Summary: Mrs X complained that the Council failed to secure the provision set out in her son’s Education and Health Care Plan. We found fault by the Council which caused Mrs X’s son to miss some Special Educational Needs provision. It also caused avoidable distress for Mrs X. The Council has agreed to apologise and pay a financial remedy. It has also agreed to review the adequacy of the funding arrangements in place and inform Mrs X of its decision.

The complaint

1. Mrs X complains that the Council has failed to secure the 1:1 provision set out in her son’s Education Health and Care Plan. She says he has been on a part-time timetable because 1:1 provision has not been funded by the Council. As a result, he has not accessed some subjects, including science. Mrs X also complains about poor communication by the Council.

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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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when a school is acting on behalf of a council to secure educational provision, as set out in Section F of an Education, Health and Care Plan.
4. 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)
5. 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

6. I considered the information provided by Mrs X and discussed the complaint with her. I made enquiries of the Council and considered its response.
7. Mrs 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

Education, Health and Care (EHC) Plans

8. A child or young person with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

10. 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)

EHC Plan reviews

11. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
12. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
13. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
14. The Council must then issue any final amended EHC Plan within eight weeks of the notice of proposed amendments. (R (L, M and P) v Devon County Council [2022]). Therefore, it must issue a final Plan within twelve weeks of the review meeting.

The Council’s Annex R Guidance for Schools

15. The Council has a statutory duty to provide full-time education for children with EHC Plans. However, in exceptional circumstances, there may be a need for a temporary reduced timetable to meet a pupil’s individual needs. The Guidance states that, if a school is considering a reduced timetable for a pupil with a Plan, it must consult the Council and invite it to an interim review or early annual review at the earliest opportunity. Any decision to implement a reduced timetable must be in consultation and agreement with the child’s parents/carers and should demonstrate a clear benefit to the child, with a carefully planned transition to a full-time timetable.
16. The guidance states that:
• a reduced timetable should be in place for no longer than six weeks;
• all professionals involved should be consulted and support the reduced timetable before it starts;
• the SEND team must agree to a reduced timetable for children with SEN who have an EHC Plan;
• a clear action plan for improving education and addressing any identified issues for the child must be in place; and
• the Council’s Education Inclusion Team must be notified of any pupil on a reduced timetable.

What happened

17. This section sets out the key events in this case and is not intended to be a detailed chronology.
18. Mrs X’s son, Y, has SEN. He has an EHC Plan and attends a specialist school with specialist trained staff.
19. In November 2023 Mrs X attended a meeting with the school where it was agreed that Y would be put on a reduced timetable temporarily.
20. Following an annual review of Y’s EHC Plan on 10 January 2024, the Council informed Mrs X of its decision to amend the Plan to include 1:1 provision to reflect Y’s needs.
21. On 18 March the Council issued a proposed amended EHC Plan.
22. On 2 May the School responded to the draft amended Plan. It said 1:1 support was mentioned throughout the Plan but the funding allocated for Y only equated to 11 hours per week of teaching assistant (TA) support. The School said this was inadequate and it could not meet Y’s needs with that level of funding. It said Y needed someone with him all day across the week and his funding needs should be equivalent of the salary of a full-time TA.
23. The School told the Council the cost of a full-time TA to support Y would be £23,000 in addition to the funding for the place at the School. It said that, without this funding, it could not meet Y’s needs nor the provision set out in his EHC Plan.
24. The Council confirmed it had agreed to fund a 1:1 TA for Y as this need was set out in his Plan. It explained that the School had requested a 1:1 TA for 52 weeks, but it only provided funding during term-time which was 38 weeks. The Council said it currently paid £20659 for a full-time TA. It said it was happy to arrange a meeting to discuss the funding further if required.
25. The Council told the School it would issue the final Plan and funding arrangements could be discussed outside of the statutory process.
26. On 10 May the Council issued a final amended EHC Plan which included 1:1 support throughout Section F. Some areas indicated a longer-term goal of group work, but this was not the baseline of the provision detailed.
27. On 14 May Mrs X contacted the Council saying the School was not providing 1:1 support because of a lack of funding. She explained that Y was settled at the School but was on a reduced timetable and needed to be in full-time education. She said he was legally entitled to a full-time education that followed his EHC Plan.
28. The next day the School told the Council it could not provide full-time 1:1 support with the funding provided so it could not meet Y’s needs.
29. On 29 May the Council confirmed that further discussions were taking place with the School regarding its request for additional funding. The Council apologised to Mrs X for the lack of timely communication and said additional staff had been recruited to mitigate the impact of increased workloads.
30. On 25 June Mrs X asked the Council to contact her as a matter of urgency. Three days later, she chased the Council for a response, stating the School was not following the EHC Plan. The Council responded saying discussions with the School were still ongoing and no further information was available.
31. On 16 July Mrs X complained to the Council. She said it was refusing to provide funding to the School to employ a 1:1 TA. She said Y was entitled to a full-time education which met his needs and his EHC Plan. She said the Council could not use financial excuses for not following a child’s Plan. 
32. On 19 August the Council responded to Mrs X’s complaint. It said discussions with the School about funding were still ongoing. It stated, “in very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s needs, and there will be occasions when it is appropriate for schools and families to consider and agree a temporary reduction in a pupil’s timetable.”
33. Mrs X remained unsatisfied and complained to the Ombudsman. She said Y was on a reduced timetable not because he could not attend school but because the 1:1 was not being funded by the Council. Y attended school from 09:30 to 13:00 and 09:30 to 14:00 rather than 09:00 to 15:00.
34. Mrs X also provided details of Y’s attendance between 1 May and 19 July 2024 which showed his attendance was at 81.74%. Authorised absence was recorded at 12.50% and unauthorised absence at 5.77%.

The Council’s response to our enquiries

35. The Council said:

• it told the School they would receive top-up funding of £20,659 to support the 1:1 provision in the EHC Plan;
• the costings requested by the School were incorrect as the Council only provided funding for 38 weeks term time, not the 52 weeks requested;
• it has funded the School with the same amount as all schools receive for 1:1 provision since 2 May;
• the School had not provided details of the provision Y had received since May 2024;
• the School marked Y’s absences as unauthorised and did not communicate that he was on a reduced timetable. There was no Annex R put in place by the School; and
• it has continued to provide the funding to the School for the provision set out in Y’s EHC Plan.

Analysis

Annual review

36. We can look at delays in the EHC Plan review process. We expect councils to follow statutory timescales. We are likely to find fault where there are significant breaches of those timescales.
37. I find the Council is at fault for failing to adhere to the statutory timescales for the EHC Plan process. It should have finalised Y’s EHC Plan by 3 April 2024, which was 12 weeks after the annual review. However, it took the Council a further five weeks to do so.
38. I am satisfied Mrs X experienced distress because of the uncertainty this caused.

EHC Plan provision

39. I have investigated this aspect of Mrs X’s complaint from 10 May 2024, when the Council issued the final amended Plan, until 19 August, when the Council issued its final complaint response. However, it should be noted the academic year ended on 19 July.
40. The EHC Plan sets out the special educational provision Y must receive. This includes 1:1 support throughout the school day. The Council had a duty to ensure this provision was in place under section 42 of the Children and Families Act.
41. 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 provision is not in place at any time.

42. The evidence shows the Council was aware of the School’s concerns that it could not deliver the 1:1 SEN provision set out in the Plan due to inadequate funding in early May 2024. The Council became aware that Y was on a reduced timetable when Mrs X informed the Council of this in May. It is therefore not correct for the Council to state it was not aware Y was not receiving full-time 1:1 provision. It should have taken steps to ensure the EHC Plan provision was in place, or considered how far it was possible to do so given its ongoing discussions with the School about the funding arrangements.
43. The evidence shows the Council was in discussions with the School about the funding but failed to decide whether the level of funding was adequate to meet Y’s SEN needs. In its response to Mrs X’s complaint in August 2024, the Council said discussions around funding were ongoing. The delay in reaching a decision is fault and caused Mrs X uncertainty and distress.
44. The Council accepts it does not know what provision Y received during this period. This shows it had no proper oversight of Y’s education. It failed to take steps to assure itself suitable education was in place when Mrs X raised concerns. This meant Y was without full-time 1:1 provision between 10 May and 19 July 2024 to the Council’s knowledge.
45. Though, it is clear Y missed some provision his attendance during the period was at 81.74%. However, there was still a loss of provision and Y was unable to engage in full-time education for 1 to 1.5 hours per day for eight weeks. This equates to approximately half a term of missed provision.

Communication

46. Mrs X also complained about poor communication by the Council. I have not seen any significant delays in responding to Mrs X during the period in question. However, I am concerned that the Council failed to clearly communicate with Mrs X about the funding arrangements, nor did it provide any timescales about when a decision would be reached. It merely told Mrs X that discussions with the School were ongoing. This is fault and added to Mrs X’s distress.

Remedy

47. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
48. In deciding a suitable financial payment to recognise the impact of Y’s missed SEN provision, I considered the following:
• Y’s EHC Plan identified 1:1 provision to support Key Stage 4 learning. Y was in his first year of this curriculum and we consider this to be a significant period in a child’s school career, but it is not a public examination year;
• Y’s school attendance was over 80% so he still received a significant education and SEN provision; and
• according to Y’s EHC Plan the provision missed was not significant hours of direct therapies or interventions, such as Occupational Therapy or Speech and Language Therapy.
49. Based on this, I consider the Council should pay a remedy of £450 for missed SEN provision. The Council should also provide a remedy for the distress caused to Mrs X by its failure to deliver Y’s SEN support and the delay in completing the annual review.

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Agreed action

50. The Council has agreed that, within one month, it will:
1. apologise for the faults identified and the impact of those faults on the family;
2. pay the family a total of £750 comprising of:
1. £450 in recognition of the missed SEN provision;
2. £300 in recognition of the avoidable distress, time, and trouble caused to Mrs X by the Council’s failings; and
3. review the funding arrangements in place and decide whether they are adequate to meet Y’s SEN needs as set out in his EHC Plan. The Council should write to Mrs X with its decision.

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

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Final decision

52. I find fault causing injustice.
53. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman