Summary: Ms X complains the Council failed to deliver on its promise of providing extra funding for her child’s education and it has failed to communicate with her effectively with regards to the matter. The Council is at fault and it has agreed to remedy the injustice caused to Ms X and to Y. The Council has also agreed to implement service improvements.

The complaint

1. The complainant, Ms X, complains the Council failed to deliver on its promise of providing extra funding for her child’s education and it has failed to communicate with her effectively with regards to the matter.

Back to top

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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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)

Back to top

How I considered this complaint

6. I considered Ms X’s complaint and the information she provided.
7. I considered the information I received from the Council in response to my enquiries.
8. Ms X and the Council had thenow have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

Back to top

What I found

Relevant law and guidance

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. 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. 

What happened

10. Ms X has a child, Y, who has an education, health and care (EHC) Plan maintained by the Council. The Council was of the view Y’s needs could be met in a mainstream setting. Ms X was of the view Y required a specialist placement to meet his needs and she had evidence to support this. The school Y was attending, School 1, was struggling to meet Y’s needs and he was on a reduced timetable.
11. Ms X used her right of appeal to the SEND Tribunal against the Council’s decision not to name a specialist placement.
12. In January 2024, the Council agreed to name a specialist setting for Y, School 2. Y was due to start School 2 in September 2024.
13. In February 2024, Ms X complained to the Council about its lack of communication. Ms X said Y’s SENCO at School 1 had also contacted the Council and not received a response either.
14. The Council sent its Stage 1 complaint response to Ms X at the end of February 2024. It acknowledged there were delays and lack of communication and it apologised. The Council explained the lack of communication was due to a large SEN caseload and not enough staff and this meant that Ms X’s requests had not been picked up. The Council said it was going to recruit more staff to mitigate this. It hoped this would reduce the time it takes to respond to parents.
15. In March 2024 Ms X emailed the Council and asked for an update on when Y will begin his placement at School 2 and when will School 1 receive the funding as discussed and agreed on in the Tribunal hearing. The Council responded on the same day. It issued Ms X with a final EHC Plan and advised Ms X that the extra funding had been agreed and released for School 1 and School 2 had confirmed they were ready for Y to start in September 2024.
16. School 1 reached out to the Council on 9 April 2024 to discuss matters. The Council responded on 10 April 2024 to say that its understanding was “funding for individual support for Y across the school day and three SEMH type afternoon sessions” was agreed. The Council said it would call School 1 on 15 April 2024 to discuss this.
17. School 1 did not hear from the Council and chased it for a response on 24 April 2024. School 1 said it was disappointed not to have heard from the Council on 15 April 2024. The Council responded to this communication on 10 May 2024 where the council officer said they were going on leave and would look into the matter when they return. By this point, it was halfway through the Summer term.
18. On 29 May 2024, School 1 decided to help Y as much as they could without the funding due to the delays by the Council and there being only six weeks of the term remaining.

Back to top

Analysis

Extra funding for School 1 for the Summer term 2024

19. The evidence shows the Council said in March 2024 that it would provide extra funding to School 1 and after several attempts from Ms X and School 1 in April and May 2024 to obtain this funding from the Council, on 29 May 2024 School 1 decided it would try to meet Y’s needs itself due to the delays by the Council. By this point, Y had missed out on at least half a term of provision.
20. The evidence shows Ms X and School 1 tried to get this funding from the Council but the Council either failed to respond to communication or delayed in providing a response. The funding was for the Summer term but with six weeks of the term remaining, the Council had not made any arrangements to process the funding.
21. The Council’s failure to provide the funding to School 1 for the Summer term in 2024 is fault. The Council has advised me School 1 said they no longer needed the funding but the evidence shows School 1 were somewhat exasperated with trying to obtain this funding and on 29 May 2024, with less than six weeks left of the summer term, School 1 said they would do what they could for Y in the remaining 6 weeks instead. This was because the Council did not do as it said it would. Also, the duty to provide the provision to Y remained with the Council, not with the school.
22. The fault has caused significant frustration to Ms X and it is evident School 1 felt frustrated by the Council’s actions also. Ms X also experienced uncertainty during this period as she did not know if or when the extra funding would be provided to enable School 1 to meet Y’s needs.
23. The fault also resulted in the Council not providing Y with the provision as outlined in his EHC Plan from 14 March 2024 to end of the Summer term 2024.
24. The evidence also shows the Council not only failed to provide the extra funding so that Y’s needs could be met but it did not know what provision Y had received in the summer term in 2024. This is also fault. 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, in this case School 1, 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).  
25. This loss of provision should be acknowledged accordingly.

Council’s communication with Ms X

26. The evidence shows the Council did not always respond to Ms X or School 1 and there were delays in responding. This is fault. The Council acknowledged the delays in communicating and the inadequate service Ms X received. It has apologised for this. Although the apology is welcomed, I do not consider it adequately remedies the injustice caused to Ms X. The fault caused frustration and uncertainty. The Council should remedy the avoidable distress the Council’s actions caused Ms X.

Back to top

Agreed action

27. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Ms X for failing to arrange the extra funding for School 1 for the Summer term 2024 as it promised it would, the avoidable distress this caused and the provision Y missed out on;
• Pay Ms X £400 for the avoidable distress caused by failing to provide the extra funding to school 1 and the lack of communication she received from the Council;
• Pay Ms X a symbolic payment of £900 for Y not receiving the provision as outlined in his EHC Plan during the Summer 2024 term.
28. The Council has also agreed that within three months of this final decision, it will:
• Take relevant action to ensure staff respond to parent’s and school’s concerns in a timely manner;
• Issue a reminder to staff about the Council’s legal duty to make sure the child or young person receives the provision set out in section F of their EHC Plan;
• Take action to ensure it has a mechanism in place to quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
29. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

30. The Council is at fault, and it has agreed to remedy the injustice caused by the fault. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman