Summary: Ms X complained that her child, Z, did not receive the support they needed from a key adult while in school, despite this being a requirement of their Education, Health and Care Plan. The Council failed to arrange this provision and Z missed out on key adult support over several terms. The Council also delayed reviewing and finalising Z’s Education, Health and Care Plans and delayed responding to Ms X’s complaints. In recognition of the injustice caused by these faults, the Council has agreed to apologise, pay Ms X £1,610 and carry out service improvements.

The complaint

1. Ms X complained that her child, Z, did not receive the provision in their Education, Health and Care Plan. Ms X said as a result of this fault, her child has been caused avoidable distress around school and has missed out on additional support she should have received.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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)
9. 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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What I have and have not investigated

10. Ms X first became aware that Z’s support from a key adult was not in place in February 2024. At that time she learned the provision had not been in place since September 2022.
11. I have considered the loss of provision during this whole period, as Ms X could not have complained to us earlier due to not being aware. I am also satisfied that the Council has had notice of the complaint covering this entire period and has investigated and replied.
12. My investigation ends with the date of the Council’s final complaint response dated 30 July 2024. Ms X has complained that since the end of my investigation period, on 30 July 2024, the Council has continued not to properly fund or arrange Z’s key adult provision.
13. I have not investigated any lack of provision, including any reasons for this, beyond 30 July 2024, as the issues in this case have developed and changed since that time. Concerns about events after this date would need to be raised as a new complaint.

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How I considered this complaint

14. I considered evidence provided by Ms X and Council as well as relevant law, policy and guidance.
15. Ms X and the Council are given the opportunity to comment on my draft decision and all comments are considered before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans

16. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
17. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
18. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC Plans must be reviewed as a minimum every 12 months (para 9.166);
• the school or council must prepare and send a report of the review meeting to all invitees setting out the recommendations on any amendments to the EHC Plan, and referring to any difference of views between the educational setting and other attendees, within two weeks of the review meeting (para 9.176);
• within four weeks of the review meeting the council must decide whether it proposed to keep the EHC Plan as it is, amend the Plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the Plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the Plan, councils must send the child’s parent or the young person a copy of the existing Plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195);
19. Within twelve weeks of the annual review meeting, the final, amended EHC Plan must be issued. R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)

SEND Tribunal

20. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
21. We cannot direct changes to the sections about education or name a different educational setting. Only the SEND Tribunal can do that.

Arranging provision

22. Councils are responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
23. 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)  
24. 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. 

North Northamptonshire Council’s complaints procedure

25. The Council says it will investigate complaints made under its corporate complaints procedure within:
• 10 working days at stage one; and
• 20 working days at stage two (final stage).

What happened

26. From September 2022, Ms X’s child, Z, started attending a mainstream school, School A. Prior to this, Z had missed a period of schooling due to their mental health issues.
27. Z had an EHC Plan which set out, in Section F, several forms of support they should access in school to assist them with emotional regulation and to reduce the likelihood of their anxiety worsening.
28. This additional provision included support from a key adult within the school, that would get to know Z well and provide subtle support to them, including discreetly monitoring their emotional presentation. The key adult would also provide Z with support and opportunities to reflect and regulate, including at the end of each school day.
29. After Z began attending School A, the first annual review of their EHC Plan was held in March 2023. Ms X said she was pleased with the progress Z was making at the school, as Z was doing well academically and had made friendships. However Ms X said she was concerned Z was ‘masking’ at school, as they were becoming increasingly exhausted, hypervigilant and overwhelmed when at home.
30. During the March annual review the Council checked whether Z’s section F provision was in place and how Z was progressing against the outcomes in their Plan. It noted Z was making progress in several areas and not in others. Regarding the key adult, it noted Z had access to a learning support assistant who was shared between Z and some other pupils. However it noted Z was struggling to ask for help and did not want to appear different to their other classmates.
31. The Council noted in the annual review paperwork that it thought it should maintain Z’s EHC Plan. However the Council then did not progress the annual review and it did not send a formal decision to maintain the Plan.
32. After Z had been attending School A for one year, Z experienced a mental health crisis and stopped attending school for three months. Z returned to school on a phased return which took place in January and February 2024.
33. Z’s EHC Plan was reviewed again in March 2024 and Ms X attended the meeting. The review notes said the key adult provision within Z’s EHC Plan had begun to be put in place, in the interim, through the school’s pastoral officer. However the school said it would apply for funding for a key adult for Z more long-term as this had not been in place before, only a learning assistant shared between Z and other classmates.
34. Ms X complained to the Council about this lack of provision since September 2022. The Council responded more than five weeks later. It said the funding was not provided because School A never invoiced the Council for it. However it said the funding was now in place. It said School A had arranged the provision regardless and Z had not missed out on any of the additional support in their Plan.
35. Ms X was unhappy with this reply and asked for her complaint to be considered at stage two of the complaints procedure. The Council responded eight weeks later. It said:
• The reason for its delay in responding to her complaint was due to the previous officer not having progressed her case; and
• The Council had been informed that the key adult provision was now in place for Z.
36. Ms X complained to the Ombudsman in September 2024. She said Z continued not to have a key adult in all their lessons.

My findings

Failure to arrange key adult provision

37. Between September 2022 and the end of my complaint investigation in late July 2024, Z should have had access to daily support from a key adult to help manage their mental health in school. This should have included opportunities at the end of each school day for Z to reflect and decompress with their key adult and for Z’s emotional state to be discreetly monitored while in class by their key adult. Instead during that period, Z only had access to a shared learning assistant or support from the school’s pastoral officer who ‘acted’ as Z’s key adult, while the school applied for funding for a dedicated professional.
38. While we acknowledge it is not practical for councils to keep a ‘watching brief’ on a school’s delivery of all special educational provision, the Council should at least have checked the provision was in place through its annual review process. The Council did this and was aware from its March 2023 annual review that the key adult provision was not in place. Instead it noted Z only had access to a shared teaching assistant and that they were uncomfortable asking them for help.
39. The Council should have taken action to ensure Z was receiving the support from their key adult when it first became aware in March 2023. Instead between March 2023 and July 2024, Z received either none of, or only a partial amount of, their key adult provision. The Council’s duty to arrange this support for Z was non-delegable and the Council was at fault. This fault caused Z to avoidably miss out on additional support they should have received over several terms. This fault also caused distress and frustration to Ms X.

Annual reviews and EHC Plans

40. The Council held an annual review meeting to review Z’s EHC Plan in March 2023. However it failed to issue a decision or take any further action following this review, which was fault.

Complaint handling

41. The Council significantly delayed responding to Ms X’s complaints at both stages of its complaints process and this was fault. This fault caused Ms X avoidable distress and frustration.

Recent service improvements at North Northamptonshire Council

42. The Ombudsman found fault with this Council in several cases last year for its delays in reviewing and finalising EHC Plans. Following these investigations, the Council took steps to improve its timeliness in this area. These service improvements would not yet have taken effect during this complaint period and so I have not repeated them below.

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Action

43. Within one month of the date of the final decision, the Council has agreed to:
1. apologise to Ms X and to Z for the injustice caused by the faults in this case;
2. pay Ms X £1,360 to reflect the key adult provision that Z avoidably missed over several terms between March 2023 and July 2024; and
3. pay Ms X £250 to reflect the frustration and distress she has been caused by the Council’s faults in this case.
44. Within three months of the date of the final decision, the Council has agreed to:
1. Remind its officers that the duty to arrange the provision in section F of EHC Plans is non-delegable and the council remains responsible;
2. Remind its officers that annual reviews are a key opportunity for the Council to check that special educational provision from EHC Plans is in place and if it learns this is not being delivered, it should act promptly to arrange the provision; and
3. Investigate what led to the delays in complaint handling in this case and outline action it has taken to prevent these delays in future.
45. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
46. The Council has agreed to provide us with evidence it has complied with the above actions.

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Decision

47. I find fault causing injustice and the Council has agreed to take action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman