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 fault by the Council for its failure to recognise Y’s communications book was not available to him and direct the school to ensure he had access to it. There was no fault on other matters complained about. The Council should apologise and make payment to acknowledge the injustice this caused Ms D.

The complaint

1. The complainant, Ms D, says the Council has failed to ensure her son (Y) receives some of the special educational needs provision set out in his Education, Health, and Care (EHC) plan. This includes:
• the use and updating of a communication book, which Y should have access to in school to enable him to express and explain his views;
• social, emotional and mental health provision and social skills opportunities; and
• occupational therapy provision.
2. Ms D says, as a result, she has experienced distress and uncertainty. She also said Y 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 (Y) has health conditions which impacts his ability to receive his education.
15. In spring 2023 an annual review of Y’s EHC plan took place and the Council issued Y with an amended final EHC plan. This set out Y’s special educational needs and the provision he should receive from the school listed in the plan, including support from a speech and language therapist.
16. Ms D was not satisfied with some contents in the EHC plan and appealed to the SEND Tribunal.
17. In Autumn 2023 Ms D complained to the Council. She said it was failing to provide Y with the special educational needs provision set out in his EHC plan. She said this was:
• speech and language provision; and
• a communication book originally created by NHS professionals for Y, which he should have access to in school to enable him to express his views. The book should be reviewed and updated in collaboration with the school so it continued to be a useful tool for Y.
18. Soon after, Y’s school commissioned its own speech and language provision. Ms D therefore no longer had concerns about this. However, she told the Council she also had concerns about the social, emotional, and mental health provision Y was receiving in his school.
19. In response, the Council did not uphold Ms D’s complaint. It explained the speech and language provision was to be delivered by Y’s school. The school had confirmed Y was receiving the provision as set out in the EHC plan. It gave Ms D the details for the school officers to contact and explained Y’s progress will be reviewed in his next annual review.
20. 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 Y’s provision was being delivered as set out in his EHC plan. She asked for evidence of the delivery of the provision and explained Y’s communications book was different to the home school feedback book. She also said its complaint response was late.
21. The Council held a meeting with the schools Head Teacher and special educational needs coordinator (SENCo). The notes of the meeting shows:
• Y is generally happy in school and has a good relationship with teachers and his teaching assistant;
• the school’s view Y has become more verbal and had progressed;
• a home school communications book was in place previously, but the school found this was no longer useful in its communication with Ms D. An email address was used instead for parents to report or comment on concerns;
• it questioned the school on how Y’s EHC plan provision was being delivered based on Ms D’s concerns;
• the school explained all the provision in Y’s EHC plan was being delivered. It explained support was in place for his social, emotional, and mental health progress, but Y preferred to play alone or with his teaching assistant; and
• the SEND Tribunal process was ongoing, but the school had been part of the process and was aware of the provision Ms D was hoping Y would receive.
22. 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 found:
• Y had access to his one-to-one support in school throughout the school day who supported him with the curriculum and to play with others and develop social interactions with peers. It was therefore satisfied Y was receiving the special educational needs provision set out in his EHC plan and relevant school staff were aware of his needs;
• the school was best placed to develop Y’s curriculum and the Council does not prescribe the school’s timetable. Ms D should therefore speak with the school regarding her concerns about the day-to-day implementation of the EHC plan and to receive feedback;
• the home school communications book had been in place the previous academic year to explain the interventions he was receiving. The school would continue to do so; and
• it acknowledged and apologised for taking longer to provide its complaint response but explained it had informed Ms D about the delay.
23. In December 2023 the SEND Tribunal considered Ms D’s appeal and the Council issued Y’s amended Final EHC plan in January 2024. This included occupational therapy provision. However, most other provision remained the same, including Y’s targets for social, emotional, and mental health, and for staff to recognise and utilise opportunities to encourage Y to use his communications book.
24. Ms D remains unhappy about the Council’s response and believes Y continues to not receive all of the special educational needs provision set out in his EHC plan, or the school does not do enough to support him to meet his social and communications targets. In February 2024 she asked the Ombudsman to consider her complaint.
25. Ms D has since told the Ombudsman:
• Y’s occupational therapy was not in place by March 2024. She informed the Council and it was put in place by the school shortly after;
• Y does not have access to his communications book as it is currently at home and she no longer brings it to school as it was unused. She shared examples of incidents in school where Y had been unable to express himself and would have benefitted from his communications book; and
• Y’s teacher and the school’s SENCo confirmed Y prefers not to participate in games and be inside after eating, is happy to be with his teaching assistant or play alone, and shows no desire for social interactions with peers. She also said a game referred to in the EHC plan was not available to Y as the SENCo had recently confirmed the school would buy it; and
• the school’s SENCo had recently offered to meet Ms D weekly to support good communication between her and the school.

Analysis and findings

Y’s EHC plan provision

26. I can only consider the delivery of provision in Y’s 2023 EHC plan which was the relevant plan for the start of the 2023/24 academic year until early January 2024. This is because Y’s new final amended EHC plan was subsequently issued and any issues about delivery of EHC plan provision such as occupational therapy was not part of Ms D’s initial complaint to the Council.
27. The evidence shows Y had a flexible timetable which set out the classes and some activities he could receive. He had a teaching assistant allocated to support him throughout the school day, including during break and lunchtimes.
28. While the Council is under a duty to provide Y with the provision set out in his EHC plan, it is entitled to delegate the delivery to Y’s school. I am satisfied it provided the school with the funding and resources to deliver the provision in Y’s EHC plan. The school was best placed to arrange the curriculum and timetable which suited Y in liaison with Ms D and professionals.
29. I found the Council considered Ms D’s concerns about the special educational needs provision Y received and its meeting with the school’s Head Teacher and SENCo was an appropriate way to enable it to reach its view whether the provision was in place and being delivered to Y. It was therefore not at fault for reaching its view Y was receiving the majority of his provision as set out in the EHC plan, but the school was not able to progress some provision due to Y’s lack of interest and desire to be part of small groups and activities with peers.
30. However, the evidence shows the Council has misunderstood the reference to the communications book. This is because there are two communication books, namely:
• the home school communications book, which is a tool for the school to provide Ms D with feedback on the activities or events in the school; and
• Y’s communications book, which is listed in his EHC plan as provision he should have access to in circumstances where he may need to express and communicate his views.
31. The Council’s meeting with the school, its complaint responses to Ms D, and its response to the Ombudsman shows the Council has failed to consider the school’s failure to ensure Y’s communication book was available to him and used at appropriate times. This was therefore fault.
32. I cannot say this caused Y an injustice, but I am satisfied there were instances where this may have been a useful tool for Y to have access to. The Council’s failure to address this with the school caused Ms D some distress and uncertainty. She also had some time and trouble to continue to raise this concern with the Council and the Ombudsman.

School’s communication with Ms D

33. 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.
34. 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 Y’s progress and activities, she can complain to the school. If she believes Y 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

35. The Council provided its stage one complaint response to Ms D nine days later than set out in its policy but informed her about the delay and apologised. Its stage two response was shared within the 20 days set out in its policy. Its responses set out how it had considered the complaint and its findings.
36. I am not satisfied the short delay was fault or caused Ms D an injustice.

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Agreed action

37. To remedy the injustice the Council caused to Ms D, the Council should, within one month of the final decision:
1. apologise in writing to Ms D. 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 I have recommended in my findings;
2. pay her £100 to acknowledge the distress and uncertainty caused by its failure to recognise Y has not had access to his communications book in school and action this concern, including the time and trouble she had to continue to complain; and
3. discuss Y’s communications book with the school to ensure he has access to this tool in circumstances where it may help him express his views or concerns. This is relevant for as long as the communications book is listed as special educational needs provision for Y in his EHC plan.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation with a finding of no fault in how the Council considered Ms D’s concerns about the majority of provision Y received in school. However, it was at fault for its failure to recognise Y’s communication’s book was not available to him and ensure the school put this in place.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman