Summary: Ms X complained the Council failed to secure special educational provision in Section F of her child’s Education, Health and Care (EHC) Plan by way of providing sufficient funding so the school could recruit support staff. This led to a serious incident where her child’s safety was put at risk. I find the Council did fail to ensure Ms X’s child, and other children within the school, received all the special educational provision to which they were legally entitled. I also find the Council failed to consider its equality duties when disabled pupils had reduced timetables because of funding pressures. The Council has agreed to apologise to Ms X, make a symbolic payment for lost education and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complained the Council has failed to secure special educational provision in Section F of her child’s Education, Health and Care (EHC) Plan in breach of Section 42 of the Children and Families Act 2014. This led to a serious incident because her child did not have their 1:1 support in place at the start of term.
2. Ms X complained the school did not have enough funding from the Council to secure all the provision in her child’s EHC Plan and this is an ongoing problem.
3. Ms X complained the Council failed to accept it was accountable and sought to blame the school’s practice, when it was clear the school was doing its best.
4. Ms X complained while the Council has had discussions with the school about additional funding this should have happened in advance, not await a serious incident. Staff needed to be in place in advance of her child starting school.
5. Other families are potentially affected by the alleged fault as the school states it has several children with additional needs but a funding shortfall.

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The Ombudsman’s role and powers

6. 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)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
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)

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How I considered this complaint

10. I considered evidence provided to me by Ms X, the Council and the School as well as relevant law, policy and guidance.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
12. 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 investigated

13. I have investigated whether the Council secured special educational provision for Ms X’s child for the academic year 2024-5.

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What I found

Relevant law and guidance

14. 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.
15. The EHC Plan is set out in sections. Section F specifies the special educational provision needed by the child or the young person. 
16. 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)  
17. In R (N) v North Tyneside Borough Council the Court of Appeal made clear that the duty of a local authority to secure the provision was absolute: “The duty to arrange for the specified provision is a mandatory one. There can be no excuse if there are financial or other practical difficulties in giving effect to the terms of the statement …."
18. In HXN, R (On the Application Of) v London Borough of Redbridge [2024] EWHC 443 (Admin) the Court found: “The evidence filed by the Council, seen as a whole, strongly suggests that the Council has effectively sought to delegate to the school the responsibility for ensuring that the requirements of H's EHCP are delivered. This is inappropriate. The statutory responsibility for securing the special education provision specified in the EHCP rests with the Council, not the school.”
19. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools 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. 

20. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
21. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
22. The ‘protected characteristics’ referred to in the Act are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

23. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.

Special Educational Needs (SEN) funding

24. The Council allocates funding to schools through the ‘schools block’ and ‘high needs’ block.
25. Its website says:
• the schools block is made up of:
1. Element 1 – per pupil funding used to support all pupils including those who have SEN
2. Element 2 – SEN funding delegated to schools to spend directly on SEN provision calculated according to a formula that includes pupil numbers.
• Schools and academies should have sufficient funding in their delegated SEN funding budget to support pupils’ where required. Mainstream schools are expected to contribute up to £6000 towards the cost of special educational provision per pupil.
• Where individual pupils require additional support that costs more than £6000, the extra costs should be met by Element 3 (or ‘top-up’) funding from the high needs block. (High Needs Operational Guidance, Department for Education).
• The Council provides Element 3 funding to pupils with and without an EHC Plan.
26. The Council made changes to how it allocated Element 3 funding in 2023. To access support schools had to submit an ‘Identification of Needs Descriptors in Education Settings’ (INDES) and an ‘Inclusion and Provision Self-evaluation Framework’ (IPSEF) to give a context to the child’s needs and the setting. INDES submissions for pupils with high needs needed to be made when the pupil joined the setting or their needs significantly changed. This was used to calculate if top-up funding above the £6000 notional school contribution would be provided.
27. The Council set up a Reception Year Bridging Fund to support the transition of children with particularly high needs entering mainstream schools. This was a sum automatically allocated when a “high needs” child started Reception. Once the school had got to know the child they could decide whether to complete an INDES for additional funding.
28. The Council decided bridging funding would be allocated only once it was confirmed the pupil had arrived on roll in September and be paid to schools in October or November.
29. In September 2024 the Council provided an update to schools that it would contact schools in the first two weeks of September to ensure children expected to be on roll have arrived and then confirm the amount of Reception bridging funding a school would be allocated, with a minimum rate of £4500 per child. The Council apologised it had not provided updates on Element 3 before this time. It said an unprecedented number of referrals had meant it had taken much longer than usual to determine the level of funding needed.

What happened

30. In September 2024 Ms X’s child started Reception with an EHC Plan that had already been in place for a few years. Her child’s needs were therefore well known to the Council.
31. Ms X complained to the Council in mid-October 2024 that it had failed to provide sufficient funding to the school to employ 1:1 staff to support her child when eating and drinking although this was specified as required in Section F of their EHC Plan. As a result, her child had eaten a prohibited food and suffered an allergic reaction.
32. Ms X said the Council did not apologise or show any concern for her child and did not put the required provision in place.
33. Ms X says the worry whether her child is safe in school causes her anxiety.
34. The School told me:
• The Council consulted it about admitting nine additional high needs pupils for September 2024, including six in Reception. The School said it could not meet all the pupils needs, but the Council overruled the School, and it was required to admit the children.
• The School initially had only £20,000 uplift in special educational needs (SEN) funding. The School told the Council EHC Plans for the additional nine children would require £120,000 in funding. The School says the Council agreed its £120,000 figure was accurate but did not provide these funds.
• The School says the Council advised it to consider part-time timetables to manage needs for Reception pupils.
• The Council’s changes to funding arrangements for 2024/5 meant notice of the full allocated funding per high needs pupil was delayed compared to previous years. Usually schools would know in June what top-up funding it would receive, allowing them to plan for September. While the funds did not generally arrive until October, schools took the funds on ‘good faith’ and the Council would recoup any funds if a child ended up not coming to the school. In 2024/5 the process changed so schools were aware of bridging funding in June 2024 but did not know the level of additional funding or when this would arrive.
• The bridging funds for new starters in Reception would fund 1:1 support only until October half-term. The School said it was not practical to employ new staff for a short period and it decided to share teaching assistant support until the additional funding was known. The School moved 40% of its support staff to early years to ensure high levels of support for the first 4-6 weeks of term, but despite this, due to the number of children with high needs, it could not assign 1:1 to Ms X’s child, despite the Plan requiring this at certain times. When the incident occurred, staff were helping two other high needs children.
• Following the incident Ms X’s child was allocated 1:1 support for 30 minutes to cover lunch, by exceptionally paying a member of staff overtime. The School says it still could not provide 1:1 supervision with drinking throughout the day as this would require 1:1 dedicated to Ms X’s child. It also says some learning support in Ms X’s child’s EHC Plan was not provided throughout 2024/5 due to lack of funding.
• Moving staff to early years impacted on high needs pupils further up the school who were without their usual support.
35. The School apologised to Ms X for the incident and said this was not consistent with care they usually provided.
36. The School said it had made clear to the Council on several occasions prior to September 2024 that the Element 3 funding was insufficient to meet the EHC Plans for the new pupils and the Council ‘acknowledged this, hence their suggestion of part-time’. The School confirmed to me this was a reference to use of part-time timetables for Reception pupils with EHC Plans to manage the shortfall and delay in funding.
37. When I made enquiries of the Council it denied it had encouraged or endorsed the School’s use of part time timetables to manage funding shortfalls for EHC Plans. I have seen evidence it stated to the School they could be used as part of a robust transition process for new pupils. The Council has acknowledged in response to my draft decision that it was aware the School was using reduced timetables and that it did not challenge the use of them.
38. Following the incident the School told Ms X it was seeking a timeline for funding allocation, but the Council had not responded. Once the allocation had been confirmed it would take ten weeks to advertise, recruit and onboard a new teaching assistant, therefore the School was trying to make the bridging payment last.
39. The Council provided a complaint response in late October which stated it was the School’s responsibility to ensure the Section F provision was in place. If there was any reason the School could not do so it should contact the EHC Plan team at the Council.
40. The Council says it identified children who would require bridging funding in the Summer and paid this in the Autumn once it was confirmed that children had arrived at their expected destinations. Schools also had a notional SEN fund (£6000 per pupil) that is provided in April to cover the financial year to March and are expected to use this until Element 3 funding is allocated. It said the School could request additional bridging funding.
41. In November the School replied to Ms X further that it had received notice of allocations and funding had been cut by half, except bridging funding which remained at £4500, but which was to cover the Autumn and Spring term. £4500 would cover eight weeks of 1:1 not 26-28 weeks. The School confirmed it did receive notional £6000 per pupil funding in April but this does not include Reception year children who are not funded until Year 1 (which is why bridging funding is in place).
42. The School told me it could not understand why it had not been considered for enhanced bridging funding given the number of pupils that were unfunded and that it had been raising concerns about increasing from 6 to 15 high needs pupils since March. The School told the Council it would have to exclude pupils or use part-time timetables without full funding. The School submitted an application for enhanced bridging funding once it became aware of its existence in Autumn 2024.
43. Ms X continued her complaint to the Council and received a further response that it had met the School, and in the Council’s view the School had received necessary funding and it was for the School to decide how funds were deployed and Ms X should direct her concerns to the School.
44. The School has not accepted the Council’s viewpoint it has sufficient funding to meet the needs of all children with EHC Plans.
45. The School told me Ms X’s child was safe and received £15,000 of support, for which the School received £4500 funding. The School was using 58% of its SEN funding on Reception SEN pupils, which was not sustainable.
46. The School told me Ms X’s child has short periods of 1:1 but in the main continues to be supported 1:2 or 1:3 with learning tasks, which does not meet the wording in the EHC Plan.
47. The School says Reception parents were encouraged to consent to part-time timetables at the start of term. This applied to four pupils and was reduced to two pupils by week six of term. The School said while this could also be beneficial for some pupils as part of an effective transition, it was driven by funding challenges and the need to keep children safe.
48. The School told me that even reducing time in school to mornings only it had to pull support away from three children further up the school, although their Plans stated 1:1 was required. The School supports the failure to provide it with sufficient funding or staff caused an injustice not just to Ms X’s child but to other children in the school.
49. The School says it continues to have two pupils on a reduced timetable, both of whom would be unsafe without continuous 1:1 support. There is no medical reason they cannot attend more, but they would be unsafe without 1:1 support, and if they attended fulltime then support would have to be pulled from other children like Ms X’s. Both children were not of statutory school age and the School has consulted with parents about the arrangements.
50. As set out above, the Council denies endorsing or encouraging the use of reduced timetables but accepts it is aware the School was using them and it had not challenged their use.

Analysis

51. An EHC Plan is a legal document and there is a mandatory duty to secure all Section F provision for every pupil with a Plan. The duty to secure provision in a pupil’s EHC Plan rests with the Council. The Council can delegate funds to schools but cannot delegate the legal duty.
52. The Council failed to secure Section F provision for Ms X’s child:
1. to support them with eating and drinking at the start of the school year, and
2. in relation to some learning tasks set out in their EHC Plan for the entirety of the academic year.

This is fault and has caused injustice.

53. It is also apparent that other pupils in the school have been affected; some continue to be without the required level of support in the EHC Plans or able to attend school fulltime. This is fault causing injustice.
54. It is clear the changes in funding arose because of unprecedented pressures on the Council. However, the courts have been clear financial constraints are no excuse for not securing provision in an EHC Plan in full. (R (N) v North Tyneside Borough Council)
55. The increase in the number of high needs pupils to this school in one intake also created an unprecedented situation. It should have been apparent the bridging funding would not be sufficient to support this many additional high needs pupils, not least because the School was raising exactly these concerns when it was consulted and when the Council directed the School to admit. While the Council has subsequently provided additional bridging funds, these were not highlighted in previous communications to schools. The School was unable to plan for this number of additional pupils, it could not hire staff in advance of pupils starting.
56. I also find the Council was at fault in deflecting Ms X’s complaint to the school. While its response that schools have sufficient funding may apply in some circumstances, the number of pupils the Council admitted to this school in one go created a very significant funding shortfall.
57. The use of reduced timetables, when not merited for medical or transition purposes, but to manage funding shortfalls and maintain safety is concerning. The Council was aware of their use by the school and did not challenge this.
58. Above statutory school age Councils have duties under s.19 Education Act 1996 to ensure all pupils receive suitable fulltime education. While there may be no duty for councils to supplement education to fulltime for some Reception age pupils under s.19, the Council did have a duty to ensure all the pupils received all the provision in their EHC Plans (under s42 Children and Families Act 2014), which may not have been possible with only part-time attendance. Councils also have duties under the Equality Act 2010 to eliminate discrimination by ensuring policies do not create unequal treatment for pupils who are disabled compared to those without a disability, such as only being able to attend Reception part-time.
59. I find the Council failed to consider its duties under s.42 or its equality duties when being aware of pupils being placed on part-time timetables by the School because of funding pressures.
60. There is clearly a discrepancy in the position of the School and the Council that notional £6000 funding is paid in advance for Reception age pupils and available to use. The advice of the school that bridging funding is in lieu of notional funding for Reception age pupils appears to be correct. This would indicate the Council gave inaccurate advice in its complaint response to Ms X, and in its response to my enquiries, that the school had £6000 plus bridging funding / additional bridging funding available for high needs reception pupils.

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Agreed action

61. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B)). I have set out below the actions the Council should take to remedy the injustice to Ms X and those people who are also caused an injustice by the Council’s fault.

Injustice to Ms X and her child

Within four weeks of my final decision:

62. The Council will apologise to Ms X for failing to secure the provision in her child’s EHC plan which led to the health and safety incident and to her child missing out on some of their special educational provision throughout the year 2024-5.
63. The Council liaise with the School and Ms X to ensure that the full Section F provision is in place.
64. The Council pay Ms X £2700 (£900 per term) to acknowledge the impact of the fault and the special educational provision her child has missed out on in 2024/5.

Injustice to others potentially affected

Within two months of my final decision:

65. It is not for the Ombudsman to advise the Council how to arrange its funding for schools and we do not pretend to have the answers to what is obviously a complex issue. However, we recommend the Council has a mechanism to calculate funding contributions holistically ensuring the proportion of children with high needs in a particular school has been factored in. Where a school is asked to admit a significant number of additional high needs pupils in one intake, exceeding the provision schools can be expected to fund ‘in good faith’ while awaiting funding, the Council should ensure there is flexibility to make bespoke arrangements. Councils consult with schools before a pupil with an EHC Plan is admitted and this is the opportunity to check that existing funding arrangements are sufficient to secure the provision in the Plan. The Council should take proper account of concerns raised by schools about budget shortfalls and work with schools to ensure Section F provision can be secured from the date of admission.
66. The Council should work with the School, and affected families, to review and remedy provision for other pupils in the School not currently in receipt of their full entitlement to Section F provision or who remain (inappropriately) on reduced timetables.
67. The Council will consider making financial payments for any lost provision in 2024/5 to other families in the school and can refer to the Ombudsman’s Guidance on Remedies for assistance with this.
68. The Council should provide us with evidence it has complied with the above actions.

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Decision

69. 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