Summary: The Council failed to provide Mrs X’s child, Y, with specialist provision from their Education, Health and Care (EHC) Plan. The Council has agreed to apologise to Mrs X for the distress and frustration the matter caused her and make her a symbolic payment for the specialist provision Y did not receive.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with specialist provision as outlined in their Education, Health and Care (EHC) Plan between September 2024 and February 2025. She said this negatively affected Y’s social, emotional and learning development and it caused her distress. She wants the Council to acknowledge it was at fault, apologise to her and provide her with a financial remedy for the injustice caused.

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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. 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.
4. 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(1), as amended)
5. 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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How I considered this complaint

6. I spoke with Mrs X and considered information she provided.
7. I considered information provided by the Council.
8. I considered our ‘Guidance on remedies’.
9. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

10. Some children and young people with special educational needs and disabilities will have an EHC Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. It is set out in sections which include Section F, the special educational provision needed by the child or the young person.
11. 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)

Background

12. Mrs X’s child, Y, has a neurodevelopmental condition and has had an EHC Plan since 2018. In July 2024, the Council issued a final amended EHC Plan which included specialist provision in Section F such as:
• full-time 1:1 support from a learning support assistant;
• reading comprehension through small group (4-5 students) intervention once a week;
• social communication group twice a week, to be reviewed termly by SALT;
• Lego therapy at least once a week and to be reviewed termly by SALT;
• emotional regulation group once a week;
• comic strip intervention once a week; and
• a communication system between Mrs X and the School such as a diary.
13. In September 2024, Y started their secondary school placement at a mainstream school.

What happened

14. At the beginning of November 2024, Mrs X complained to the Council and said Y had not received the specialist provision in paragraph 12.
15. In mid-November 2024, the Council responded to Mrs X and said:
• although Y had support at the School, Y did not have full-time 1:1 support in place;
• Y did have reading comprehension in place however, Y attended the sessions with 15 students and not with 4-5 students, as specified in their EHC Plan;
• social communication group was in place however, SALT had not yet reviewed the provision;
• Lego therapy was not yet in place. It said the adult due to deliver this provision was currently attending training which would enable them to deliver it;
• the School did not have an emotional regulation group set up. Instead, it had been seeking advice and guidance from a local specialist school;
• comic strip intervention was not in place; and
• there was a variety of options available at the School to put in place a communication system with Mrs X. The Council advised Mrs X to speak with the School to set up the most suitable option.
16. The Council informed Mrs X of the following actions to put things right:
• the School had submitted a request to increase funding for it to commission full-time adult support for Y, as outlined in their EHC Plan. It said a panel would consider the request in November 2024 (the Council’s panel later agreed to increase the funding); and
• the School would confirm with the Council as soon as possible whether its allocated therapist could deliver the comic strip intervention. If it was not possible, the Council would seek an external therapist to deliver this provision.
17. Mrs X was unhappy with the Council’s response and asked it to investigate her complaint further. She said Y was becoming extremely frustrated due to the Council not providing the specialist provision. Mrs X also said the Council was not providing the following specialist provision:
• SALT programme twice a week to be delivered by the learning support assistant either 1:1 or within a small group. The programme would be devised by a therapist; and
• OT programme devised by a therapist and adapted by the School to deliver this provision. The programme would be delivered through activities to help Y develop independence and life skills.
18. At the beginning of February 2025, the Council responded to Mrs X and said it would not investigate her complaint further as it believed it had already responded to her complaint in full and Mrs X had not provided new information. However, the Council said:
• from the start of January 2025, Y had 1:1 full-time support in place;
• from this term, Y now had the option to attend intervention groups; and
• SALT and OT provision was already in place but as Mrs X wanted Y to attend other lessons, the School required her permission for when the therapy sessions could take place. The Council advised Mrs X to contact the School to arrange the sessions.
19. Mrs X remained unhappy and complained to us in February 2025. Mrs X provided us with an update on the following specialist provision:
• since January 2025, Y had 1:1 support from a learning support assistant;
• since February 2025, Y was receiving reading comprehension;
• since February 2025, social communication was being reviewed by SALT;
• since February 2025, Y started attending an emotional regulation group; and
• since February 2025, Y started receiving the SALT programme.
20. In response to my enquiries, the Council did not provide supporting evidence that the specialist provision of reading comprehension, social communication, Lego therapy, emotional regulation, comic strip intervention, a communication system with Mrs X and the SALT and OT programmes was in place between September 2024 and February 2025.

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Findings

21. Mrs X said the Council had failed to provide the specialist provision outlined in Y’s EHC Plan between September 2024 and February 2025 which was approximately a term and a half of school. The Council has not provided supporting evidence to show the specialist provision was in place during this time. On balance, it is more likely the specialist provision was not in place. Therefore, the Council was at fault as it had a duty to ensure Y received the specialist provision set out in their Plan.
22. The fault caused Y to miss out on specialist provision which negatively affected their learning and social development. It also caused Mrs X distress and frustration. I have made a recommendation to the Council to remedy the injustice caused to Y and Mrs X. I have considered Y started to receive 1:1 support from a learning support assistant in January 2025.
23. We recently made a similar decision about this Council where we recommended the Council carry out service improvements in relation to its duty to ensure it delivered specialist provision outlined in EHC Plans. I have therefore not made any service improvements. We will monitor the Council through our casework.

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Agreed Actions

24. Within one month of the final decision, the Council will:
• provide Mrs X an apology for the distress and frustration it caused her by failing to deliver Y with specialist provision outlined in their EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended in my findings.
• make a payment of £1200 to Mrs X for the specialist provision Y did not receive between September 2024 and February 2025.
25. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

26. I have now completed my investigation. The Council was at fault. It has agreed to action the recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman