Summary: Miss X complained the Council failed to act to secure her child’s special educational provision during the 2023/24 academic year. Miss X said her child did not receive the special educational provision they were entitled to, affecting their attainment and wellbeing. This also caused Miss X avoidable distress. We have found the Council at fault for delays in seeking an early review of Z’s Education, Health and Care (EHC) Plan and for not taking sufficient action to satisfy itself Z’s provision was being secured. We have also found the Council at fault for the lack of specificity in Z’s EHC Plan. We find there is uncertainty over what provision Z should have received and what provision he has received, which has caused avoidable distress and frustration. The Council has agreed to apologise to Miss X and pay a symbolic financial remedy to recognise this uncertainty. The Council has also agreed to take clear steps to satisfy itself Z’s provision is in place and identify whether any additional interventions are needed.

The complaint

1. Miss X complained the Council failed to secure the special educational provision in her child’s Education, Health and Care (EHC) Plan, during the 2023/24 academic year.
2. Miss X said because of this, her child Z did not receive the special educational provision he was entitled to, affecting his educational attainment and wellbeing. This also caused Miss X avoidable frustration, uncertainty and distress.

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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. 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.
5. 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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What I have and have not investigated

6. Parts of Miss X’s complaints concern the actions and conduct of Z’s school, referred to in this statement as School J. This includes School J’s communication, an incident in which Miss X said School J discriminated against Z by excluding him from an event, and a specific safeguarding concern she raised with School J.
7. The Ombudsman cannot consider School J’s communication and conduct. 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. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plan

11. 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.
12. 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)
13. 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.
14. The SEN Code of Practice says the special educational provision set out in Section F must be detailed and specific. The Code says provision should normally be quantified in terms of the number of hours, the frequency of support, and the level of expertise involved. It should be clear who is responsible for delivering the provision, how often, and for how long.

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What I found

Key events

15. Miss X’s child, referred to as Z in this statement, has an EHC Plan. I understand the Council issued Z’s first EHC Plan in October 2021 and it has been reviewed and amended each year since then. The Council provided the Ombudsman with a copy of an EHC Plan issued on 22 May 2023. This is the EHC Plan I understand was in force throughout the 2023/24 academic year.
16. In October 2023, School J held a review of Z’s EHC Plan. This led to a recommendation to amend the EHC Plan to reflect Z’s current health needs. Miss X also wanted to move Z to a specialist educational setting as soon as possible. The record of the meeting shows no concerns about whether the provision in Z’s EHC Plan was being secured.
17. Miss X told the Ombudsman she sought an early review of Z’s EHC Plan around May 2024, though I have not seen evidence of this request. I have seen correspondence from July 2024 in which the Council asked School J if it could arrange an early review of Z’s EHC Plan, given Miss X’s concerns. On the balance of probabilities, I find Miss X did seek an early review of Z’s EHC Plan in May 2024.
18. In July 2024, Miss X complained to School J about an incident of discrimination. Miss X copied the Council into this correspondence, where she also highlighted concerns about a lack of support for Z. She said she had sought an early review of Z’s EHC Plan for months, but it would not now take place until the following academic year.
19. Internal Council correspondence I have seen from August 2024 shows the Council highlighting Miss X was unhappy with School J’s handling of Z’s EHC Plan. The Council said it had recommended an emergency review of the EHC Plan to address this, but this would not take place until September 2024.
20. On 17 September 2024, the review of Z’s EHC Plan took place. The record of this meeting shows that School J, the Council and Miss X attended the meeting. Miss X was accompanied by a representative. The record of this meeting and what was discussed is sparse, with some sections not being completed. What is available shows:
• The meeting resulted in a recommendation to amend Z’s EHC Plan. Miss X was concerned the provision in Z’s existing plan did not fully meet Z’s needs.
• There was a difference of opinion between Miss X and School J. School J felt Z relied too heavily on the learning support assistant, whereas Miss X was concerned that trying to get Z to obtain support from other staff members would cause setbacks in his progress.
21. Later in September 2024, the Council, Miss X and School J exchanged a series of emails. Summarised:
• Miss X told the Council the provision in Z’s EHC Plan was not being secured. She also raised concerns about the level of consistent support available for Z during the school day.
• The Council confirmed it would be amending Z’s EHC Plan, following the recent review.
• Miss X raised concerns with School J about its communication and not following up on actions agreed at annual review. School J said Z was happy and getting the interventions and support needed, though sometimes interventions were delivered inconsistently when staffing was stretched. School J said if this happened, there was always another adult in the class to support Z, other than the teacher. Miss X said she wanted Z to receive the provision in his EHC Plan, which was a legal requirement.
22. On 29 September 2024, Miss X complained to the Council:
• Miss X said the Council had a duty to secure the provision in Section F of Z’s EHC Plan. Miss X said the Council was in breach of that duty. She said School J recently confirmed Z was not receiving this provision, due to a lack of resources. Miss X said the Council and School J had ignored her requests for early review from at least May 2024.
• Miss X said Z had not progressed within the past year. Miss X noted School J said Z was happy, but said his communication needs were still significant and he could not properly communicate any distress or unhappiness he felt.
• Miss X set out the details of the provision she believed was not in place.
23. On 14 October 2024, the Council responded to Miss X’s complaint:
• The Council said School J confirmed that when it was not affected by resource issues, Z received support throughout the day and did receive the provision in his EHC Plan. The Council said School J accepted Z’s progress was limited, despite these interventions.
• The Council said School J was affected by a national shortage of teachers and support staff. It said School J made every effort to maintain support for Z.
• The Council accepted School J had challenges in fully implementing some of Z’s EHC Plan. It said it was working with School J and there was no evidence the Council had failed in its duty to secure Z’s provision.
24. On 16 October 2024, Miss X escalated her complaint:
• Miss X said the Council failed to consider Z’s lack of provision and progress over the past year.
• Miss X said the Council had no proof School J had put Z’s provision in place. Miss X said the timetable the Council provided did not match the provision in Z’s EHC Plan, so Z was not receiving what he should.
• Miss X said the EHC Plan was legally binding, so a lack of resources did not provide mitigation for missed provision. Miss X highlighted the lack of early review.
25. The Council asked Miss X for evidence that Z did not receive the provision in his EHC Plan. Miss X highlighted School J’s email and the Council’s own stage one complaint response, where it accepted School J did not always secure interventions.
26. In November 2024, Miss X told the Council School J was no longer responding to her complaints. She said Z was still not receiving his full provision and was not making progress. The Council said School J said it was implementing Z’s provision. The Council said it had reiterated School J’s duty to deliver Z’s provision and it would monitor this at the next annual review. Miss X said the Council just accepted School J’s assurances and had done nothing to help.
27. On 25 November 2024, the Council provided its stage two complaint response:
• The Council apologised that School J had struggled to meet Z’s needs when its resources were stretched. It said School J had made every effort to meet Z’s needs.
• The Council said there were no concerns raised at the review in October 2023. It said School J had only suggested it could not meet Z’s needs after Miss X complained, as School J was concerned it could not meet Miss X’s expectations. The Council said the duty was to secure the provision in Section F of Z’s EHC Plan, which School J said it was doing. The Council said School J had not advised it could not deliver Z’s provision.
• The Council said there was no evidence it had failed in its duty to secure the provision in Section F of Z’s EHC Plan.
28. The Ombudsman has seen correspondence showing Miss X continued to raise concerns about School J’s complaint responses and Z’s provision into 2025.

Analysis

Did the Council act with fault?

EHC Plan

29. The SEN Code of Practice says the special educational provision detailed in Section F of an EHC Plan should be specific and measurable. The plan should specify the type of provision and who will deliver it, the number of overall hours, and the frequency and duration of specific sessions.
30. Section F of Z’s EHC Plan largely comprises of non-quantified strategies which the plan says should be implemented throughout the school day. It generally does not make clear who will deliver the provision, for how long, or for how often.
31. This lack of specificity is in contravention with the SEN Code of Practice. I have found the Council at fault for this.

Council’s oversight of provision

32. Paragraph 13 sets out the Ombudsman’s expectations of how councils should fulfil their duty to keep special educational provision under review, and when councils should intervene and secure provision where needed.
33. The Council said it received no concerns about a failure to secure Z’s provision in the October 2023 review. I have reviewed the paperwork for this meeting: while amendments to Z’s EHC Plan are proposed to reflect updated health needs, and a new setting is sought for the future, there are no specific concerns about delivery of current provision for the Council to act upon. I have not therefore found the Council at fault for how it responded to the October 2023 review.
34. I understand Miss X sought an early review of Z’s EHC Plan in the summer term of the 2023/24 academic year. I am unclear whether Miss X sought the review because she thought the provision in Z’s EHC Plan was insufficient, because she thought it was not being delivered, or a combination of the two.
35. Having received this request, the Ombudsman would expect the Council to raise the concerns with School J, seek evidence that Z’s provision was in place, and propose an early review of Z’s EHC Plan as quickly as possible. Given Miss X raised concerns in May 2024, I find there was a delay in conducting an early review of Z’s EHC Plan, as this did not take place until September 2024. I have found the Council at fault for this.
36. The notes of the review that took place are sparse and do not reflect whether the Council considered if Z missed provision during the 2023/24 academic year. I have found the Council at fault for the lack of clarity in these notes.
37. After the Council agreed to amend Z’s EHC Plan, Miss X told the Council that School J was still not securing Z’s provision. In its final complaint response, the Council said School J was responsible for this. It said School J occasionally struggled to secure some interventions due to resource issues, but that it had not said it could not meet Z’s needs and the Council was satisfied it was securing interventions. The Council said it would work with School J and arrange any catch-up provision Z may need, but there was no evidence the Council had failed in its duties towards Z.
38. I have concerns about the Council’s complaint response. The Council’s response does not properly reflect that the Council is responsible for securing the special educational provision in Z’s EHC Plan, even if it delegates this responsibility to School J on a day-to-day basis. It is unclear what steps the Council took to satisfy itself School J had Z’s provision in place, beyond receiving a copy of Z’s timetable, the accuracy of which Miss X disputed. The Council’s response was also contradictory in places. The Council suggested School J had not fully secured Z’s provision on occasion and it was open to providing catch-up provision if needed. However, it also stated the Council was satisfied with School J’s efforts and suggested Miss X’s expectations were a factor.
39. Overall, it is unclear whether the Council agreed Z had actually missed provision, or if and how it had fully satisfied itself the provision was fully in place going forward. It was also unclear how the Council would maintain oversight, or assess whether Z needed catch-up provision, given Miss X’s active concerns. I have found the Council at fault for its complaint response and for not clearly addressing or resolving the substantive issue.

Did the Council’s faults cause an injustice?

40. I have not found the Council at fault before May 2024. I cannot therefore consider whether Miss X and Z suffered an injustice before this point. I have considered whether the Council’s faults caused an injustice from May 2024 until November 2024, when the Council issued its final complaint response.
41. The lack of specificity in Z’s EHC Plan means the Ombudsman cannot form a clear view of how much provision should have been delivered. This causes a significant level of uncertainty concerning what provision Z received, what provision should have been delivered, and what impact any loss of provision had over time. This uncertainty is an injustice to Miss X in itself.
42. Miss X said Z’s lack of academic progress was evidence the Council had failed to secure his special educational provision. I recognise Miss X’s strong views on this point. However, I cannot make such a clear finding in this case. Section F in Z’s EHC Plan largely comprises of unquantified strategies that we cannot meaningfully separate from the general education provision School J delivered.
43. The Council delayed arranging an early review of Z’s EHC Plan, meaning it delayed an opportunity to consider and address Miss X’s concerns in the final two-and-a-half months of the 2023/24 academic year. Had the Council intervened sooner, it is possible it could have acted to reduce Miss X’s uncertainty ahead of the start of the 2024/25 academic year. Miss X’s prolonged uncertainty between May 2024 and September 2024 is an injustice.
44. The Council’s ineffective complaint response further compounded Miss X’s uncertainty around what provision Z received and what impact this had. From the correspondence I have seen, this uncertainty remains largely unaddressed. In other correspondence, the Council also said it would review any concerns about Z’s provision at the next annual review, though this would have been up to 12 months away. The Council did not explain how it would address Miss X’s concerns about Z’s provision in the meantime. I have recommended the Council act to recognise and address the remaining uncertainty.

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Action

45. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Miss X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
2. Remind relevant officers that it is the Council’s responsibility to secure the special educational provision set out in section F of an EHC Plan and that this duty is non-delegable, as per Section 42 of the Children and Families Act.
3. Remind relevant officers the provision specified in Section F of an EHC Plan must be specific, detailed and quantifiable, as per the SEN Code of Practice.
4. Pay Miss X £300 to recognise the avoidable uncertainty and distress she has experienced as a result of the Council’s faults.
46. Within 12 weeks of the final decision being issued, the Council has agreed to:
1. Carry out a review of Z’s EHC Plan and satisfy itself the provision set out in the current EHC Plan is in place. The Council should then write to Miss X to confirm if it is satisfied it has secured its duty to secure the provision in Z’s EHC Plan. If the Council identifies any loss or gaps in provision, the Council should set out whether it believes Z would benefit from additional interventions and provide a proposal and timescales for this.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman