Summary: Dr X complains that the Council failed to ensure her child, Y, received the provision in his Education, Health and Care Plan. We found the Council at fault as the school delayed in putting in place some of the provision in section F of Y’s Education, Health and Care Plan. This made it harder for Y to settle into his school and disadvantaged him. The delay also caused distress to Dr X. The Council will remedy this injustice as recommended.

The complaint

1. Dr X complains that the Council failed to ensure her child, Y received some of the provision set out in section F of his Education, Health and Care Plan. As a result, Y’s transition to high school failed and he was unable to attend school from October 2024.

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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 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)
3. When considering complaints 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.
4. 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)
5. 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

6. I have investigated events between September 2024 when Y first attended school and November 2024 when the Council issued its final response to Dr X’s complaint.

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How I considered this complaint

7. I considered evidence provided by Dr X and the Council as well as relevant law, policy and guidance.
8. Dr X 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

Law and guidance

9. 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.
10. 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)  

What happened

11. The following is a summary of the key events relevant to my consideration of the complaint.
12. Dr X’s child, Y, has an EHC Plan. He transferred to a high school in September. Section F of Y’s EHC Plan set out the special educational provision Y required. The provision included:

• The opportunity to spend time with his close friends, for example by ensuring that they are placed into the same form group
• A member of staff to be his ‘trusted adult’ who he can turn to and who should be knowledgeable in neurodiversity and daily opportunities to ‘touch base’ with a trusted staff member to discuss his feelings and concerns.
• Consistent access to a laptop or computer for written work
• Ensuring Y has a space and time to self-regulate, if needed, or take time out in a private space.

13. In mid-September, Dr X complained to the Council that the school had not ensured Y had access to a laptop and had not placed him in a form or any classes with his friends. Dr X also said that the school did not introduce a trusted member of staff to him when he first started at the school.
14. The Council and school had a telephone discussion with Dr X about her concerns. A record of the call shows Dr X raised that Y had missed a significant number of school days since the beginning of the school. Y found the school environment to be extremely stressful which the provision in his EHC Plan was supposed to guard against. The Council and school agreed a number of actions including naming a member of staff to check in with Y on the days he could attend school and arranging for Y to attend a club to access peer relationships. The record noted Y wanted to continue to attend the school.
15. Dr X’s record of the call notes she considered Y could not access a laptop as he was unable to carry it and could not access the area suggested by the school for overnight storage due to busy corridors.
16. The Council responded to Dr X’s complaint. It noted Dr X had discussed her concerns with the school to address the specific aspects of Y’s school day that he found to be overwhelming. It said the school acknowledged there had been a breakdown in communication about placing Y in a form with his close friends and offered their apologies. The Council noted the school had identified a key member of staff with whom Y had already begun to build a relationship. The Council upheld Dr X’s complaint.
17. The Council’s records note Dr X continued to raise concerns with the school and Council about Y not attending school. Dr X also raised that Y’s quiet space was not safe for him as it was not sufficiently private.
18. The Council, school and Dr X held a meeting in November to discuss an action plan to facilitate Y’s return to school. It was agreed that Y would return to school on a reduced timetable. The school would also revisit the designated quiet space with Y.
19. Dr X also made a further complaint about the school not implementing the provisions in section F of Y’s EHC Plan as Y was unable to attend lessons at all. The Council responded to Dr X’s complaint in mid-November. It noted a number of actions had been identified to facilitate Y’s return to school. It did not uphold Dr X’s complaint.
20. In response to my enquiries, the Council and school said:

• Y was placed in a form group with some children from his primary school but not with his friends as the school was not provided with their names. The school offered opportunities for Y to mix with his close friends when it became aware his friends were not in his form group. Y could spend lunchtime and breaks with his friends, and it also later offered a change of form groups for Y.
• The school identified a key member of staff for Y to touch base with and another member of staff offered 1:1 support each morning.
• The school had offered a designated safe space for Y.
• Y had access to a laptop after he was given his username and password. The school offered to keep the laptop in an area for storage and deliver it to his lessons.

21. Dr X considers the school did not put in place all the provision in section F for Y when he started the school which prevented him from transitioning successfully to the school. Y has been out of school since October 2024.

Analysis

22. Councils have a duty to secure the special education provision in an EHC Plan and this should be in place from the date of the final EHC Plan or when the child starts the named placement. There is evidence to show that some provision in Y’s EHC Plan was not in place when he started at school in September.
23. In response to Dr X’s complaint, the Council acknowledged the school did not place Y in a form with his close friends. I am mindful that Y’s EHC Plan suggested rather than directed the school to place Y in the same form as his close friends. But there is no evidence to show the school took any action to ensure Y had opportunities to spend time with his close friends when he first attended the school. The school only started to consider Y’s opportunities for spending time with his close friends following its meeting with Dr X and the Council in early October. So, I consider the school delayed in making this provision for Y and this was fault.
24. It is not clear when Y had access to a laptop. The school said Y had access to a laptop after receiving his username and password, but it has not said when he received these. Dr X said Y was without a laptop for a few days so had to handwrite in classes and has provided some evidence to show this. I therefore consider it is more likely than not that the school did not ensure Y had consistent access to a laptop for a short period of time when he first started at the school. This was fault. I am mindful that Dr X was unhappy with the subsequent arrangements for Y to collect and transport the laptop when it was provided. But the school had provided the laptop, so this is not evidence of fault.
25. The school has said Y was introduced to a trusted adult when he attended transition events. But there is no evidence to show any arrangements were made to introduce them to Y when he started at the school or inform him of how to contact them. The school allocated a member of staff to be Y’s trusted adult from early October. But this was a month after the start of term. I therefore consider there was a delay of one month in making this provision. This was fault.
26. The school has said it provided a quiet space for Y. However, I understand this was a shared space so was not private as specified in Y’s EHC Plan. I therefore consider the school did not make this provision and this was fault.
27. I cannot know, even on balance, if the delays in providing opportunities for Y to spend time with close friends, providing a laptop, providing a trusted adult and private space caused Y not to be able to attend school. But the delay in making these provisions will have made it harder for Y to settle into his new school and disadvantaged him. The delays also caused distress to Dr X. The Council should remedy this injustice.

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Action

28. That the Council will:
1. Send a written apology to Dr X for the disadvantage caused to Y by the delays in making some of the provision set out in his Education, Health and Care Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Make a symbolic payment of £500 to Dr X for Y to acknowledge the disadvantage caused to him by the delay in making some of the provision set out in his Education, Health and Care Plan.
3. Make a symbolic payment of £150 to Dr X to acknowledge the distress caused to her by the delay in making some of the provision in Y’s Education, Health and Care Plan.
4. Share the learning from this complaint with the school which is that the provision set out in section F should be made from the date of a pupil’s final Education, Health and Care Plan or from the date they start at the school (if later).
29. The Council should take the action at a) to c) within one month and the action at d) within two months of the final decision. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman