Summary: Mrs X complained the Council failed to secure animal provision for her daughter, Y in line with her Education, Health and Care (EHC) Plan. The Council failed to secure and provide Y’s animal provision since December 2023 and this injustice continues to date. The Council agreed to reimburse Mrs X for costs she has incurred to ensure Y received that provision. It will continue to do so until it makes suitable alterative arrangements.

The complaint

1. Mrs X complained the Council has failed to secure animal provision outlined in her daughter, Y’s Education, Health and Care (EHC) Plan since December 2023. Mrs X said she has paid for the provision herself and continues to do so which is causing distress and financial loss.
2. Mrs X wants the Council to either fund the provision with the current provider or source an alternative one.

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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 consider whether there was fault in the way an organisation made its decision. 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. 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)
6. 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

7. I considered Mrs X’s complaint and the information and evidence she provided.
8. I considered the Council’s response to my enquiry letter.
9. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments 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.
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 I: The name and/or type of educational placement 

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.

What happened

13. Mrs X has a daughter, Y who is of secondary school age. Y has special educational needs and following an EHC needs assessment the Council issued an EHC Plan for her in October 2023. It named ‘mainstream school’ as her placement.
14. In December 2023 the Council issued an amended EHC Plan for Y. This amended EHC Plan set out that Y would receive an Education Other Than At School (EOTAS) package. Section F of the Plan set out the specialist provision Y was entitled to. Part of the provision was to attend an ‘alternative provider 1 morning a week working with animals in preparation for Key Stage 5 ambition’. The Plan stated Y would receive four hours a week working with animals. This provision was not included in the October 2023 EHC Plan.
15. Records show Mrs X had found a provider (Provider A) to provide the animal work provision prior to the December 2023 EHC Plan and Y had already started attending. Mrs X asked the Council to commission and pay Provider A going forward to fulfil the four hours a week.
16. The Council enquired with Provider A and found they did not have the correct level of insurance which the Council required. It asked Provider A to increase their insurance so it could commission them to provide the provision for Y. Records show however that Provider A did not want to pay the increased insurance costs. Therefore, the Council told Mrs X it could not commission Provider A to provide the animal provision.
17. Mrs X complained to the Council in early 2024 about its failure to commission Provider A. The Council responded and said all providers need sufficient levels of insurance which Provider A did not have. It said therefore it was unable to authorise payments to Provider A. It said Y’s case officer would continue trying to secure an approved provider to provide the animal provision.
18. Mrs X continued paying for Y to attend Provider A to receive the animal provision in line with the EHC Plan. There is no evidence the Council found or offered Mrs X an alternative provider.
19. Mrs X complained to us in March 2024.

The Council’s response to us

20. The Council confirmed Provider A did not have the correct level of insurance and that they felt paying the increased costs was not viable. It accepted it had not found or commissioned an alternative provider.
21. The Council said Y’s annual review was due to take place in September 2024 and it would work to secure appropriate animal provision as part of this process.

My findings

22. The Council issued Y’s amended EHC Plan in December 2023 which included the animal provision. Therefore, it was legally required to ensure that the animal provision was in place from that date. Although there is evidence Y attended Provider A before December, the Council was not liable for that period as the EHC Plan in place at that time did not include the animal provision.
23. The Council is entitled to make sure all of its suppliers and providers have the correct levels of insurance in place. Provider A did not wish to increase their insurance to meet the Council’s requirements therefore there was no fault in the Council declining to commission Provider A to provide Y’s animal provision.
24. However, it was still under a duty to ensure Y received that animal provision and there is no evidence the Council looked for an alternative provider, despite saying Y’s case officer would do so. This means the Council has failed to ensure Y received the animal provision outlined in her EHC Plan since December 2023 and this continues to date. This is fault.
25. The fault means Mrs X had no other option but to fund Y’s provision at Provider A which she has continued to do to date to ensure continuity in her education. While Provider A did not meet the Council’s insurance requirements there is no evidence it was not suitable to meet Y’s needs in line with the EHC Plan.
26. The Council said it will work to resolve this issue as part of the annual review process in September 2024. However, I have made a recommendation below to ensure continuity of Y’s provision until the Council offers alternative arrangements

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Agreed action

27. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X for the distress and uncertainty caused to her by the Council’s failure to secure the animal provision outlined in Y’s EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Upon production of relevant invoices, the Council should reimburse Mrs X the fess she has paid Provider A since December 2023 to commission the animal provision outlined in Y’s EHC Plan. The Council should continue doing so until it provides the Ombudsman with evidence that it has resolved the issue or found and offered a suitable alternative provider.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman