Summary: Miss Y complained the Council failed to deliver the special educational provision in her child, Z’s Education Health and Care Plan and provide them with a suitable education. We have found fault by the Council, causing injustice, in failing to: make sure Z received all the special education provision in their Plan and properly investigate Z’s circumstances when they were struggling to attend school. The Council has agreed to remedy this injustice by apologising to Miss Y, making payments to acknowledge the distress caused and impact on Z, and service improvements.

The complaint

1. The complainant, Miss Y, complains the Council failed to:

• provide the special educational provision in section F of Z’s Education Health and Care Plan from March 2022 to February 2023;
• provide Z with a suitable full-time education from September 2022 to February 2023; and
• properly investigate her complaint about these issues.

2. Miss Y wants the Council to apologise and address the impact of the loss of provision and education on Z and their family. She also wants it to take action to ensure this doesn't happen again.  

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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.
4. 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)
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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. Miss Y’s complaint concerns events which arose from April 2022, more than 12 months before she brought her complaint to us in April 2024.
9. But I consider there is good reason to investigate Miss Y’s complaint about what happened from April 2022 until January 2024 when the Council issued its final response.
10. This is because the matters complained about – the delivery of Z’s SEN provision and education – were ongoing from April 2022. And Miss Y pursued her concerns, and subsequently her complaints, about these matters with the school and then the Council without delay during the period from April 2022 until bringing the complaint to us.

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How I considered this complaint

11. I spoke to Miss Y, and made enquiries of the Council, and read the information Miss Y and the Council provided about the complaint.
12. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Special educational needs

13. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and arrangements for meeting them.
14. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision.

The special educational provision in an EHC Plan

15. Councils have 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).
16. 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. But 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. 

Alternative provision

17. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and any special educational needs they may have. (Education Act 1996, section 19(6))
19. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened

20. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

21. The Council completed an assessment of Z’s educational, health and care needs. In March 2022 it sent Miss Y a draft EHC Plan setting out Z’s needs and the special educational provision it proposed making to meet these needs.
22. Miss Y sent her comments on the draft plan to the Council. She also told it her preference was for Z to continue to attend their current school and asked for this to be named as Z’s placement in the final plan.
23. In its response to the Council’s consultation about Z’s placement, the school said it could not meet Z’s needs because it could not provide:

• a quiet space; and
• the enhanced individual support for Z without impacting its ability to meet the needs of other children.

24. The school told the Council, in order to provide Z’s support, it would need extra funding to recruit an additional member of staff. It specified the total amount it would need on top of the higher band funding.
25. The Council told Miss Y it had considered the school’s response and increased its level of funding to intensive. It advised Miss Y the school would not, however, be able to deliver the quiet space provision.

March 2022: Z’s final EHC Plan

26. The Council issued Z’s final EHC Plan on 23 March. It named their current school as the placement. The special educational provision for Z set out in section F included:

• a trained teaching assistant to deliver the Speech and Language Therapy programme;
• a dedicated teaching assistant overseen by a class teacher;
• being met and greeted on arrival at school;
• support from an Emotional Literacy Support Assistant trained staff member;
• access to a quieter area with support from a known adult during unstructured times in the school day; and
• sensory provision from all teaching staff

School’s response to the final EHC Plan

27. The school sent the Council a letter on 23 March confirming it could not provide the level of support for Z set out in EHC Plan because:

• its current staffing was already allocated to support the needs of a number of other children;
• it had no available money in its budget to employ an additional member of staff to support Z; and
• it would need additional funding to recruit another member of staff. Taking into account the agreed increase in its funding level to intensive, it required further funding of £4,785.

April/May 2022: Council considers the request for further funding

28. The Council considered the request for further funding. It arranged for an officer to visit the school and assess whether this was needed.
29. The officer reported the school had clearly demonstrated it could not provide the enhanced individual support for Z set out in the EHC Plan without the additional funding. The request for a further £4,785 was reasonable.

May 2022: Miss Y’s contact with the school about Z’s support

30. Miss Y says the school did not provide all the provision in Z’s EHC Plan from the outset. It told her this was because of a staffing shortage which the Council knew about. She was often asked to come and collect Z from school because they had become too anxious and unable to cope as their needs were not being met.
31. The school told Miss Y it would recruit a teaching assistant to deliver all of Z’s section F provision if the Council agreed its request for additional funding.

June 2022: Council agrees the request for additional funding

32. The Council issued a letter to the school dated 15 June 2022 agreeing to increase its funding level to intensive, plus an additional amount of £4,785 a year.

July 2022: school’s contact with Miss Y

33. The Council told Miss Y there was bad news. The additional funding had not been agreed.

September 2022: start of the new school year

34. Arrangements for the delivery of all Z’s special education provision had not been made. Z still did not have a dedicated teaching assistant and the SALT provision had not been arranged.
35. Z struggled to cope with school from the start of the new school year. Miss Y had a meeting with the school to discuss the issues with Z’s provision.
36. Miss Y says she asked the school for details of the Council’s Education Welfare Officer (EWO) but did not receive a response.
37. In October Miss Y asked the school to arrange an early annual review of Z’s EHC Plan. The school contacted the Council about this and sent the pre-annual review documents.

January 2023: Early annual review meeting

38. The annual review meeting was held on 12 January 2023, with the school, a Council SEN caseworker and Miss Y.
39. The Council does not have a record of the completed review.
40. Miss Y says the school told her it had been working closely with the Council’s EWO on how best to support Z. By this point Z’s attendance for the school year from September 2022 was 32%. The school also asked her at the meeting if she would consider electively home educating Z.
41. As neither the school nor the Council put forward any plan for supporting Z with their difficulties attending school, Miss Y says she later, reluctantly, agreed to a part-time timetable.

February 2023: Z is de-registered from school and electively home educated

42. Z struggled to attend school on the part-time timetable. No additional support was provided.
43. Miss Y instructed the school to de-register Z. She told the Council she had decided to electively home educate Z.

September 2023: Miss Y’s complaint to the Council

44. Miss Y was in contact with the school from February 2023 about her concerns with its level of support for Z. She also asked why it had not arranged any alternative provision for Z, when their attendance had been only 32% for the period from September 2022 to February 2023.
45. She then complained to the Council about the failure to deliver the provision in Z’s EHC Plan and make any alternative provision for them.

The Council’s complaint response

46. In response to Miss Y’s complaint the Council said:

• it was required to secure the provision in an EHC Plan but not to monitor its delivery;
• it has 3,000 EHC Plans in its area and 15 SEND staff. It cannot monitor every plan and relies on schools or parents to tell it if there are issues. In this case the school did not follow the process;
• when it issues an EHC Plan it gives parents information about who to contact at the Council if they have concerns. Miss Y had not contacted it about Z’s Plan;
• it accepted it should have questioned the request in the autumn term 2022 for an early review and apologised for this. But there had been no other fault; and
• it was not told about any issues with Z’s attendance until the review meeting in January 2023. The school had not previously contacted its EWO about Z’s difficulties attending school. The school’s only contact with the EWO was after the review meeting, when it asked for general advice about attendance, without referring to Z.

My view – was there fault by the Council causing injustice?

Failure to deliver the provision in Z’s EHC Plan

47. The Council says not required to monitor the delivery of the SEN provision in the EHC Plans it issues.
48. But, as set out in paragraph 15, we expect a council to have systems in place to check the special educational provision is in place when a new or amended EHC Plan is issued.
49. As the EHC Plan issued in March 2022 was Z’s first Plan, the Council should have checked whether their SEN provision was being delivered. It did not do this.
50. But in any event, in this case, the Council had been told, before and after the final plan was issued, the school could not deliver all the SEN provision – in particular the dedicated teaching assistant. So the Council knew, when it issued the EHC Plan in March 2022, this very important part of Z’s SEN provision would not be delivered.
51. Although the Council later agreed to increase funding so the school could recruit a dedicated teaching assistant for Z, the school says it did not receive the Council’s letter of 15 June 2022 confirming this.
52. The school took no further action to provide Z with a dedicated teaching assistant. The Council failed to take any action to check Z’s missing provision was now in place.
53. The Council also failed to ask the school, when the early annual review was requested in autumn 2022, and at the review meeting in January 2023, about the SEN provision it was delivering to Z and whether they now had a dedicated teaching assistant.
54. It extremely disappointing that, after all the time and effort by the Council, professionals and Miss Y in completing the EHC Plan and agreeing appropriate support for Z, the Council then failed to make sure Z received this support.
55. I consider the Council’s failure to ensure the delivery of all the SEN provision in Z’s plan from 23 March 2022 to February 2023 was fault.

Failure to provide Z with a suitable education

56. The Council says it did not know about Z’s difficulties attending school until the review meeting in January 2023. But it accepts it should have made enquiries when it was contacted by the school about an early annual review in the autumn term 2022.
57. I consider the Council’s failure to ask the school about the reason for the request was fault. Particularly as this was a new EHC plan and it knew there had been issues about the delivery of the SEN provision.
58. Had the Council made enquires in autumn 2022 it would have established Z was struggling to attend school, with absences of around 70%. It missed the opportunity to consider the action it could or should take to address this, not only whether to make any alternative provision for Z, but also, crucially, the support in place for them at school.
59. This failure has also caused Miss Y uncertainty as to whether, had the Council properly considered Z’s circumstances in autumn 2022, there might have been a different outcome.

Impact of the failure to deliver the provision

60. Because of the Council’s failures, Z did not receive the most important part of the provision in their EHC Plan - support from a dedicated teaching assistant. They also missed out on almost all of their SALT provision.
61. Based on the evidence seen, I consider this missing provision had a huge impact on Z. Had they been supported by a dedicated teaching assistant from the start in March 2022, when the plan was issued, instead of Z struggling to attend school, the outcome may have been very different.
62. We usually consider a remedy payment of between £900 and £2,400 a term is appropriate to reflect the impact of missed provision on the child or young person. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
63. Given the extent of the impact on Z of the missed provision I consider a payment towards the top of the range is appropriate.
64. The Council’s failures, in my view, have also had a considerable impact on Miss Y. She was caused distress by the failure to make sure Z was provided with a dedicated teaching assistant and other parts of their SEN provision.
65. She was also caused further upset by the uncertainty of whether, had the proper support been in place for Z from the outset, they might not have reached the point where she felt she had no other option but to electively home educate Z.

Guidance for parents

66. The Council said, in response to Miss Y’s complaint, it gives parents information when it issues an EHC Plan about who to contact at the Council if they have concerns
67. But I have not seen any evidence of this. I asked the Council, in my enquiries about the complaint, for records of the information it provided to parents in the period from February 2022 to January 2023 about the steps they should take if they had concerns about the delivery of the SEN provision in their child’s Plan. The Council didn’t provide any records in response to this enquiry.

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Agreed action

68. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Miss Y for its failure to: ensure the delivery of all Z’s SEN provision and properly investigate and consider the action it should take in response to Z’s difficulties attending school. This apology should be in line with our guidance on Making an effective apology;
2. pay Miss Y, on Z’s behalf, £5,500 (based on a payment of £2,200 a term from 23 March 2022 to the end of January 2023 – for 2.5 terms). This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them; and
3. pay Miss Y £500 to reflect the upset, frustration and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies.
69. And within three months from the date of our final decision, the Council has agreed to:
1. review its procedures for making sure the SEN provision in EHC Plans it issues is being delivered and as a minimum, in line with our expectations, 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. 
2. review the information and guidance it provides to parents and carers of children and young people when it issues EHC Plans about the action they can take if they have concerns about the delivery of the SEN provision including how and who to contact at the Council.

70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman