivered;
• an email from X’s class teacher which confirmed his academic progress had not progressed as much as expected. The teacher explained this was likely to be due to the more challenging curriculum, but Ms D believes this is because X has not been receiving all his special educational needs provision; and
• communication with the school’s SENCo regarding sending more detailed feedback about X’s work in school to Ms D.

Analysis and findings

X’s EHC plan provision

23. The Council was entitled to delegate the delivery of X’s EHC plan provision to his school, including the speech and language therapy provision. However, when a council does so, it remains responsible for ensuring the provision is being delivered.
24. Ms D believes the Council was wrong to find X was receiving the special educational needs provision set out in his EHC plan based on the information it received from X’s school.
25. I have considered whether the Council properly considered Ms D’s concerns about the provision X received in school. I have not found the Council at fault. In reaching my view I was conscious:
• it had arranged for and funded the school listed in X’s EHC plan to deliver his special educational needs provision;
• it acknowledged and investigated Ms D’s concerns about some provision not being delivered for X, or as frequents as it should. In doing so, it met with the head teacher and SENCo to confirm the provision in place for X to access and sought some information about when key provision was being delivered;
• it considered the school’s information against the evidence Ms D had provided. It was satisfied the school was aware of X’s special educational needs and his provision was being delivered in line with his EHC plan, including why some out of class interventions took place in the classroom; and
• I would not expect the Council’s investigation to require observations of the delivery of provision based on the concerns raised and evidence brought to its attention. Nor, can I say X’s lesser progress during the academic year, in comparison to his targets, is evidence he did not receive his special educational needs provision.

School’s communication with Ms D

26. I cannot consider the actions of the school in relation to how it communicated and provided feedback to Ms D. This is because I cannot investigate the internal management of a school.
27. I understand the school has communicated with her, provided some feedback, and has recently offered to meet her weekly. However, if she remains dissatisfied in how it communicates with her regarding X’s progress and activities, she can complain to the school. If she believes X needs more support or provision to enable him to reach his targets, this is a matter to be discussed in the upcoming annual review.

Complaints handling

28. The Council provided its stage one complaint response to Ms D one day later than set out in its policy, and its stage two response within the 20 days set out in its policy. Its responses set out how it had considered the complaint and its findings.
29. I am not satisfied the one day’s delay was fault or caused Ms D an injustice.

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Final decision

30. I have completed my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman