Summary: We found fault with the Council’s failure to ensure delivery of all special educational provision to the complainant’s (Miss X) daughter (Y). We also found fault in the way the Council communicated with Miss X and handled her complaint. The Council’s fault caused injustice to Y and Miss X. The Council has agreed to apologise, to make payments to recognise Y’s educational loss and Miss X’s distress and to carry out some service improvements.

The complaint

1. Miss X says the Council failed to ensure Y received all special educational provision included in Section F of her Education Health and Care (EHC) Plan. Miss X says the lack of availability of provision in an appropriate set for Y’s ability amounted to disability discrimination. Miss X also complains about the Council’s complaint handling.
2. Miss X says the Council failings negatively affected Y’s mental health, self-esteem and confidence. This had also impact on Y’s physical health and school attendance. The Council’s failings, Miss X says, also caused a significant distress to her and affected her physical health and well-being.

Back to top

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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

8. I have not investigated whether not providing individual support in higher sets in Y’s school (the School) amounted to disability discrimination. As established in RB v Calderdale MBC (SEN) [2022] UKUT 136 (AAC) the statutory regimes of Children and Families Act (CFA) 2014 and Equality Act (EA) 2004 are different and distinct. Under CFA 2014 Section 42 councils are responsible for making provision for pupils with special educational needs whereas under EA 2004 Section 85 the duty to make reasonable adjustments belongs to the responsible body of a school. As explained in paragraph four of this decision we cannot investigate school’s actions.
9. I have investigated whether the School delivered all special educational provision to Y as in this capacity the School acted on behalf of the Council.

Back to top

How I considered this complaint

10. I spoke with Miss X and considered the information she provided.
11. I made enquiries with the Council and considered the information it provided.
12. I reviewed the Council’s corporate complaint website information and referred to our guidance notes “Principles of Good Administrative Practice”.
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative framework

Education

14. Efficient full-time education means the education which is suitable:
• to the child’s age, ability and aptitude, and
• to any special educational needs they may have. (Education Act 1996 Section 7)

Delivery of special educational provision

15. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
16. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
17. It is inappropriate for the council to seek to delegate to the school the responsibility for ensuring that the requirements of a child’s EHC Plan are delivered. The statutory responsibility for securing the special educational provision specified in the EHC Plan rests with the council, not the school. It is for the council to prove that it is doing all it can to meet its legal duty to secure for a child the special educational provision to which he is entitled. (R (on the application of HXN) v Redbridge London Borough Council [2024] EWHC 443 (Admin))

Complaint

18. In line with its complaint policy the Council should respond at stage one within ten working days. If the complaint is progressed to stage two a senior officer will carry out a further investigation within 28 days. The Council will keep the complainant informed if its investigation needs to take longer.

What happened

19. At the end of June 2023 the Council issued Y’s final EHC Plan. Among special educational provision included in Section F the Council included:
• weekly social skills small group;
• weekly individual social skills intervention;
• small group support within the classroom during all lessons;
• weekly individual or small group executive functioning intervention;
• daily individual literacy intervention;
• weekly individual emotional literacy intervention;
• weekly small group reading comprehension intervention;
• specified recording equipment;
• use of coloured paper and overlay.
20. In September 2023 Y started attending a mainstream secondary academy (the School). In the first week Miss X told Y’s case officer (Officer 1) the School was not delivering all special educational provision included in Y’s EHC Plan.
21. During the meeting at the end of September the School stated that as a mainstream setting they could not implement the content of Y’s EHC Plan.
22. Throughout October and November 2023 Miss X regularly communicated with the School and the Council about Y’s difficulties caused by the lack of adequate support at school. A few times Y refused to come to school or was late arriving due to being overwhelmed.
23. In October and November Miss X participated in further meetings with the School and the Council. Miss X said it was wrong for Y to be placed in the lowest ability set for Maths as Y was finishing work quicker than other children. The School reaffirmed its position that it could not deliver all special educational provision included in Y’s EHC Plan. They also said the individual and small group support was only available in the lowest subject sets. The School said it would get required equipment and overlay for Y.
24. Following the meeting in October Officer 1 responded to Miss X’s correspondence saying it was for schools and parents to work together to ensure delivery of the Section F recommendations. The School told Officer 1 Y was happy in the School and was making progress. Officer 1 asked whether Miss X wanted Y to remain in the School.
25. At the end of October Miss X complained to the Council about non-delivery of Section F of Y’s EHC Plan in its entirety. Miss X told the Council Y was coming home dysregulated and started to refuse attending.
26. At the meeting in November the School mentioned again their limited resources. The Council suggested carrying out a review in January 2024.
27. At the beginning of December the Council’s officer (Officer 2) told Miss X that before considering her complaint he would discuss the issues with Officer 1 and the School. Officer 2 responded to Miss X’s complaint a month later. He did not uphold Miss X’s complaint. The Council accepted the School had flexibility on implementing special educational provision and was waiting for the evidence which would be available following Y’s assessments carried out in December 2023 to decide on Y’s progress. At the same time the Council accepted its absolute duty to secure Y’s special educational provision.
28. Miss X was not happy with the Council’s response and contacted the director of the children’s services. This communication was treated as a request to escalate Miss X’s complaint to stage two.
29. Miss X asked her councillor and a local Member of Parliament for help. The Councillor contacted the Council.
30. At the beginning of February 2024 the Council’s senior manager (Officer 3) discussed the outstanding issues with Miss X. Another meeting took place.
31. In the third week of February the member of the Special Education Needs Inclusion Support Service (SENISS) (Officer 4) upheld Miss X’s complaint about the delays in implementing special educational provision by the School. She also acknowledged the Council’s failings within communication with Miss X. Officer 4 found the issues complained about had been resolved as a result of a meeting held in the second week of February 2024. She recommended:
• sending apology to Miss X for the delays in addressing her concerns and failings within communication;
• special teacher from SENISS supporting the School with implementation of Y’s EHC Plan;
• identifying any training needs for teachers and teaching assistants in the School;
• sharing the SENISS report and recommendations with Miss X.
32. From the end of February 2024 Miss X continued raising the issue of Y not attending the right Maths set. She also said the Council failed to implement the actions identified in its stage two complaint response. In mid-April 2024 the School told Miss X they could not secure small group support for Maths in a higher set due to insufficient funding and difficulties with recruitment. The School confirmed all other provision was implemented through the nurture class.
33. At the beginning of May 2024, after multiple communications, which also included Miss X’s request for alternative provision for Y, Officer 3 told Miss X the Council had agreed to increase funding for Y, backdating it to the beginning of summer term.
34. Miss X told me that since Y had moved to the higher sets in all subjects there has been a significant improvement in her presentation and willingness to attend the School.

Analysis

Delivery of special educational provision

35. As explained in paragraph 15 of this decision and accepted by the Council in its stage one response to Miss X’s complaint, councils have an absolute duty to secure delivery of the special educational provision included in children’s EHC Plans. This is the case even when a child attends the school and when the school makes all educational arrangements.
36. Despite knowing from the beginning of September 2023 that Y was not receiving support in line with her EHC Plan, the Council failed to act decisively to ensure delivery of all provision included in Section F. For many months the Council:
• failed to take responsibility for delivery of special education provision to Y by suggesting it was the School’s responsibility and outside the Council’s control;
• failed to address the School’s concerns about insufficient funding and difficulties with recruitment. During meetings with the Council and Miss X the School repeatedly raised this issue but it was not addressed until May 2024;.
• failed to address Miss X’s claim Y was not receiving suitable education by being placed in lower sets. Although it is up to schools to decide how they will deliver education to children, councils’ duty is to secure that children with EHC Plans receive suitable education. As explained in paragraph 14 education should be suitable for the child’s age, ability and aptitude and any special educational needs the child might have.
• accepted the School’s delays in making support arrangements for Y on the premise that the results of Y’s academic progress assessments in December 2023 would help to decide the level of support needed. The level of support needed was identified in Section F of Y’s EHC Plan and should have been delivered.
37. The Council’s failings are fault. This fault caused injustice to Y as for many months she did not have the support she needed at school. Miss X told us since Y started receiving most of the special educational provision included in her EHC Plan from September 2024, her school attendance and willingness to engage with school learning had improved. Therefore, on the balance of probabilities, I consider that the insufficient support at the School affected Y’s well-being and meant she struggled to attend.
38. The Council’s fault also affected Miss X as she found it difficult to combine her job and other commitments with providing extra support for Y throughout the school year 2023/2024. Miss X’s individual circumstances made this particularly challenging.

Communication

39. The Council’s communication with Miss X was unsatisfactory. The Council:
• failed to respond to some of Miss X’s correspondence;
• delayed some of its responses;
• at times provided confusing and inaccurate information;
• failed to act upon its commitments.
40. As set up in our guidance notes “Principles of Good Administrative Practice” we expect councils to be open and accountable when delivering their services. This means the councils should be open and clear about policies and procedures and provide clear, accurate and complete advice.
41. The Council did not follow the principles of good administrative practice when communicating with Miss X. This is fault. It caused her injustice as she spent much time contacting the Council and was increasingly frustrated by the inaccuracy of the information received as well as the Council failure to act on its promises.

Complaint handling

42. The Council failed to handle Miss X’s complaint appropriately by:
• delaying its stage one response;
• providing confusing stage one response. The Council did not upheld Miss X’s complaint although it accepted it had an absolute duty to ensure delivery of special educational provision included in Y’s EHC Plan;
• not completing actions identified as needed in the Council’s stage two response.
43. The Council’s failings when handling Miss X’s complaint amount to fault. This fault caused Miss X injustice as she was distressed at the lack of accountability for the Council’s actions. In an attempt to have her concerns treated seriously she finally resorted to contacting her councillor and the Member of Parliament as well as the Council’s leadership team. Miss X’s correspondence with the Council shows the increasing distress at her unsuccessful efforts to get the Council to comply with its statutory duties.

Back to top

Agreed action

44. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Miss X and Y for the injustice caused to them by the faults identified. 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;
• pay Miss X £900 to recognise the injustice caused to Y by non-delivery of all special educational provision from the beginning of September 2023 until February 2024 half term and £450 from the end of February until the end of July 2024. The total the Council will pay is £1,350;
• pay Miss X £750 to recognise the distress caused to her by the Council’s failings.

The Council will provide the evidence that this has happened.

45. We also recommend the Council within three months of the final decision remind the front-line special educational needs staff and their managers of the Council’s absolute duty to ensure delivery of special educational provision included in children’s EHC Plans. The Council should provide us with evidence it has completed this action.

Back to top

Final decision

46. I uphold this complaint. For the reasons explained in the Analysis section I found fault with the Council’s failure to ensure delivery of special educational provision to Y, within its communication with Miss X and its complaint handling. The Council’s fault caused injustice to Y and Miss X. The Council has accepted my recommendations, so this investigation is at an end.

Back to top

Investigator's decision on behalf of the Ombudsman