Summary: Mrs Y complained the Council failed to secure part of the special educational provision set out in her child, Z’s Education Health and Care Plan. We have found fault causing injustice by the Council because of its service failure in failing to deliver support for Z to attend the physical activity provision in their Plan. The Council has agreed to remedy this injustice, by apologising to apologise to Mrs Y and Z and making payments to reflect the impact of the missed provision on Z and the upset caused.

The complaint

1. Mrs Y complains the Council failed to secure the 1.5 hours a week of gym access for her child, Z, set out in section F of their final amended Education Health and Care Plan issued on 14 October 2024.
2. She says the Council failed to provide the support needed for Z’s gym attendance. Because of this, Mrs Y had to provide the support and Z missed sessions when she was unable to do this.
3. Mrs Y wants the Council to make redress for the impact of the missed provision.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

What I have not investigated

8. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
11. I have not investigated the following issues Mrs Y raised in her contact about this complaint:
1. Social care provision of befriender support for Z. This is because:

• this issue is being considered as part of the ongoing investigation by the Council under the statutory children's complaints procedure;
• if a council has investigated something under this procedure, we would not normally re-investigate it. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question;
• we expect people to complete the full procedure before we will consider whether there were any flaws in how a council investigated their concerns: and
• The Council’s investigation under the statutory procedure of Mrs Y’s complaints about Z’s social care, including the issue about befriender support, has not yet been completed.
2. Gym provision as additional alternative provision during the period of Tribunal proceedings. This is because we have already decided, in our final decision on Mrs Y’s previous case, not to investigate her complaint about the Council’s failure to provide this provision.
3. The cost of the privately commissioned educational psychologist reports. This is because this is a matter which was part of, could have been part of, or was connected to Mrs Y’s Tribunal appeal.
4. Maladministration by the Council in naming a school and sharing a draft EHC Plan with this school without their consent. This is because this issue is not part of the complaint investigated in this case.

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How I considered this complaint

12. I considered evidence provided by Mrs Y and the Council as well as relevant law, policy and guidance.
13. Mrs Y 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

What should have happened

Education Health and Care Plan (EHC) Plan 

14. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
15. A child or young person with special educational needs may have an 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
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 the 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.

What happened

17. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

18. Mrs Y appealed to the Tribunal against Z’s special educational needs (SEN) provision and placement named in their final EHC Plan issued in November 2023.
19. The Tribunal proceedings concluded with a consent order on 14 October 2024, agreeing an amended EHC Plan.
20. This final amended Plan said, in section F, Z’s SEN provision would be delivered through an Education otherwise than at School (EOTAS) package. The provision would be delivered by adults who had specialist skills, knowledge and experience of working with young people with similar needs to Z. This included physical activity based on Z’s preferences (the gym) of 1.5 hours a week.

September to December 2024: contact about Z’s support to attend the gym

21. Mrs Y asked the Council in September 2024, before the amended plan was finalised, about the action it had taken to arrange for someone to support Z to attend the gym. The Council said it had contacted a number of organisations to see if they could provide an individual for this support.
22. Mrs Y chased the Council for an update and was told in early October it had not yet had any positive response from these organisations.
23. The final EHC Plan was issued on 14 October.
24. On 18 October, Mrs Y asked the Council for an update. She said she would be unable to take Z to the gym herself during the day because she had another child at home.
25. The Council continued to look for this support without success. In November Mrs Y asked it to review its action take to find someone. She was concerned Z was missing out on the gym provision, which was one of the only two provisions Z was currently able to engage with.
26. In December the Council told Mrs Y it had found a service which might be able to provide the support and asked for details of the days and times Z attended the gym.

January 2025: change to Z’s proposed physical activity

27. Mrs Y told the Council there had been a change in the times the gym was available for children. The new schedule was not suitable for Z.
28. Mrs Y and the Council agreed Z’s provision of 1.5 hours a week of physical activity would be changed from gym to swimming. The Council agreed funding for Mrs Y to arrange this directly.

Mrs Y’s complaint to the Council

29. Mrs Y complained to the Council about a number of issues relating to Z’s EHC Plan and SEN provision, including its failure to provide the support needed for Z to access the gym sessions.
30. In response to this part of her complaint, the Council said it would fund this support if someone could be found to provide it, although this had not been specified in the EHC Plan.
31. Mrs Y was not satisfied with the response and asked us to look at this part of her complaint.

Was there fault by the Council causing injustice?

Service Failure

32. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved.
33. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407

Failure to provide support for Z to access the gym provision

34. The 1.5 hours of physical activity at the gym was part of the SEN provision which the EHC Plan said would be delivered by adults with the relevant specialist skills.
35. The Council’s records and contact with Mrs Y in September 2024 before the issue of the final plan refer to action the Council was taking to provide support for Z to attend the gym. The Council confirmed on 1 October it was still searching for the support.
36. I consider, on the basis of the information I have seen, both the Council and Mrs Y understood the physical activity provision in the final Plan included the support needed for Z to attend the gym.
37. The evidence shows the Council tried, both before and after the final Plan was issued, to arrange appropriate support but was unable to find anyone until December 2024, By this time, the gym sessions were no longer at suitable times for Z and the activity was changed.
38. The Council’s failure to arrange the support was service failure which still amounts to fault.

Impact of this failure

39. Because of this failure, Z missed out on some of their physical activity provision in their EHC Plan during the autumn school term 2024.
40. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
41. My understanding is Mrs Y was able to support Z to attend one 45 minute session a week over the autumn term from 14 October 2024. On this basis Z missed out on about half of the gym provision set out in the EHC Plan during this period (about eight school weeks).
42. This failure also caused Mrs Y additional upset by having to chase the Council about the arrangements for support for Z’s gym provision and provide some of this support herself for Z, because of the service failure by the Council.

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Action

43. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y and to Z for: its failure to provide support for Z to attend the physical activity provision set out in their EHC Plan. This apology should be in line with our guidance on Making an effective apology;
2. pay Mrs Y, on Z’s behalf, £300. This is a remedy for Z’s benefit to recognise the injustice the missed provision caused them; and
3. pay Mrs Y £150 to reflect the additional upset caused by its failure. This is a symbolic amount based on our guidance on remedies
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. The Council has agreed to take the above action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman