Summary: Ms X complained the Council failed to provide the provisions in section F of her child’s Education, Health and Care Plan. The Council is at fault for failing to monitor the provision was in place. This lack of support has caused Ms X and her child distress. The Councils complaint response was poor, causing Ms X additional distress. This is their injustice. The Council agreed a package of remedies.

The complaint

1. Ms X complained the Council failed to provide the provisions in section F of her child’s Education, Health and Care Plan. This has caused Ms X’s child, C, to miss education and has impacted on her wellbeing. It has also caused Ms X frustration and stress. This is their injustice.

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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. 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)
4. 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

5. I have only investigated the Councils response to Ms X’s complaint about its failure to implement the Education, Health and Care (EHC) Plan. I cannot investigate the actions of the school. This is outside the Ombudsman’s jurisdiction.
6. If Ms X is not happy with the EHC Plan itself, she has a right of appeal to the Special Educational Needs (SEN) Tribunal. This is also outside the Ombudsman’s jurisdiction.

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How I considered this complaint

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

Relevant legislation

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. 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. 
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)  
11. 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. 

12. 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. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
15. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

What happened

16. I have summarised below the key events; this is not intended to be a detailed account.
17. The Council issued the final EHC Plan in the middle of June 2024. It named School B, a mainstream school, in section I. The Plan said School B was to meet the provision using place led funding. School B could apply to top up with High Needs Funding.
18. Under the heading ‘monitoring and review’, the Plan said learning staff at School B will meet with C and their parents to draw up an individual learning plan to implement section F of the EHC Plan. The meeting should take place within two months of the Council issuing the EHC Plan. Arrangements should also be made for meeting and reviewing the outcomes and setting further outcomes.
19. School B completed an individual learner support form and High Needs Funding application in early July. The plan said C was due to start at the beginning of September, she was to receive 20 guided learning hours a week on site. This was made up of ten hours in English, five in Maths and five in Sport. The total education costs were around £17,500. The application said this would meet the objectives set out in the EHC Plan.
20. Ms X told me she and her daughter were not invited to a meeting to discuss the individual learning plan.
21. The Council told me the School SENCO had weekly meetings with C to discuss her support, what was working and what was not working. It also said the School had regular meetings, telephone and email contact with Ms X to discuss the support for C. Emails between Ms X and the School in September 2024 show Ms X said C was ‘living with the effects from burnout in Year 11 and the increase in timetable is likely to have an impact on her. I would suggest perhaps 2-3 lessons maximum in any one day.’ Later, in March 2025, the School asked Ms X for her thoughts on further section F provision while being mindful that ‘We don’t want to overload C whilst things are moving forward.’

The complaint

22. Ms X complained to the Council in early September 2024. She said the Council has a duty to ensure the school delivers the special educational provision as set out in the EHC Plan. Ms X said this has not happened. The High Needs Funding was not in place, and C did not have a timetable for the new academic year; she was without suitable educational provision.
23. The Council issued a stage one response later in September. It said School B’s SENCO is applying for High Needs Funding which the finance team will process once received. The SENCO will contact Ms X to set out the provision the school will provide in line with the EHC Plan.
24. Ms X asked for a stage two investigation. She said it was her understanding School B had already applied for the High Needs Funding so the stage one response was inaccurate. She explained C was not receiving suitable education. In the first few weeks of the new academic year, C had received three English lessons.
25. The Council issued a stage two response in the middle of October. It explained the Council had previously offered C a place at a different school, School A, with a bespoke package, which Ms X refused. Instead, the Council’s Panel agreed C could stay at her current School, School B, with a bespoke package. School B would need to apply for High Needs Funding. In response to Ms X’s query about the High Needs Funding application, the Council said it could not find this on the system and referred to documents from a previous academic year.
26. A later email from the Council to Ms X explains it is the Council’s responsibility to meet the special educational provision in the EHC Plan which School B should fulfil using its ‘best endeavours’. It explains School B can ask for High Needs Funding and has done so. It also says School B can call an early Annual Review.
27. Ms X complained to the Ombudsman in October. She said the Council has failed to provide the provision in the EHC Plan. She also said the Council has failed to take accountability for this in response to her complaint.

Analysis

Provision of the EHC Plan

28. The Council finalised the EHC Plan in June 2024 and directed School B, C and her family to meet and draft a learning plan within two months; the deadline was August. The School completed the individual learner support form in July and sent this to the Council. While this was completed within the timescale, the School did not consult with Ms X and C as required by the EHC Plan, before drafting the individual learner support plan.
29. The Council explained in its response to my enquiries that School B applied for the High Needs Funding which is being used to fund the provision. The Council said C was receiving the education as set out in paragraph 19 above. It said the school regularly reviews the case to ensure C is engaging and is receiving suitable provision. The Council said School B has not raised any concerns. It also said it had not been told C was not in receiving her educational provision. It is clear from the Councils response to my enquiries that it believes the Plan is being implemented and C has received section F provision.
30. This does not correlate with what Ms X has told me. In conversation with me she said C receives three hours of maths and one hour of sports each week, a total of four hours. This is much less than the 20 hours agreed in the individual learning plan as set out in paragraph 19, which is what the Council thinks C is receiving.
31. As set out above, a council has a duty to arrange the provision in a child’s EHC Plan. It can ask an organisation to make the provision on its behalf, but it remains responsible. If the organisation fails to provide the provision, the council is liable. In this case, the Council asked School B to work with C and her family to draw up a learning plan and apply for High Needs Funding. The Council completed its role by delegating tasks to the school. However, should the school fail to provide the provision, the Council remains responsible.
32. The Council does not have to keep a ‘watching brief’ over schools but we do expect it to check the provision is in place when a new plan has been introduced or when it receives complaints. I asked the Council for evidence it checked the educational provision was in place following the EHC Plan being issued. It referred to the Higher Needs Funding request from School B as evidence. Considering this was a new EHC plan with a new High Needs Funding award being in place, I would expect the Council to do more than this. I would expect it to check School B was using the funding properly and ask for evidence it had implemented the provision in the learning plan. The Council should have done this at the start of the new academic year as the provision started. It should have also checked when Ms X complained in September that C was not receiving the provision. The Council cannot evidence it has completed these checks. It is at fault. This has caused C distress as she did not know what provision she should have been receiving or receive support from the Council in ensuring this was in place.
33. While the plan was for C to receive 20 learning hours a week at school, this had to be carefully balanced with what she was able to manage, to best promote her wellbeing. The School monitored and reviewed the plan, considered available provisions and discussed these with Ms X. The School was open to adapt and increase the provisions when C was ready. While C did not receive all the provisions within the plan, it was flexible around her needs and balanced with what she could cope with. This limits the injustice.
34. In response to my enquiries, the Council said it has asked School B to carry out an Annual Review to discuss any concerns. This will provide an opportunity for all parties to discuss what is working, what is not working, and draft a new EHC Plan if required. This limits any further injustice.

The Council’s response to the complaint

35. Ms X’s complaint is the Council has not implemented section F of the EHC Plan. C did not have the funding or the timetable in place at the beginning of the new academic year. The Councils response to Ms X’s complaint seems confused. The stage one response says School B must complete the High Needs Fund assessment which the finance team will process on receipt, but at the time the Council responded to the complaint, School B had already completed the assessment and the money was allocated. The complaint response was therefore not an accurate reflection of what had happened at that stage. Neither did it address Ms X’s concerns that C was not receiving an education. It referred to the funding and not the provision. The Councils stage one response was inaccurate and incomplete, its complaint response was poor.
36. In the stage two response, the Council referred to Panel discussing C’s case. This was not a reflection of the present situation, and the case had moved on since. The referral to C’s case being discussed at Panel was irrelevant to this complaint. It also said it could not find the High Needs Funding application on its system. Again, the Councils complaint response was inaccurate. At the time of the response, School B had already made the funding application. The Council’s complaint response was poor. This has caused Ms X additional frustration and time and trouble in pursuing the complaint.

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Action

37. Within four weeks of the Final Decision, the Council should:
• Complete the annual review meeting as proposed and make any changes to the EHC Plan within the statutory deadlines.
• Apologise to Ms X and pay her £500 for the distress, time and trouble it caused through its poor complaint response.
• Pay Ms X for the benefit of C, £1,000 for the distress caused by its lack of support and failing to monitor the package of educational provision.
• Consider how to improve monitoring of annual reviews which are delegated to schools to identify potential failings at the earliest possible opportunity.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman