Summary: Ms Y has two sons who both have Education, Health and Care plans in place. Ms Y complained the Council has failed to implement the provision in either plan, and the Council accepted this to be true. We found the Council at fault and recommended the Council apologise, make a payment in acknowledgement of the injustice caused, and make service improvements.

The complaint

1. Ms Y complains the Council has failed to implement the provision in both her children’s Education, Health and Care (EHC) plans, since she complained in November 2023. She would like the Council to put the provision in place as soon as possible.

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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. 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

5. I have not investigated the content of the EHC plans as Ms Y has a right to appeal this to the SEND Tribunal if she disagrees with it. My investigation has looked only at how the Council has implemented the provision within the EHC plan.

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How I considered this complaint

6. I have considered information provided by the Council and Ms Y, alongside the relevant law and guidance.
7. Ms Y and the Council may comment on this draft decision before a final decision is made.

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What I found

Law and guidance

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.

What happened

11. Ms Y has two children (A and B) who both have EHC plans in place. A’s plan was issued in February 2023, and B’s plan was issued in May 2023.
12. In November 2023, Ms Y complained to the Council that neither of her children were receiving the provision set out in their EHC plans.
13. The Council issued new proposed amended EHC plans for A and B in February 2024.
14. In April 2024, the Council accepted that the provision in A and B’s 2023 plans had not been provided. It said it would ensure that the provision was put in place for the following school term. This is five months after Ms Y complained.
15. The Council acknowledged there had been a delay in responding to Ms Y’s complaint and offered £100 in recognition of the time and trouble this had caused.

Findings

16. The Council has accepted it did not ensure A and B’s EHC plan provision was in place between February 2023 and April 2024 for A. This is a period of 13 to 14 months. The Council had not checked the provision was in place after it issued the EHC plans, which amounts to fault.
17. The provision which was needed for A was intended to help them to develop social skills, manage difficult feelings, prolong focus and develop writing skills. This was to be provided by way of additional support in the classroom.
18. The provision was not in place for B between May 2023 and April 2024. This is a delay of 11 months, which is fault for the reasons above.
19. B’s provision included weekly speech and language therapy sessions of at least 30 minutes out of the classroom, one to one and small group help with reading and writing, and additional support within the classroom.
20. A has missed three terms plus one month of provision. This should be acknowledged by way of a recognition payment. I am recommending a payment of £1,000 per term plus £250 for the additional month. This amounts to £3,250.
21. B has missed three terms less one month of provision. I am recommending the Council recognise this by way of £1,500 per term for B as he has missed out on speech and language therapy as well as classroom support, so the injustice to him is greater. Three terms less £450 as the delay is one month short of three terms, amounts to £4050.
22. The Council also failed to quickly investigate and act on the complaint raised in November 2023, which is also fault. Ms Y was left without a response or resolution for four months. This should be recognised by way of a payment of £250.

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Agreed action

23. Within one month of the decision, the Council should:

• Apologise for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
• Make a payment to Ms Y, to use as she sees fit for A and B’s benefit. This should be £3,250 for A, and £4,050 for B.
• Pay an additional £250 to acknowledge the injustice caused to Ms Y by the Council’s complaint handling.

24. The total payment recommended is therefore £7,550.
25. Within three months of the decision, the Council should:

• Consider the reasons for the delay in implementing the provision set out in the EHC plans and produce an action plan to ensure the issues are not repeated.
• Consider the reasons for the delay in dealing with Ms Y’s complaint and produce an action plan to ensure the issues are not repeated.

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

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Final decision

27. We found the Council is at fault and has caused an injustice. The Council has agreed to provide a personal remedy and to carry out service improvements.

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Investigator's decision on behalf of the Ombudsman