Summary: Ms C complained the Council failed to ensure her son (X) received all the provision set out in his Education, Health, and Care plan. We found X had access to or received most of the provision he should have, but some limited provision was not delivered or was delayed. This was a service failure which caused Ms C and X some injustice. The Council should apologise and make payment to Ms C to acknowledge this.

The complaint

1. The complainant, Ms C, complained the Council failed to ensure her son (X) received all the provision set out in his Education, Health, and Care plan or caused delays in putting it in place.
2. She also said training for school staff and parents were delayed, and when this was provided in October 2024 it was poorly arranged and inappropriate.
3. Ms C said, as a result, X had a loss of educational provision, and she experienced distress and had costs to provide some provision for X.

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The Ombudsman’s role and powers

4. 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)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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.
8. 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)

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How I considered this complaint

9. I considered evidence provided by Ms C and the Council as well as relevant law, policy and guidance.
10. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 found

Education, Health, and Care plans

12. 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.
13. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement
14. 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.
15. 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)
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. 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.

What happened

17. Ms C’s son, X, has special educational needs which impacts his ability to receive an education. His needs and the provision he should receive is set out in his EHC plan.
18. Following a SEND Tribunal appeal in 2023, the Council issued X with an amended final EHC plan which listed a new school placement. X started attending his new placement in November 2023.
19. The provision X should receive included speech and language support. This was arranged with an NHS Speech and language therapist (SLT). However, due to the provision the Tribunal found X needed, a private SLT was also commissioned by the Council to deliver additional provision for X.
20. We previously considered a complaint from Ms C regarding matters relating to X’s education and the EHC plan process, including a short delay in arranging SLT provision up to the end of 2023.
21. Ms C continued to communicate extensively with X’s school and the Council from January 2024 to the end of the academic year. She complained to the Council in May 2024 as she felt X was not receiving all the provision in his EHC plan, or this was not evidenced or communicated sufficiently to her. This included:
• his communication tools such as individual timetables, symbols and objects were not available to him or were not tailored enough to his needs;
• communication methods, vocabulary, and programme to be used with X was not available to him or evidenced to Ms C;
• X had no transition plan when he moved setting or changed classrooms, and not enough support was provided. She had therefore created some tools for X herself;
• X did not have access to a sensory space and some equipment, or there was no evidence of this;
• support by the NHS SLT and the private SLT was inadequate, was unevidenced, and they did not liaise enough with Ms C, including around reviews of X’s progress;
• ongoing involvement of professionals to plan, implement and review the effectiveness of X’s special educational needs provision was not done or was unevidenced;
• Ms C was not invited to meetings and only had short parents’ evenings to receive updates; and
• training of staff in areas set out in X’s EHC plan was not evidenced to her, and other training for staff and Ms C was not delivered.
22. The Council asked the school to confirm the provision in place for X, and to reach out to Ms C to discuss her concerns.
23. The school spoke with Ms C and held a meeting in which it explained the provision it had in place for X and why some tools were not being used as he was unable to follow it. It agreed to some changes in how it worked with X and communicated with Ms C. However, its view was X’s provision was in place and X was doing well in school. It also said it was not responsible for actions of the SLT’s and some training and a communications plan was still to be provided.
24. The Council said some training was delivered to Ms C as set out in X’s EHC plan in May 2024, but Ms C did not agree this was training as set out in the plan.
25. The Council did not uphold Ms C’s complaint. It commented on each part of the special educational needs provision she felt was not in place, and reached its view it was satisfied X had the provision available to him. It also noted the school had worked with Ms C, considered her communication preferences, and agreed to make some changes to how it communicated with her and the tools X could bring home.
26. An annual review of X’s EHC plan was completed in Summer 2024. The Council found X’s school setting to be appropriate but some amendments to the EHC plan was necessary.
27. In July 2024 the school told Ms C it was arranging the outstanding training for staff and Ms C. The school staff training took place in September 2024.
28. The school arranged training for Ms C and other parents in late September 2024 with a weeks’ notice before the training. It sent a flyer with the details to Ms C by email, included a flyer in X’s school bag and emailed her before the training took place.
29. Ms C said she could not attend the training on the scheduled day due to the short notice. She was also unhappy the training was online and for a group of parents and not specific for X. She made a further complaint.
30. In response the school and the Council both said the training was not required to be face to face or only for Ms C. It said the training had been recorded and had been shared with her which she could access. However, the school subsequently decided it would offer Ms C an individual training in the areas set out in X’s EHC plan. This was held in January 2025.
31. Ms C asked the Ombudsman to consider her complaints.

Analysis and findings

Was Section F provision available to X?

32. X’s EHC plan set out the provision he should receive at the school listed in his EHC plan, which he started attending from November 2023.
33. The Council is responsible for ensuring X received the special educational needs provision he was entitled to. To do so it funded the school to provide the provision and commissioned the private SLT to provide the support the NHS SLT was unable to provide.
34. Our previous investigation found the there was a short delay in late 2023 before the Council commissioned the SLT. As the Council had commissioned the SLT support by the end of 2023, I have not found it a fault for causing further delays in doing so.
35. Once the Council had arranged for X’s school and SLT support, I would not expect it to act further unless it became aware of any delays or concerns about the provision which was being delivered. This was when Ms C brought her concerns to the Council’s attention and subsequently made her complaint.
36. The evidence shows the Council sought information from the school to determine whether the required provision was available to X. It found on each point of Ms C’s concerns the provision was in place and did not uphold her complaint. Although several trainings had not been delivered as required it noted these were being planned.
37. I am satisfied the Council properly considered Ms C’s concerns about whether provision was available to X in school. In reaching my view I was conscious:
• it considered why X was not engaging with some provision and views on his progress;
• it was satisfied with the school’s approach to support X and the tools he needed and could engage with was available to him, including its transition planning for when X started in school;
• it considered information from the SLT’s and other professionals to reach its views; and
• it considered communication between the school and Ms C and acknowledged the school had agreed to use some of the communication methods she had requested.
38. It is clear Ms C wanted more information and evidence about the provision X was receiving in school, and she was not satisfied with the level of information the school provided. Generally, I cannot consider such issues as these relates to internal school matters and how the school is run.
39. I therefore found, on balance, the majority of the provision in X’s EHC plan was in place and available to X up to the end of the 2023/2024 academic year.
40. However, some provision was not available to X, Ms C or staff at the school. This included:
• some tools and guidance the SLT had to assess and develop including a communications programme. This was due to a misunderstanding or lack of involvement from the SLT. This therefore meant some specific methods and related tools were not available for X until late in the academic year;
• Multi-disciplinary meetings relating to X’s progress and the communications programme were to be held and likely to be led by the SLT. While meetings between Ms C and the school took place, and the two SLT’s had a meeting. No multi agency meetings were held relating to the intended purpose; and
• trainings for school staff and Ms C in various areas to support X with his specific needs. This was some training provided during the year this included a visit in May 2024 in where Ms C and X was shows specific techniques, staff training was delivered in September 2024, and training for Ms C training was delivered in October 2024.
41. While this was largely outside the Council’s control, it remained responsible for ensuring X received all the provision he was entitled to, even though it had delegated this to the school and commissioned the SLT support. I therefore found it caused a service failure.
42. I acknowledge the school supported X the best way it felt it could, and X received his education and the majority of the special educational needs provision he was entitled to. However, the school staff and Ms C therefore did not have the all the specific training, guidance, and tools they should have received from the SLT and the training. I would expect for this to have been completed within three months of the EHC plan being issued. There was therefore a delay between 3 to 7 months before this was in place.
43. I cannot say what impact this had on X’s learning and development, but I am satisfied this caused X a limited loss of special educational needs provision. This also caused Ms C distress due to the uncertainty over whether X was supported as well as he should have been, and she had to chase for the provision to be delivered.

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Agreed action

44. To remedy the injustice the Council caused to Ms C, the Council should, within one month of the final decision:
1. apologise in writing to Ms C to acknowledge the injustice its service failure caused her and X;

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

2. pay Ms C a symbolic payment of £200 to acknowledge the distress and uncertainty she experienced; and
3. pay Ms C a further symbolic payment of £300 to acknowledge the limited loss of special educational needs provision X experienced or had access to during the Spring and Summer term in the 2023/2024 academic year.

In total the Council should pay Ms C £500.

45. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its SEND staff of the Council’s duty to provide all the special educational needs provision set out in a child, or young persons, Education, Health, and Care plans without delay. This includes circumstances where it has delegated or commissioned this to be delivered by other professionals.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. I found the Council caused a service failure and Ms C and X experienced injustice as a result. The Council will apologise and make payment to acknowledge the impact this had on them.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman