Summary: Miss X complained the Council failed to ensure her child, Y received an education in line with the provision set out in their Education, Health and Care (EHC) Plan between October 2023 and July 2024. The Council was at fault. Y’s school only let them attend for two hours a day and the Council failed to maintain oversight or resolve this despite Miss X’s complaints. This meant Y did not receive the specialist provision in the Plan during this period. The Council agreed to make payments to acknowledge the impact this had on Y’s education and the distress and uncertainty caused to Miss X. It will also carry out service improvements.

The complaint

1. Miss X complained the Council failed to ensure her child, Y received a suitable education and the provision outlined in their Education, Health and Care (EHC) Plan between October 2023 and July 2024.
2. Miss X said Y has lost out on education, social development and is being excluded from activities within the school which has caused distress and uncertainty.

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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 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.
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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What I have and have not investigated

7. I have investigated from the point Y’s EHC Plan was issued in October 2023 up to the end of the academic year in July 2024.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss 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

EHC 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 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)
12. 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.

SEND Tribunal

13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
14. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
15. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended).

Statutory school age

16. The Education Act 1996 states a child reaches compulsory school age on the prescribed day following his or her fifth birthday. The prescribed days are 31 December, 31 March and 31 August.

What happened

17. Miss X has a child, Y who started in reception at a mainstream primary school (School 1) in September 2023. Previously Y had attended nursery which was linked to the primary school.
18. Y has special educational needs and was issued with an EHC Plan in October 2023. The EHC Plan in section I stated, ‘a state-funded, mainstream primary school when identified by the Local Authority with transfer to a special school that meets the needs of pupils with moderate learning difficulties when identified by the Local Authority’.
19. Section F of Y’s EHC Plan outlines the specialist provision they are entitled to which includes:
• Adult support at all times on a one-to-one basis.
• Access to a communication friendly classroom with adult support to develop speech and interactional skills.
• Daily programme of individual support (up to 10 minutes each day) to develop Y’s gross motor skills.
• Social language groups for five minutes each day.
• A range of sensory activities throughout the school day.
• Social skills intervention sessions.
20. Y attended School 1 but only on a part time basis. The Council’s SEND team carried out an observation of Y at School 1 in November. Records of that note Y was only attending for one and a half hours a day in the morning only. It said Y was struggling to engage in a classroom environment.
21. In January 2024 the Council issued an amended EHC Plan for Y which named School 1 in section I with ‘transfer to a special school that meets the needs of pupils with moderate learning difficulties when identified by the Local Authority’.
22. Miss X complained to the Council in February 2024. Miss X said she complained to School 1 about Y’s lack of education and that it was only allowing Y to attend for two hours a day but nothing had been done to increase the hours. Miss X said the Council approved enhanced funding for Y to attend School 1 full time but it was only allowing Y to attend for two hours a day. Miss X said Y was isolated from their peers in a classroom on their own. Miss X asked the Council to provide a personal budget so she could start meeting Y’s needs.
23. The Council emailed Miss X in response to her complaint stating it agreed Y needed a specialist placement but could not give a timeframe due to a lack of capacity and spaces locally and nationally. It said School 1 had a duty to provide Y with education in the interim and had the funding to do so. It said a senior officer would contact School 1 to discuss Miss X’s concerns.
24. In March 2024 Miss X appealed to the SEND tribunal about Y’s EHC Plan, specifically the naming of School 1 in section I. Y however continued attending School 1.
25. In early July 2024 School 1 held an annual review of Y’s EHC Plan. Records of the review show Y was not attending school full-time and the two hours they did attend was not enough. The review confirmed Y still needed a specialist placement. School 1 said Y could access the school for longer but these should be done via incremental timetable increases.
26. The Council formally responded to Miss X’s complaint in July 2024. Its main points of response were:
• School 1 wanted to increase Y’s hours in small increments. It apologised no progress had been made towards this.
• The Council’s view was that School 1 has sufficient funding to meet Y’s needs.
• The Council was continuing to identify a specialist placement for Y but there was currently a national shortage of those types of schools.
• The Council acknowledged Y was entitled to a full-time education while waiting for a specialist placement.
• School 1 wanted Y to access trips but had a duty of care and needed to complete risk assessment to ensure their safety.
• The Council said it would meet with School 1 to discuss how to increase Y’s education.
• The Council confirmed it had sent Miss X appropriate forms if she wished to request a personal budget.
27. Miss X escalated her complaint to stage two of the complaints procedure and the Council responded in September 2024. Its response did not differ from the stage one response.
28. Miss X remained unhappy and complained to us.
29. Y continued to attend School 1 while Miss X waited for her SEND tribunal appeal to be heard. Miss X told us Y would begin at a specialist school from September 2025.

My findings

30. Y started in reception at School 1 in September 2023 although they did not turn statutory school age until August 2024. However, when the Council issued Y’s EHC Plan in October 2023 it then had a legal duty to ensure Y received the specialist provision in the EHC Plan.
31. The Council was aware from at least November 2023 that Y was not attending school for more than two hours a day and therefore not receiving a suitable education or provision in line with the EHC Plan. This continued throughout the whole of the 2023/24 academic year. Although the EHC Plan states Y required a special placement, it named School 1 as an appropriate setting in the interim. There is no evidence within the Plan that shows Y should only attend School 1 in the interim on a part time basis. Despite Miss X raising concerns and asking for Y to attend school for longer, there is also no evidence the Council took any proactive action or had oversight at the time to try and resolve the matter. It has let the matter drift. That was fault.
32. As explained above the duty to secure provision in an EHC Plan is non-delegable so while the Council provided School 1 with funding it is the Council that retains the overarching duty. The lack of specialist provision for Y in line with their EHC Plan and the lack of action and oversight from the Council was fault. It has impacted on Y’s education and social development in their first year at school and has caused Miss X distress and uncertainty.
33. Miss X refers to matters such as Y being unable to take part in school trips and other school-based activities. These are decisions made by the school based on its own risk assessment and are not linked to Y’s EHC Plan. As explained in paragraph five we cannot investigate what happens in schools. It is open for Miss X to complaint to School 1 directly about these matters.
34. Since complaining to us there has been a further annual review and Y also turned statutory school age which means the Council has further legal duties towards Y’s education. This being the case Miss X should make a new complaint about concerns she has about Y’s education from September 2024 onwards.

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Action

35. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Miss X and pay her £200 to recognise the distress and uncertainty caused to her by Council’s failure to ensure Y received specialist provision in line with their EHC Plan between October 2023 and July 2024. 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. Pay Miss X £4000 to acknowledge the impact on Y’s education and social development caused by the faults above.
3. Remind relevant SEND officers that the Council remains responsible for ensuring provision outlined in EHC Plans are delivered in school regardless of whether the funding has been provided to schools.
4. Ensure the Council has sufficient procedures in place for officers to maintain oversight and respond to concerns that children and young people are not receiving provision set out in an EHC Plan to prevent circumstances from drifting without action.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I found fault causing injustice. The Council agreed to my recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman