Summary: There was fault by the Council when it failed to make sure that Mrs B’s daughter was getting the special educational provision set out in her Education Health and Care Plan. This meant that her daughter missed out on crucial provision and also caused Mrs B and her family distress and frustration. The Council has agreed to make a symbolic payment to Mrs B in recognition of the missed provision, and a separate payment to recognise the impact on Mrs B and here family.

The complaint

1. Mrs B complains that the Council failed to make sure that her daughter, K, received the provision set out in her Education Health and Care (EHC) Plan from September 2021 to October 2024.
2. Mrs B says that the Council’s failings have meant that K has not reached her full potential. She has been frustrated by school and when she gets home to her family she has been very dysregulated and this has impacted on the whole family. K says that she was sitting in lessons doing nothing because she did not have the support she needed. Mrs B says that she and the occupational therapist (OT) has spent time chasing the school and the Council to find out what provision is being made.

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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. 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

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

The law and guidance

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.
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. 

11. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place.

What happened

12. Mrs B’s child, K, goes to a special school and has an EHC Plan. It says K will have various individual 1:1 sessions focusing on specific aspects every day. As well as this, K will have an adult stay with her while she tries the task. She will have small group sessions to help her develop social skills and support her sensory needs. The Plan also says that K will have a differentiated approach to the curriculum, to handwriting and to managing her behaviour, as well as a visual timetable.
13. K moved to her special school in September 2021 and the Council reviewed the EHC Plan in May 2022. This review set out the current provision being made as per the EHC Plan. Mrs B participated in the annual review report and the meeting. The notes say that K is very happy at the school, although she does express frustration about things that happen during the school day. The Council decided not to amend the EHC Plan.
14. The Council next reviewed the Plan in March 2023. The report for the annual review meeting set out that overall K was doing well against the targets and outcomes of the EHC Plan. It also set out the current provision. This did not mention any 1:1 sessions, nor the small group work for social skills and to support K’s sensory needs. The report said that an adult stayed with K as she started classroom tasks where possible. The report said that K received a differentiated curriculum, approach to handwriting and to managing her behaviour, as well as a visual timetable.
15. The Council decided to amend parts of the EHC Plan but did not amend the provision to be made. The Council issued the new EHC Plan and this set out that K should still receive teaching via various daily 1:1 lessons and also some small groups.
16. The family is also supported by the Council’s adoption services and September 2023, it paid for an OT to assess K’s needs to inform her EHC Plan. The report sets out that Mrs B was concerned about K’s self-regulation, sensory processing issues, controlling behaviour and aggression. The OT set out recommendations to include in a new EHC Plan.
17. Mrs B says that following this in 2023, and during 2024, she and the OT sought reassurance from the school that it was delivering the provision set out in K’s EHC Plan.
18. The next annual review of the Plan was March 2024. The report for the review meeting set out Mrs B’s view that the K’s biggest barrier was not feeling safe in the classroom. She said K needed more 1:1 support and she did not believe the school was meeting K’s sensory needs.
19. In June 2024, the school confirmed that it had not been delivering the 1:1 sessions or small group work set out in K’s Plan. Mrs B complained to the Council that K was not receiving the provision set out in the EHC Plan. The Council met with Mrs B, the school and the occupational therapist.
20. The Council agreed that not all the provision was being delivered. It apologised to Mrs B and increased the funding so that the school could make the provision as set out in K’s EHC Plan. The Council followed this up with a meeting between the Council, the school and the OT.
21. The Council agreed to amend the EHC Plan and to arrange for an educational psychologist to reassess what would meet K’s needs now. It said it would make further changes to K’s EHC Plan when the EP had completed the assessment.
22. Mrs B said during meetings with the Council, it came to light that K had not received the correct provision for the last three years. She asked the Council to consider this at stage two of the complaints procedure. Mrs B also complained that the Council had not had sufficient regard to the impact on K and the family of the missed provision.
23. The Council again acknowledged that parts of K’s EHC Plan provision had not been delivered. It did not say for how long this had been going on. The Council again said it had considered the impact via the amendments to the EHC Plan and the EP’s new assessment.
24. Mrs B complained to the Ombudsman. The Council has explained to us that the situation had arisen because K’s EHC Plan was written when she was in a mainstream school. The Council did not change the provision when K moved to a special school with smaller classes and specialist teaching. To deliver all of the 1:1 teaching in a special school, K would have to come out of lessons.
25. Following Mrs B’s complaint, the Educational Psychologist finished their review and the Council has consulted other special schools that might better meet K’s needs. It offered Mrs B a change of placement for K, but Mrs B decided that K would be best to stay at her current school. Mrs B has told me that when she visited the potential new placement, she felt that K was now very far behind her peers. The Council issued the final amended EHC Plan. The provision to be made in school has been amended but is broadly similar to that set out in K’s previous EHC Plans with significant daily 1:1 teaching.

Was there fault causing injustice to K and her family?

26. The Council has a duty to make sure that K receives the provision set out in her EHC Plan. The Council asked the school to do this on its behalf but it cannot delegate the duty to the school. We accept that the Council cannot keep a watching brief on what happens in the school, but it should be able to show us that it has enough information and sufficient oversight to make sure that it is meeting its duty.
27. The Council reviewed K’s EHC Plan in the first year of her time at the new special school. It has since learned that the school was not properly implementing the Plan. But this was not fault by the Council because the annual review did not give any indication that the provision was not in place, and the school reported that it was making this broadly in line with the Plan.
28. However, when the Council reviewed the Plan in March 2023, it was clear that the provision the school was making did not match the EHC Plan. There were no daily 1:1 sessions, and the adult was only on hand to stay with K at the beginning of the task when possible. The Council missed the opportunity here to make sure that the provision was in place and this was fault. The Council has said that the Plan was not suitable for a special school. If this was the case, then it was open to the Council to propose amendments as part of the review in line with the legal process.
29. The Council acted in good time, when Mrs B told it that the school was not making the provision. It quickly arranged for increased funding so the school could make the provision, and it followed this up to make sure the provision was in place.
30. The Council said that the EHC Plan was not suited to a special school that has fewer pupils for each adult in the classroom. However, the current EHC Plan based on the new assessment, stipulates broadly the same provision. The missing provision was a fundamental part of meeting K’s needs as it includes daily 1:1 sessions, and it is clear that K needed this, and still does need this, despite being in a special school setting. The Council’s failure to meet its legal duty meant that K missed out on crucial provision from at least March 2023 to June 2024 (around 4 terms).
31. Mrs B was also caused distress because the lack of support in the school had an impact on K at home, and because she had to pursue matters to resolve the situation.

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Action

32. The Council will within one month of the date of this decision:
• Pay to Mrs B £1,200 per term in recognition of the missed provision. This totals £4,800 and Mrs B can use this for the benefit of K as she sees fit.
• Pay to Mrs B £250 in recognition of the distress and frustration caused to her when her child was not receiving the correct educational provision.
• Share this decision with staff and remind the relevant staff that the annual review should be used to check that EHC Plan provision is in place and that the Council is meeting its statutory duty in this regard.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman