Summary: Mr Y complained on behalf of Miss X that the Council failed to ensure the provision in Miss X’s daughter’s education, health and care plan was in place. Mr Y also said the Council’s complaints response failed to incorporate the evidence Miss X provided. We find the Council did fail to properly consider some of the evidence provided by Miss X. This caused uncertainty to Miss X and her daughter. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mr Y, complains on behalf of Miss X. He complains about the Council’s failure to ensure the provision in Miss X’s daughter education, health and care (EHC) plan is in place. Mr Y also said the Council’s complaints response failed to incorporate the evidence Miss X provided.
2. Mr Y said this has caused Miss X and her daughter significant distress.

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The Ombudsman’s role and powers

3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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

6. I considered evidence provided by Mr Y and the Council as well as relevant law, policy and guidance.
7. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

EHC Plan

8. 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. 

Maintaining the EHC Plan

9. 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)  
10. 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. 

Summary of the key events

11. Miss X’s daughter, B, has an EHC Plan. This was finalised in February 2023 following the Council conceding prior to tribunal. It named B’s current primary school with a phase transfer to the new high school. Some of the provisions in the plan were:
• B will be prepared for any changes in advance (part 1);
• B is to build positive and trusting relationships with the key adults working with her. To accommodate staff absence, is important that these relationships are established with more than one staff member; (part 2);
• B will have 1:1 adult support from her consistent, familiar and trusted allocated adult in all lessons (part 3);
• B will have a protected designated safe place- her allocated room where she can go (if needed) during break and lunch times, or during periods of increased emotional arousal (part 4);
• B will have access to her phone and the school phone to call Miss X when she feels the need to; (part 5);
• a care plan will be in place in order to ensure B remains safe in school. This is to be reviewed half termly with Miss X. staff members will be aware of B’s health care plan and sufficiently trained. There will be both a clear written health care and a learning support plan involving B, Miss X and the school (part 6 and 9);
• a personalised individual visual timetable will be provided directly to B (part 7);
• visual stress testing will take place termly. B will have the use of an overlay in line with her assessed colour (part 8);
• one to one or small group emotional literacy programme (part 10);
• the educational setting will keep visual records of B’s academic progress that can be easily referred to and sent home for additional discussion (part 11);
• B will receive pre-teaching and over-learning of subject related vocabulary that will be followed up with repetition, recapping and the allowance of extra-time to support her memory processing difficulties. Adults will check and re-check B’s understanding of a task (part 12); and
• B is more likely to feel overwhelmed by her anxiety at times of additional pressure and demands e.g. tests. These will be presented carefully with her allocated 1:1 providing emotional support. B will receive the appropriate access arrangements, including extra time, rest-breaks and a reader (part 13).
12. At the start of September 2023, Mr Y contacted the Council. He said he had concerns with the timetable provided by the school. He said this was not personalised or visual as per provision in the EHC Plan.
13. Following the Council asking the school what arrangements were in place for B’s start, the school said:
• B could meet her TA in reception when she starts;
• the TA was due to complete her first aid training that week;
• B’s care plan was available to all staff and asked whether it needed updating; and
• the TA could support B to call Miss X if needed.
14. Towards the end of September 2023, Miss X asked for a meeting as she said the provision was not in place. It was noted that Miss X had completed a personalised timetable which the school asked if they could use as a template for B.
15. A meeting was held in November 2023 with the school and council. Miss X said the provisions discussed were either not in place or inconsistent. The school agreed to several actions in relation to the provision detailed in B’s EHC Plan.
16. Following the meeting, Mr Y told the Council the visual stress testing provision had never happened. He said Miss X had secured this and asked for reimbursement. The Council asked for the invoice to be sent to it.
17. There are several emails between Miss X and the school in January 2024 which the Council are copied into. Miss X said there had been an incident where B was not prepared for a change as per the plan. But the school stated it was a last-minute change. Miss X also said the TA did not meet B as planned. The school also said they had previously informed the Council they did not think they could meet B’s needs or the provision.
18. The school requested a meeting with the Council to discuss the provision.
19. In March 2023, Miss X told the Council there were two upcoming days where B could not attend school. This was because both of her TA’s were off on planned training days. Miss X confirmed the school had sent work home.
20. An annual review was held in April 2024. The notes state some amendments were requested to the provision.
21. Miss X contacted the Council in May 2024. She said:
• she had not received a refund from the Council for the visual stress assessment she paid for;
• she was repeatedly having to raise issues around the second TA being removed from the timetable, despite B needing to get to know them;
• there had been repeated issues being raised by the school around B’s mobile phone use; and
• she said the school continued to struggle to implement the EHC Plan and asked for list of alternative provision settings.
22. In the same month, the Council agreed to reimburse Miss X for the visual stress assessment.
23. There were discussions in July and August 2024 between Miss X and the Council about proposed amendments to the EHC Plan. The Council asked to arrange a meeting with school to discuss the provision in place.
24. A draft EHC Plan was issued in August 2024 and finalised in November 2024.

Complaint to the Council

25. Miss X complained towards the end of September 2023. She said:
• B had transferred to high school in September and a transition plan was in place via the tribunal;
• the full plan was not in place and the EHC Plan was not being followed; and
• the school had said they could not put provision in place.
26. The Council responded at stage one of its complaint’s response. It said following the meeting held in November 2023, the school had recognised there were some areas which required additional input. It said this would be achieved in line with the actions of the meeting.
27. Mr Y and Miss X asked for the complaint to be escalated as they said provision was still not in place. They provided the relevant evidence.
28. The Council’s stage two response was issued in May 2024. It said:
• it partially upheld part 1. It said Miss X had given an example which failed to meet the EHC Plan requirement. But it said there has been improvements in provision and the 1:1 goes through the day with B each morning. It said outside organisations view the provision to be supportive and organised;
• it partially upheld part 2. During the early part of the second term there were examples provided by Miss X where she felt B could not attend school due to a change in TA. When the TA was not available the school’s process was to use a team of four TA’s so there was always cover. But it said Miss X declined this approach as it would be too much for B. The Council said the issue of only two key TA’s was going to be a predictable problem going forward and Miss X and the school needed to reach a solution;
• it did not upheld part 3. B could not attend school for two days in March due to both TA’s being off. The school offered the only solutions it could. This was alternative learning from home or to attend school but without a known support staff member;
• it partially upheld part 4. B has an allocated seat in a quieter part of the school which has not been available on some occasions. B has therefore had to use an alternative seat. But it said effective use is being made of the area and the space is limited and must be used to best support all students;
• no judgement was made regarding part 5. Miss X said school said B’s mobile phone use was restricted to one part of the school and implied texting was not appropriate. The school said B was exempt from this policy;
• it did not uphold part 6. The school met with Miss X at the start of term to review the health care plan which should have been reviewed by the primary school in the summer term. It said the school implemented its system of informing staff of students SEND needs through its passport system. This is a system that has been quality assured by Ofsted;
• no judgement was made regarding part 7. The Council said this complaint was based on a disagreement between Miss X/Mr Y and the school on the interpretation of what constitutes a visual timetable. It said weekly timetable information was made available;
• it did not uphold part 8. The school said the TA carries the appropriate overlay. Due to the number of children with different needs, individual overlays are to be used with work. Neither the school or the Council have staff that could advise on the clinical needs for B’s assessment for the relevant coloured overlays or any other visual assistance technology. This would need to be assessed by a qualified clinician. This could have been accessed through the NHS at no cost to Miss X;
• it did not uphold part 9. The Council said the complaint was based on a disagreement on the implementation of a process which has been externally quality assured;
• it partially upheld part 10. It was agreed at the November 2023 meeting this would only start when B had built a suitable relationship with the adult involved and once Miss X deemed it to be suitable. The Council said there had been a delay integrating the adult, but said the programmes was available once Miss X was happy for B to undertake it;
• it did not uphold part 11. It said the school provided feedback on B’s work and said this was accessible to Miss X online;
• it did not uphold part 12. It said the complaint was based on a disagreement on the implementation of a process which has been externally quality assured; and
• it did not uphold part 13. It said the complaint was based on a disagreement on the implementation of a process which has been externally quality assured.
29. The Council recommended a meeting so an agreement could be reached on the key points of the complaint.

Analysis- was there fault by the Council causing injustice?

30. As stated in paragraph 10 it is not practical for councils to keep a watching brief on whether schools and others are providing the special educational provision in section F. The paragraph sets out what systems we would expect a council to have in place. It is down to councils to investigate concerns and satisfy itself the provision is secure. If there is no fault in how it reaches this decision, we cannot question the merits of its decision.
31. In September 2023, Miss X and Mr Y raised concerns about the timetable not being in line with the EHC Plan. The Council asked the school what arrangements were in place for B’s start and the school provided details.
32. The Council did initially check what was in place which is what we would expect. But it did not consider the issue around the timetable. This is fault. But the injustice is limited. This is because the Council went on to consider this as part of the complaint and could not make a judgement on it. As stated in paragraph 35, I have not found fault with how this decision was made.
33. There are several emails in January 2024 between the school and Miss X which the Council are copied into. In one of the emails, the school said they had previously told the Council they did not think they could meet B’s needs or the provision. They asked for a meeting to be held to discuss this. I have not seen evidence to suggest the Council responded to this. This is fault. It would have been up to the Council to consider the schools response. This caused uncertainty to Miss X.
34. As stated in paragraph 28, the Council considered Miss X’s complaint. In my view:
• the Council did properly consider Miss X’s evidence for part 1. It found the provision had previously failed to be in place. But said there had been improvements since. It was satisfied the provision was now in place. I do not consider there to be any fault in how this decision was made;
• paragraph 11 sets out what the provision was in regard to part 2. B had missed two days at school due to the TA being off sick. B had not been given the opportunity to build a relationship with another key adult. The Council did not properly consider the evidence provided by Miss X. This is fault;
• the Council did properly consider Miss X’s evidence for part 3. This provision was in place for the majority of the time apart from the instances described in paragraph 28. But the Councils view was the school offered the only options it could. I do not consider there to be any fault in how this decision was made;
• the Council did not properly consider Miss X’s evidence for part 4. It did not consider what was agreed at the meeting held in November 2023. This is fault;
• the Council did not properly consider Miss X’s evidence for part 5. It failed to consider the emails from the school suggesting they limit B’s phone usage to one space. This is fault; the Council did properly consider Miss X’s evidence for part 6. Whilst I acknowledge the school said the care plan should have been reviewed by the primary school in the summer term, we would not expect the Council to keep a watching brief of provision. We would only consider whether the Council checked whether provision was in place when there was a change in placement, which is did as it told the school in August that the care plan needed updating;
• the Council did properly consider Miss X’s evidence for part 7. Miss X said the timetable provided was black and white and not visual. But the Council made the decision the complaint was based on a disagreement over what constitutes a visual timetable and weekly timetable information was made available as per the EHC Plan. There is no fault in how this decision was made;
• the Council reimbursed Miss X for the private assessment she sourced. But it did not uphold part 8 of her complaint as it said the assessment could be accessed through the NHS. But the EHC Plan states a visual stress test would take place termly. I have not seen any evidence to suggest this was considered and Mr Y said Miss X has again been asked to fund a further private assessment. This is fault. We acknowledge that Miss X had been reimbursed for this. But we would remind the Council that as the provision is in section F of the plan, it has a duty to ensure this is secured;
• the Council did properly consider Miss X’s evidence for part 9 and I do not consider there to be any fault. It is not for the LGO to comment on teaching styles;
• the Council did properly consider Miss X’s evidence for part 10. It found there was a delay in integrating the TA. But said the provision could now be in place when Miss X is happy is undertake it. There is no fault in how this decision was made;
• the Council did properly consider Miss X’s evidence for part 9 and I do not consider there to be any fault. It is not for the LGO to comment on teaching styles;
• the Council did not properly consider the evidence provided by Miss X in relation to part 12 as there is nothing to suggest it considered what actions the school agreed to during the November 2023 meeting. This is fault; and
35. the Council did properly consider Miss X’s evidence for part 9 and I do not consider there to be any fault. It is not for the LGO to comment on teaching styles. For the above failures, I recommend a payment of £250 for the educational benefit of B. This is recognition of the uncertainty caused. If the Council had properly considered all the evidence provided, we could not say what the outcome would have been. I recommend a further uncertainty payment of £200 for Miss X.
36. Miss X raised further concerns in May 2024. She the school continued to struggle to implement the EHC Plan and asked for list of alternative provision settings. From the evidence seen, the Council asked the school for a meeting in July 2024 to discuss provision. But there is nothing further to support this meeting being held.
37. There was a delay in the Council considering the further issues raised and nothing to suggest the issues were considered again. This is fault. There is also no evidence to suggest the Council considered Miss X’s request for an alternative provision setting. This caused further uncertainty and distress to Miss X.

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Action

38. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Miss X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Miss X £200 in recognition of the uncertainty caused to her by the fault identified in this statement;
• pay Miss X £250 for the educational benefit of B. This is in recognition of the uncertainty caused to her by the fault identified in this statement;
• contact Miss X to discuss any outstanding concerns regarding provision. Any concerns will subsequently be explored with the school. The Council will write to Miss X with its response to each concern. If the provision is not in place, the Council will arrange for this to be in line with the EHC Plan.
39. Within two months the Council should remind relevant staff of its duty to quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. It should consider all the evidence provided.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman