Summary: Ms X complained that the Council had failed to provide specific funding for her son’s school in accordance with his Education, Health and Care Plan. We find the Council at fault causing a loss of educational provision for Ms X’s son and avoidable distress. The Council has agreed a symbolic payment to remedy this.

The complaint

1. Ms X complained that the Council failed to provide the funding to her son’s (Y’s) school (School B) between October 2022 and June 2024 for the provision of twenty-four hours per year to secure specialist support from a charity, with specific knowledge of her son’s difficulties. The Council originally said that it had provided this funding to School B. But the Council has now accepted that it had not provided the necessary funding.
2. Ms X considers that this error may have arisen because Y’s Education, Health and Care (EHC) Plan was not specific enough.
3. Ms X says that the delay in providing the twenty-four hours support to the school has meant that staff at the school had not been trained in how to manage Y’s specific difficulties, and in turn this caused avoidable distress to him and to the family.
4. Ms X says that now that this support is being provided, she has noticed a substantial difference in the school’s ability to help Y.

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The Ombudsman’s role and powers

5. 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’.
6. 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).
7. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
9. 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).
10. 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

11. I have looked at events from October 2022 to June 2024 when the Council started to provide the funding.
12. Ms X appealed Y’s EHC Plan. Part of that appeal was about the ‘wooliness’ of the EHC Plan which led to the confusion. But the complaint, which we are dealing with, is about the failure to make provision as set out in Y’s EHC Plan. So, I consider this is sufficiently separable from the Tribunal matters and does not prevent us looking at the complaint.

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How I considered this complaint

13. In August 2024, the Council accepted at stage two of its complaint procedures that it had delayed in making the required funding for twenty-four hours per year support from a specialist provider to Y’s school. Therefore, I have mainly looked at the injustice caused and whether the Council provided an appropriate remedy.
14. I considered evidence provided by Ms X and by the Council as well as relevant law, policy and guidance.

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What I found

Special educational needs

15. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
17. The Ombudsman cannot investigate complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
18. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. We consider that councils should be able to demonstrate due diligence in discharging this important legal duty by:
• checking the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• checking the provision at least annually via the review process; and
• investigating complaints or concerns that provision is not in place at any time.
19. Once a council has issued a final EHC plan and given the right of appeal, we cannot investigate matters that could have been appealed except in limited circumstances.

Key facts

20. Ms X’s son, Y, has a severe learning disability and visual impairment. He has medical, physical, speech and language difficulties and social, emotional and behavioural needs.
21. Y’s October 2022 EHC Plan said he was to have one-to-one teaching assistant support, speech and language therapy, occupational therapy and trained staff. In addition, the Council should provide funding so that School B could secure twenty-four hours support per year from a specific charity to help train staff at School B to manage Y’s needs.
22. Ms X told the Council that this was not being provided to School B. The Council said it was and, in a previous complaint to us, it told us it was being provided. The Council has apologised for this error and explains it was a genuine mistake.
23. Ms X pursued a complaint to the Council. At stage one of the Council’s complaint procedures, it maintained that it had provided the necessary funding to School B. During a 2024 annual review of Y’s EHC Plan, Ms X was provided with evidence from School B that this was not the case.
24. Ms X pursued the complaint against the Council. In August 2024, at stage two of the Council’s complaint procedures, the Council upheld Ms X’s complaint, saying the required provision “was delayed and took a significant amount of time to be actioned”.
25. The Council’s letter did not specify the length of time that there had been this failure. But it did acknowledge that Ms X had had to constantly challenge the Council’s assertion that the funding had been provided. The Council said that the communication from the SEN department could have been better and was a ‘learning point’ for the Council.
26. The Council says it has a comprehensive action plan to improve its Education and SEN service which it has shared with us.

Findings

27. The Council has been at fault because it failed to provide the necessary funding to School B from October 2022 to July 2024. It is also the case that Ms X has had to diligently pursue this matter. This has caused avoidable distress and frustration, and Y has lost out on receiving specific help at School B.
28. Ms X says that, now School B is receiving this funding, she has noticed that staff at School B are better able to manage Y’s complex needs and his learning ability has improved.
29. Accordingly, I consider that Y has lost out on receiving specialist help at School B.

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Action

30. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
31. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
32. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
33. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

34. Within one month of the final statement, the Council has agreed to:

• apologise to Ms X for the faults identified and make a symbolic payment of £1,200 (approximately £250 per school term over the period of October 2022 to June 2024) which Ms X should use to the benefit of Y; and
• make a payment of £500 to Ms X for her avoidable distress, frustration and time and trouble in pursuing her complaint.

35. The Council has an action plan to improve its Education/SEN services, so I do not consider it is necessary to make any specific service improvements.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice. I have recommended ways to remedy this which the Council has accepted. Therefore, I have completed my investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman