Summary: The Council was at fault for failing to deliver part of Y’s special educational needs support for a period of more than a school term. It should offer him a symbolic financial remedy to recognise his likely injustice.

The complaint

1. The complainant, whom I refer to as Ms X, complains about how the Council delivered support for her son’s special educational needs. I refer to her son as Y.
2. Ms X says:
• Y’s school failed to deliver part of his support even though the Council had given it the extra funding.
• The Council, in its response to her complaint, said the school had put the right support in place. But it did not say when.
• The support was, in fact, not put in place until July 2024 – five months after it was supposed to start, and only two weeks before Y left the school.
3. Ms X says Y lost 80 hours of support, which affected his relationships with his peers and caused him distress. She wants the Council to now pay his new school to deliver these hours as extra support.

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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. If we are satisfied with a council’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)
6. 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

7. I considered:
• Information from Ms X and the Council.
• The ‘Special educational needs and disability (SEND) code of practice’.
• Our remedies guidance.
8. 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

The SEND code of practice

9. A child with special educational needs may have an education, health and care (EHC) plan. This document sets out their needs and what arrangements should be made to meet them.
10. The EHC plan is set out in sections, including section F (the provision needed by the child).
11. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. This provision should be in place as soon as the final EHC plan is issued.

What happened

12. In mid-February 2024, the Council issued an amended EHC plan for Y. This said that Y would receive – among other things – “Lunch arrangements supported by lunch clubs in small groups … with [teaching assistant] to develop social interaction skills / friendships, 60 minutes daily”.
13. In May, Ms X complained to the Council. She said Y’s school was not delivering his lunchtime support.
14. The Council responded in June. It said Y’s school had offered him lunchtime ‘Spanish club’ – a small group with high levels of adult support – twice a week, but he had declined it. It said that, as a result, the school was recruiting for extra lunchtime support.
15. Ms X remained unhappy. She complained again, saying:
• ‘Spanish club’ was not suitable for Y because he speaks Spanish fluently. The lunchtime support was meant to develop his social interaction skills and friendships, not to teach him basic Spanish.
• The school had offered a different – more suitable – kind of lunch club to Ms X in April, but she had heard nothing about this since.
• The school had advertised for a new member of staff to help Y at lunchtimes, which demonstrated that it knew he needed more support.
16. In early July, Ms X says the school began putting the right support in place for Y.
17. The Council then responded to Ms X’s complaint. It set out a range of support available to Y (both at lunchtimes and otherwise) and said this satisfied the requirements of his EHC plan. It did not say when this extra support had started.
     

My findings

18. Councils have the duty to begin delivering section F provision as soon as an EHC plan is issued.
19. The Council’s complaint response in June said the only lunchtime support on offer to Y was the Spanish classes – which Ms X felt were unsuitable. In any event, these were only two days a week. The Council also confirmed that the school intended to increase Y’s support (by hiring someone to deliver it).
20. The Council’s second complaint response, in July, describes a much more comprehensive offer of support to Y.
21. These complaint responses, when taken together, back up Ms X’s complaint – which was that the school’s full package of support only became available to Y between the two responses. Ms X says this was in early July. I have seen no reason to doubt that this was the case.
22. As Y’s support (as described in his EHC plan) should have been available to him from the date the plan was issued (in February), and was not, I have found that the Council was at fault.
23. Ms X wants the Council to now pay for Y’s new school to deliver the missed provision. I have considered this, but I have decided it would not be appropriate. This is because:
• Although Ms X believes the Spanish classes on offer to Y were unsuitable – and I can understand why, given Y’s fluency in Spanish – I cannot say they would have had no benefit to his social interaction or his development of friendships (which his school thought they would). I accept that these classes were only available two days a week. But, had Y engaged with them, this may have mitigated his injustice to some degree.
• Y’s new school will now be delivering the support Y needs. It is not clear that the delivery of additional support – over and above what is specified in his EHC plan – would be the most suitable way to resolve his injustice. Certainly, I cannot decide whether or not this would be the case.
• Our remedies are not intended to be punitive, so we do not generally recommend councils ‘pay out’ the full costs of any missed provision. When we award financial remedies, these tend to be symbolic, unless there has been a quantifiable financial loss.
24. Consequently, the most suitable way to resolve Y’s injustice is for the Council to pay him a symbolic financial remedy in line with our guidance.

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Agreed action

25. Within a month, the Council has agreed to make a payment of £400 to Ms X, on Y’s behalf, to recognise that its failure to deliver part of his special educational needs support for more than a school term likely caused him an injustice.
26. The Council will provide us with evidence it has made this payment.

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Final decision

27. The Council was at fault.

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Investigator's decision on behalf of the Ombudsman