Summary: Ms B complained that the Council has failed to implement the provision in her child’s Education, Health and Care plan. We did not find the Council to be at fault.

The complaint

1. Ms B complains the Council failed to provide one to one support at school, as required by her child’s Education, Health and Care (EHC) plan. She says as a result of this her child has struggled at school. Ms B says her child’s mental health has deteriorated and this has impacted all of the family.

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The Ombudsman’s role and powers

2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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)

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How I considered this complaint

4. I considered evidence provided by Ms B and the Council as well as relevant law, policy and guidance.
5. Ms B and the Council have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

The law and guidance

6. 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. The EHC Plan is set out in sections. 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. 
7. 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)  
8. 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

9. Ms B’s child, A, has an EHC plan in place since October 2023.
10. The plan includes that A will be provided with a sensory intervention to support them in identifying experiences that are calming and stimulating, and to help manage their sensory responses to experiences they find difficult. Working initially 1:1 but building to working in a small group.
11. Under the ‘how often’ column for this provision, the EHC plan says once a day, for five minutes. The session length increasing in response to the child’s capacity to maintain concentration.
12. In April 2024, Ms B complained the Council had not provided the school with funding to ensure all of the provision in the EHC plan could be implemented.
13. The Council has provided a personalised plan for A which shows the provision was all to be in place from September 2023.
14. I have also seen evidence the Council agreed to provide funds from the High Needs funding allocation above the allocated SEND funding as this had been used by the school.
15. It appears there is a misunderstanding as to the extent of 1:1 support the plan includes. The plan does not say A will receive full time 1:1 support. If Ms B is unhappy with the provision in the EHC plan, that is appealable to the Tribunal.
16. On this basis, I am satisfied there is no fault in the Council’s provision for A.

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Decision

17. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman