Summary: Miss X complained about the Council’s failure to secure a specialist teacher as set out in her child’s the Education, Health and Care Plan. We found the Council at fault and the lack of a specialist teacher was distressing for Miss X and caused uncertainty for her child. To address that injustice, the Council agreed our recommendations to apologise to Miss X and make a symbolic payment of £400.

The complaint

1. Miss X said the Council failed to secure provision in her child’s Education, Health and Care Plan (EHC Plan) between September 2023 and November 2024. Miss X also said the Council then took too long to respond to her complaint about the matter.
2. Miss X said the lack of provision adversely affected her child’s development and wellbeing. Miss X also said dealing with the Council was stressful and had put her to avoidable time and trouble. Miss X wanted the Council to put the missing provision in place immediately.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or procedure, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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.
7. 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)
8. 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

9. Miss X came to us in late January 2025, after receiving the Council’s final response to her complaint in November 2024, which was the end date for my investigation. Miss X said the Council had failed to secure educational provision set out in her child’s EHC Plan from September 2023. A complaint about a lack of provision in 2023 was a late complaint (see paragraph 5 of this statement).
10. However, I was satisfied Miss X, both individually and with other parents, had pursued her concerns throughout the period September 2023 to November 2024, including using the Council’s complaints procedure. So, having considered the circumstances of Miss X’s complaint and her supporting information, I found good reason to exercise my discretion about late complaints. I therefore investigated Miss X’s complaint about the failure to secure provision in her child’s EHC Plan between September 2023 and November 2024.

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council. I also considered relevant law, policy and guidance. This included the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations). And, the Government’s Special Educational Needs and Disability Code of Practice, 2015 (the SEND Code). I gave Miss and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

Special Educational Needs and EHC Plans

12. A child with special educational needs (SEN) 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 First-tier Tribunal (Special Educational Needs and Disability) or the council can do this. 
13. 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 2014). 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 someone else to make the provision and they fail 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)  
14. 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 procedures to: 

• check the special educational provision is in place when issuing a new or amended EHC Plan or changing the educational placement; 
• check the provision at least yearly during the review of an EHC Plan; and 
• quickly investigate and act on complaints or concerns raised about provision not being in place at any time. 

The Council’s corporate complaints procedure

15. The Council has a two stage complaints procedure. At both stages one and two the Council aims to respond to a complaint within 20 working days.

A summary of what happened

16. Miss X’s child (here called ‘C’) had an EHC Plan, which included daily access to and support from a specialist teacher. In early 2023, the Council reviewed C’s EHC Plan before C’s move to a new school in September 2023. The EHC Plan essentially remained unchanged except for adding the name of C’s new school (the School) from September 2023. Miss X said she knew that specialist teachers at the School would be on extended absence by or soon after September 2023. Miss X also understood there would be cover for those absences.
17. The Council said there were no specialist teachers at the School from April 2024. Support for this came from a complaint by parents, including Miss X, that referred to there being no specialist teachers at the School from May 2024. The parents’ complaint said the School was not meeting pupils’ needs, which adversely impacted their education. The parents’ complaint said the School’s position was unacceptable and putting the necessary support in place should be a priority.
18. A few weeks later, Miss X made her individual complaint to the Council. Miss X referred to previous assurances that suitably qualified staff would be in place at the School to cover absences. Miss X said, despite those assurances, C had received no specialist teacher support after moving to the School in September 2023. And, the remaining specialist member of staff was leaving the School in July 2024. Miss X said C’s EHC Plan referred to ‘daily’ support from a specialist teacher and the Council had a legal duty to ensure this happened. Miss X said C was not receiving the national curriculum as existing staff could not support C’s learning needs. Miss X asked the Council to engage a specialist teacher immediately.
19. The Council then responded to the parents’ complaint. The Council said it was also concerned about recruitment of specialist teachers. And, while there was a national shortage of such specialist teachers, it recognised the lack of one at the School was unacceptable. The Council said it intended to commission a review into its educational provision for children with needs like C’s. The review would include recruitment and retention of specialist teachers. Meanwhile it would continue to work with the School and try to recruit specialist teachers. And it would see if places were available in other schools with specialist teachers should any parent wish to move their child from the School. The Council also offered to meet with parents. The parents sent the Council’s response included Miss X.
20. Miss X then chased the Council for a response to her individual complaint. The Council replied, referring to its response to the parents’ complaint. The Council said that response included the issues raised by Miss X in her individual complaint. Miss X, dissatisfied with the Council’s response, continued her individual complaint.
21. Receiving no response, Miss X wrote to the Council again. Miss X said the Council had not complied with its timescale for responding to complaints and asked it to explain the delay. Miss X again asked the Council to take immediate action and employ a specialist teacher for the School.
22. The Council replied, apologising for its delay. The Council referred to a meeting held about two months earlier with parents. It said, after the meeting, it wrote to parents, including Miss X, setting out what it was doing to improve the situation. The Council confirmed it was and would continue to work with the School to recruit a specialist teacher. The Council also said a review (see paragraph 19) had started and would include parents’ views. (In 2025, after completion of the review, the Council received a report with recommendations, including about recruiting and retaining specialist teachers. And, by early 2025, the School had a specialist teacher.)

Consideration of the complaint

C’s EHC Plan and specialist teachers

23. Miss X said C did not receive support from a specialist teacher on moving to the School in September 2023. There was evidence suggesting that a specialist teacher may have been present at the School between September 2023 and April 2024 (see paragraph 17). This included the Council recognising there was no specialist teacher after April 2024. Given C was one of several children at the School with an EHC Plan and needing support from a specialist teacher, both Miss X and the Council may be correct. That is, a specialist teacher might have been present between September 2023 and April 2024 but unable to provide daily support and teaching as set out in C’s EHC Plan. However, there was no dispute C did not receive the EHC Plan’s daily access to and support from a specialist teacher between April and November 2024. This was fault.
24. The Council said there was a national shortage of such specialist teachers. And there was evidence the number of such teachers had reduced in recent years. I was satisfied the Council was aware of challenges in recruiting and retaining such specialist teachers. It had acted on that information to review relevant services and worked with the School to secure a specialist teacher. However, a failure to provide a service, as here with C’s EHC Plan specifying daily access to a specialist teacher, was fault even if the failure was beyond the Council’s control (see paragraph 4). But, given the Council’s recent review and recommendations made in the resulting report, I found no grounds now to recommend any service improvements.
25. Miss X had moved C to the School in September 2023 as it had a dedicated support unit for children with C’s needs. Miss X would likely have been frustrated in later finding no fully qualified specialist teacher was available within that unit. And, while there was uncertainty, the lack of such a specialist teacher might have impacted C’s education despite the presence of other qualified teachers and support staff. I therefore found the fault I identified caused injustice.

Complaints handling

26. Miss X effectively made two complaints to the Council about its failure to secure a specialist teacher as set in C’s EHC Plan. First, Miss X complained as one of a group of concerned parents and then made a second complaint as C’s parent (see paragraphs 17 and 18). The Council, having replied to the parents’ complaint, did not reply to Miss X’s individual complaint.
27. It would have been good administrative practice if the Council had written to Miss X to let her know it considered its response to the parents’ complaint addressed her individual complaint. However, it did not do so. And, Miss X’s individual complaint raised specific points about the delivery of provision in C’s EHC Plan. So, the Council’s response to the parents’ complaint could not specifically address Miss X’s concerns about C and C’s education. The balance of the evidence also showed that, when Miss X further pursued her individual complaint, the Council did not meet its 20 working days response time target. Overall, the Council’s handling of Miss X’s individual complaint fell below acceptable administrative standards and included avoidable delay. I therefore found fault here.
28. The faults I identified in the Council’s complaints handling would likely have put Miss X to avoidable time and trouble. I therefore found Miss X was caused injustice because of the Council’s poor complaints handling.

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Action

29. To address the injustice arising from the identified faults in a proportionate appropriate and reasonable way, the Council agreed my recommendations to (within 30 working days of this statement):

• send Miss X a further written apology and make a symbolic payment of £100 in recognition of the avoidable time and trouble caused by its poor complaints handling; and
• make a symbolic payment of £300 in recognition of the avoidable distress and uncertainty caused by the lack of specialist teacher as specified in C’s EHC Plan.

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Decision

30. I found fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman