Summary: The Council was at fault because it failed to ensure Y received all the special educational provision in his Education, Health and Care Plan between September 2023 and July 2024. This caused a loss of educational provision. The Council also failed to issue an amended Plan by the legal deadline. This caused his mother Ms X, avoidable frustration. The Council will apologise, take action described in this statement and make payments to reflect avoidable frustration and missed educational provision.

The complaint

1. Ms X complained the Council failed to secure special educational provision in her son Y’s Education, Health and Care (EHC) Plan. She said this caused a loss of educational provision and avoidable legal costs.

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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. 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)
4. 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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How I considered this complaint

5. I considered the complaint to us, the Council’s response and documents set out later in this statement.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

7. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections including F: special educational provision (SEP) and I: educational placement.

8. 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)
9. 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.
10. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. Key transfer phases include primary to secondary.

What happened

2023

11. Y has autism and other complex needs. He was in year six in September 2023 to July 2024 and is currently in year seven. He has an EHC Plan.
12. School A, an independent special school (an all-through school) is named in Section I as Y’s educational placement in Y’s EHC Plan of July 2023. The provision in Section F which Y did not receive during the last school year (September 2023 to July 2024) was:
• 20-30 minutes a week of language link provided by a specialist teaching assistant (TA)
• 20-30 minutes a week of narrative frameworks by a specialist TA
• 3 x 40 minute sessions a week of literacy support
• 20 minutes a week of emotional support by a TA or Emotional Literacy Support Assistant (ELSA)
• 45 minutes a week of cognitive behavioural therapy programme by a TA or ELSA. Review after 10 weeks.
• 30 minutes a week of support using the Zones of Regulation approach by a TA.
13. During summer 2023, School A and the Council corresponded by email over the cost of providing Y’s placement and provision in Section F. School A wanted more funding, but the Council said full-time individual support was not set out in Section F. School A maintained it needed more funding than the Council said. The Council wrote to School A formally directing it to admit Y. The issue of funding remained unresolved.
14. Ms X issued proceedings in the SEND Tribunal in August 2023. She told us she had been advised (wrongly) by her legal representative that the Tribunal could decide on funding issues.
15. In December, School A held an emergency annual review meeting. The Council was invited but declined to attend. The record of the meeting set out the provision in Section F that School A was not delivering (see paragraph 12).
16. School sent the Council the written record of the meeting.

2024

17. The deadline for Y’s phase transfer EHC Plan was 15 February. The Council did not issue an amended Plan by the deadline.
18. Ms X told us the Council informed her in May that School A would be named for Y’s transfer to secondary school in September. The Council issued a further final Plan the following month naming School A.
19. The SEND Tribunal issued a consent order. This said the parties had settled a dispute about Sections B, F and I. The order said the Tribunal had no jurisdiction regarding the dispute about funding. The Tribunal made no order as to costs.
20. Ms X complained to the Council about the issues she has raised with us and about other issues. The Council responded in June saying:
• It acknowledged School A had not fully delivered all the provision in Y’s EHC Plan;
• It was sorry she had been drawn into funding issues;
• The SEND case officer did not attend the emergency annual review meeting in December 2023 because there was a tribunal in process and so the Council could not amend a further version of Y’s EHC Plan;
• It was sorry for the delay in informing her about Y’s secondary placement; and
• It will arrange a meeting with School A to discuss delivery of provision. It accepted the Council was responsible for ensuring provision was delivered.
21. The Council told us:
• As the Council is clear School A will not deliver the outstanding provision, regardless of the Council’s view that they are already being funded for this, the SEND Team will contact School A to indicate the Council will fund three hours per week at the agreed speech and language assistant rate until the next annual review. This will enable all provision to be delivered.
• As Y has made significant progress without this element of his EHC plan provision, the impact on Y because of the delayed start is minimal.

Findings

22. The Council has a duty to secure all the SEP in Y’s EHC Plan from the point the final plan is issued. Ms X should not have been drawn into funding disputes. The courts have made it clear the duty is absolute and non-delegable. We accept councils cannot keep a close watch over delivery, but we expect them to make sure provision is in place when a concern is raised. The Council was aware from the minutes of the emergency annual review in December 2023 (and earlier because of correspondence with School A in summer 2023) that School A was not delivering all the provision. The Council has not demonstrated proper oversight or taken action to secure all provision which is fault. As a result, Y has not been receiving the full provision in his EHC Plan.
23. Y’s phase transfer EHC Plan should have been issued no later than 15 February. It was delayed by four months, which was fault causing avoidable uncertainty about Y’s educational placement from September 2024. This did not affect Ms X’s appeal rights though, because there was already an SEND appeal underway where the issues arising from the annual review were, or could reasonably have been included in the appeal.
24. There was nothing preventing the Council’s SEND Team from attending Y’s emergency annual review meeting in December 2023. The lack of attendance by a SEND officer was a missed opportunity to resolve the issues that ended up forming the basis of Ms X’s complaint.
25. Ms X has asked for us to consider recommending reimbursement of her legal costs. She says the Council should have told her sooner that the SEND Tribunal had no jurisdiction to resolve funding issues. I have not recommended reimbursement, because:
• The proceedings were also about the content of Sections B and F (which the Tribunal has powers to determine), not just about funding (which it does not have powers to resolve).
• The poor legal advice Ms X received is resolved by her taking this up with the legal representative.
• The Tribunal had powers to award costs and did not do so.

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Agreed action

26. The Council will, within one month of my final decision:
1. Apologise to Ms X for her avoidable uncertainty and make her a symbolic payment of £200. 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. Make a payment of £2700 to reflect Y’s lost SEP between September 2023 and July 2024. This is the lowest end of our suggested range because Y was receiving most of the provision in Section F; and
3. Ensure Y is receiving all the provision in Section F of his EHC Plan.
27. The Council should provide us with evidence it has complied with the actions in the last paragraph.

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Final decision

28. The Council was at fault because it failed to ensure Y received all the special educational provision in his Education, Health and Care Plan between September 2023 and July 2024. This caused a loss of educational provision. The Council also failed to issue an amended Plan by the legal deadline. This caused his mother Ms X, avoidable frustration. The Council will apologise, take action described in this statement and make payments to reflect avoidable frustration and missed educational provision.
29. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman