Summary: Mrs D complained the Council failed to provide the provision in Mr E's Education, Health and Care Plan. We find the Council was at fault for its delays in putting the provision in place. The Council has agreed to our recommendation to address the injustice caused by fault.

The complaint

1. Mrs D complained the Council failed to provide the provision in Mr E’s Education, Health and Care (EHC) Plan. She says Mr E has been without the provision he is entitled to. This has had a detrimental impact on him.
2. Mrs D is Mr E’s advocate. She is representing him in bringing his complaint to the Ombudsman.

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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 may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 from Mrs D and the Council.
8. Mrs 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

9. 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. 
10. 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)  
11. 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

12. Mr E has special educational needs and an EHC Plan. The Council issued an amended final EHC Plan for Mr E in September 2023. The Plan states the Council will secure an interim education package for Mr E until it finds a specialist permanent placement for him.
13. Mrs D complained to the Council in October. She said it failed to secure any provision for Mr E.
14. The Council responded to the complaint at the beginning of November. It said it was sorry it failed to put in place provision for Mr E when it issued his amended EHC Plan. It said it was trying to find the correct support for Mr E, but it had not found anything appropriate yet. It offered Mr E £1,350 for nine weeks of missed provision.
15. Mrs D responded and said Mr E and his mother wanted to accept the offer. She asked if it could extend the offer as the provision was still not in place. The Council agreed to pay a further £600 to remedy another three weeks of missed provision up to the end of November. It paid this money in December.
16. Mrs D emailed the Council in January 2024 and said the family had heard nothing further about Mr E’s provision. She sent a follow up email and said she wanted it to provide interim payments so Mr E could access educational activities.
17. The Council issued a further response to the complaint at the end of March. It said it was sorry Mr E was still without provision. It said it made several referrals for alternative provision. A provider (Provider X) had accepted the referral and it hoped this would start as soon as possible. It said she could contact it when the provision was in place, and it would consider a further remedy.

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Analysis

18. The Council has a legal and non-delegable duty to secure the provision in a young person's EHC Plan. In this case, the Council failed to provide the interim education package when it issued Mr E’s EHC Plan in September 2023.This is fault, which means Mr E has missed out on the education and provision he is entitled to. This has had an impact on his progression.
19. The Council accepted it was at fault when it responded to the complaint. It has apologised and offered £1,950 to reflect the missed education and provision from September until the end of November 2023. While I welcome the Council’s offer, I do not consider it properly reflects Mr E’s injustice. I recommend a further payment to reflect Mr E’s missed education and provision to the end of March 2024 (when the Council issued its final response to the complaint).
20. I understand since Mrs D complained to us, the Council has started providing some provision for Mr E at Provider X. However, this period is outside the scope of my investigation.
21. We have asked the Council in a recent case to provide training to its staff to ensure they are aware of the Council’s non-delegable duty to secure the provision in EHC Plans. Therefore, I have not recommended a further service improvement.

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Agreed action

22. By 22 August 2024 the Council has agreed to pay Mr E £2,000 to reflect his lost education and provision from December 2023 to the end of March 2024. We would suggest he uses this payment for his educational benefit.
23. The Council should provide us with evidence it has complied with the above action.

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Final decision

24. There was fault by the Council, which caused Mr E an injustice. The Council has agreed to my recommendation 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