Summary: Mrs X complained her child’s school removed the one-to-one support for her child detailed in their Education, Health and Care Plan and the Council failed to restore this. We found fault with the Council failing to provide Mrs X’s child one-to-one support from September 2024 until April 2025. The Council agreed to apologise to Mrs X, pay her £500 for her child’s lost provision, £100 for the inconvenience and frustration its delays caused and confirm it will rebate her the cost of paying a deposit to her child’s new school on receipt of evidence of this cost.

The complaint

1. Mrs X complained her child’s school removed the one-to-one support for her child in September 2024 despite this being in their Education, Health and Care Plan. Mrs X says the Council failed to restore this provision or provide a suitable school placement that could meet her child’s needs.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
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(i), 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 considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and regulations

EHC Plans

8. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
9. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
10. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
11. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
13. Where a council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
14. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
16. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
17. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Council complaints policy

18. The Council operates a two stage complaints process.
19. The Council’s policy says at Stage 1 it will acknowledge a complaint within five working days and provide a full response within 10 working days of issuing the acknowledgement. The Council’s policy says where complaint issues are more complex it will aim to respond within 20 working days of the acknowledgement.
20. If a person is dissatisfied with the Stage 1 complaint response, they can request consideration of their complaint at Stage 2. The Council says if there are grounds for further investigation it will tell a person an expected complaint response timescale. Otherwise, the Council will direct a person to the Local Government and Social Care Ombudsman.

What happened

21. Mrs X’s child, who I shall refer to as Y, had an EHC Plan. This EHC Plan detailed in Section F that Y would have a “one-to-one adult available (whilst in mainstream), to support concentration and attention to enable Y to engage in learning tasks”. Y’s school, School 1, put this one-to-one support in place for the academic years 2022/2023 and 2023/2024 as funded by the Council.
22. In July 2024, School 1 told Mrs X that it was removing Y’s one-to-one support from September 2024 and would instead be moving to a “team-based approach”. Mrs X disputed this with the school because the Council provided direct funding for Y’s one-to-one support. Mrs X also told the Council about School 1’s plan and asked it for support.
23. On 22 July 2024, Mrs X wrote to the Council to advise she had logged a complaint with it about the removal of Y’s one-to-one provision.
24. In August 2024, the Council told Mrs X it would speak with Y’s school once it reopens in September 2024. The Council said it would ensure School 1 put one-to-one support in place for Y until July 2025 as this is what it was funding.
25. Y returned to school in September 2024 without one-to-one support in place. Mrs X contacted the Council to advise about this. The Council contacted Y’s school to seek clarification but it failed to confirm it was providing one-to-one support for Y. The Council arranged a Team Around a Child (TAC) meeting with School 1 and Mrs X for 2 October 2024 to discuss this matter.
26. On 25 September 2024, Mrs X made a follow-up complaint to the Council about School 1 failing to provide one-to-one support for Y as detailed in the EHC Plan. Mrs X also complained about the Council failing to ensure School 1 put this support in place. The Council acknowledged Mrs X’s complaint on 26 September 2024.
27. On 2 October 2024, Mrs X and the Council confirmed to Y’s school that Y should always have one-to-one support available. School 1 said it was taking a timetabled approach to supporting Y with different people being available for one-to-one support at different times. The Council asked Y’s school to tighten Y’s timetable to ensure it showed who was Y’s dedicated one-to-one support at all times. The Council arranged for an advisory teacher to visits School 1 and observe Y.
28. Following the meeting, School 1 provided the Council a breakdown of the timing of support available for Y. Mrs X contacted the Council and disputed that this was one-to-one support as it included a whole class Teaching Assistant (TA) as Y’s dedicated support at various times. Mrs X said School 1 was not using the funding from Y’s EHC Plan specifically for Y and that Y’s EHC Plan had not changed so the level of support should not have changed.
29. On 16 October 2024, the Council told Mrs X it made it clear to School 1 the Council was providing funding for an additional adult for 32 hours each week to provide one-to-one support for Y. The Council said it considered School 1’s timetable showed there was an adult available to support Y throughout each day and this met the one-to-one adult support provision. Mrs X responded to the Council to dispute this and said the school is taking a “team based” approach and not a “job-share” approach. This meant the people supporting Y were supporting the whole class or groups of pupils rather than one-to-one and School 1 funded this through Y’s EHC Plan funding.
30. The Council provided a Stage 1 complaint response on 18 October 2024. The Council said:
• It acknowledged there had been a delay in responding to Mrs X’s complaint and apologised for this.
• It also acknowledged it failed to speak with School 1 in a timely manner.
• It upheld Mrs X’s complaint about School 1 not providing the support as detailed in Y’s EHC Plan since September 2024. It is working with Y’s school to ensure it provides Y’s EHC Plan as specified.
31. On 22 October 2024, Mrs X asked the Council to consider a placement for Y at a different school.
32. On 31 October 2024, School 1 told the Council it had stopped the team-based approach and it was now using additional adults to support Y on a timetabled approach.
33. On 7 November 2024, the advisory teacher attended School 1 to assess Y.
34. School 1 held an annual review for Y’s EHC Plan on 12 November 2024. Within the annual review meeting notes it detailed Mrs X’s request for a specialist setting for Y. The notes also confirmed that Y “is supported in class by 1:1, small group”.
35. Mrs X sought consideration of her complaint at Stage 2 on 24 November 2024. Mrs X said that while the Council had accepted Y did not receive the correct support and delayed handling this matter; it had not resolved the complaint. Mrs X asked for the Council to consider transferring Y to another school.
36. On 4 December 2024, the advisory teacher completed their report. The advisory teacher said:
• They had observed Y in a reading and a maths lesson.
• “there was not an additional adult working with this small group” that contained Y in the reading lesson.
• They were told the class teacher had been supporting this small group before they arrived to observe.
• During the maths lesson Y “was supported by the TA in the small maths group”.
37. The Council confirmed on 10 December 2024 it needed to arrange for an Educational Psychologist to decide on the most appropriate provision for Y.
38. On 12 December 2024, the Council decided to amend Y’s EHC Plan and issued an amendment notice to Mrs X.
39. The Council issued a Stage 2 complaint response on 18 December 2024. The Council said:
• It accepted School 1 was failing to provide the provision detailed in Y’s EHC Plan and accepted that Y now needed a specialist setting.
• School 1 agreed to provide one-to-one provision following the meeting on 2 October 2024 and it was responsible for this.
• It has already apologised for failing to ensure Y’s school provided the Section F provision for Y.
• It had agreed to amend Y’s EHC Plan and would be consulting with schools for a new placement for Y.
40. In December 2024, Mrs X chased the Council to arrange for the Educational Psychologist as promised.
41. In January 2025, the Council liaised with Mrs X’s chosen school, School 2, for Y. School 2 confirmed it could potentially accept Y subject to three taster days. The Council arranged these taster days for the end of February 2025 and told Mrs X. The Council said because of the taster days it would not be able to meet the statutory deadline for producing Y’s EHC Plan. The Council asked if Mrs X would rather it produces the EHC Plan naming mainstream to meet the deadline or wait for completion of the taster days with the hope of naming School 2. Mrs X asked the Council not to issue the Final EHC Plan until after the taster days.
42. Mrs X paid a deposit of £575 to a private Educational Psychologist to assess Y to support amendment of Y’s EHC Plan. Mrs X did not follow through with the full assessment with the Educational Psychologist.
43. Throughout February 2025, Mrs X and the Council liaised about what should be named in Section I of Y’s EHC Plan. Mrs X asked the Council to issue the Final EHC Plan sooner but stating a “specialist placement”. The Council decided to issue Y’s Final EHC Plan naming mainstream in Section I on 12 February 2025.
44. At the end of February 2025, Y had the three taster days at School 2 which offered a place for Y. Mrs X paid a £550 payment to School 2 to secure Y’s placement.
45. On 6 March 2025, School 2 told the Council it could meet Y’s needs.
46. On 13 March 2025, the Council agreed to name School 2 in Y’s EHC Plan. Following discussions with both Mrs X and School 2 about the content of Y’s EHC Plan, the Council issued an amended Final EHC Plan on 1 April 2025 naming School 2 in Section I from 22 April 2025.

Analysis

EHC Plan provision

47. A council can delegate delivery of a child’s Section F EHC Plan to other organisations, such as schools, but it ultimately remains responsible for ensuring any delegated bodies deliver the provision. This does not mean a council needs to keep a watching brief on the delegated bodies. But, it should check in at least yearly on the delivery of the provision, usually through annual reviews, and investigate complaints by a person that provision is not being delivered.
48. Mrs X raised concerns with the Council in July 2024 that School 1 was going to stop providing the EHC Plan provision of one-to-one support for Y. The Council acted correctly, albeit delayed as admitted by the Council, to investigate whether School 1 was providing the one-to-one provision as detailed in Y’s EHC plan.
49. In the Council’s Stage 1 complaint response, it accepted School 1 had failed to provide one-to-one provision for Y since September 2024. Since the Council has accepted School 1 failed to provide the correct provision from the start of term to 18 October 2024, no further investigation is needed.
50. However, School 1 told the Council on 31 October 2024 it was now providing one-to-one support for Y. This statement by School 1 is not supported by the evidence after this date. When the advisory teacher visited School 1 on 7 November 2024 they confirmed that in both a maths lesson and a reading lesson that Y was not receiving one-to-one support. The advisory teacher noted at best School 1 was providing small group support. The annual review meeting notes from 12 November 2024 also detail contradictory information from School 1 saying it is providing “1:1” but also “small group” support for Y. This shows from both School 1’s own admission and the advisory teacher observations that School 1 was not providing one-to-one support despite telling the Council this.
51. It is not the role of the Ombudsman to investigate the actions of schools or question its delivery of Y’s EHC Plan. However, the responsibility for provision of child’s EHC Plan remains with the Council. The Council failed to follow up with School 1 about its failure to deliver one-to-one provision despite receiving the advisory teacher report, the annual review notes and further contacts from Mrs X. This was fault.
52. Additionally, the Council had both the advisory teacher assessment report and the annual review notes available when it issued its Stage 2 complaint response. The Council also said in its Stage 2 complaint response that since 2 October 2024 the Council had promised to provide one-to-one support and it was School 1’s responsibility. This information provided by the Council is misleading. While School 1 had a responsibility to deliver Y’s EHC Plan as delegated by the Council, it was still fundamentally the Council’s responsibility to ensure this was in place.
53. There is no evidence that School 1 provided the correct level of one-to-one support for Y from September 2024 through to April 2025, when Y moved to a new school. The Council was at fault for failing to ensure School 1 correctly used the funding it provided for Y’s EHC Plan provision for its intended purpose. This meant Y went two full terms without the correct one-to-one support in place. While Y went without the correct provision, School 1 did provide some support for Y in “small groups” which while not the correct provision, does go someway to mitigating the impact on Y.
54. The Council should apologise to Mrs X and pay her £500 for Y’s missed provision.

EHC Plan review and school placement

55. School 1 completed an annual review meeting for Y’s EHC Plan on 12 November 2024 and shared this with the Council. This meant the Council had four weeks, until 10 December 2024, to decide whether it would cease, maintain or amend Y’s EHC Plan. The Council only decided to amend Y’s EHC Plan on 12 December 2024; this was two days outside the statutory timescales and was fault.
56. Following a decision to amend Y’s EHC Plan the Council had eight weeks to issue the Final amended EHC Plan for Y. This meant the Council had until 6 February 2025.
57. As part of the review process, the Council consulted with Mrs X’s chosen school, School 2. School 2 required three taster days for Y which would have resulted in the EHC Plan being finalised outside the statutory timescales. The Council liaised with Mrs X about this and decided to proceed with finalising Y’s EHC Plan on 12 February 2025 naming mainstream in Section I. This was a decision the Council was entitled to make even though it was consulting with a specialist school for Y. This gave Mrs X her appeal rights to the SEND Tribunal, should she have wished to engage these. I do not find fault with the Council’s overall approach. However, the Council did issue the amended Final EHC Plan 4 days outside the timescales; this was fault.
58. Overall, the Council took 6 days more than the statutory timescales in reviewing and producing an amended Final EHC Plan for Y. The Council should apologise for this delay. However, I do not consider such a delay justifies anything more than an apology as a delay of this length would not have had a significant personal injustice to either Mrs X or Y.
59. As part of the EHC Plan review process, the Council noted in December 2024 that it should get Educational Psychologist input. The Council failed to follow through on this despite Mrs X chasing it to do so. The Council has advised it decided it did not need to get Educational Psychologist input because the advisory teacher report provided enough information to enable it to update and amend Y’s EHC Plan. A council is not obliged to get Educational Psychologist input for a child’s EHC Plan and its rationale for not doing so here is logical. I do not find fault with the Council not following through with getting Educational Psychologist input.
60. Mrs X paid a £575 deposit to a private Educational Psychologist to complete an assessment of Y. However, Mrs X did not follow through with this assessment because the Council produced the Final EHC Plan in the meantime. The Ombudsman would only consider a council should provide a refund for a privately obtain report if the Council either asked a person to get it or used a report within production of a child’s EHC Plan. In the circumstances of Mrs X’s complaint, she chose to start getting this report herself without agreement from the Council. The Educational Psychologist also did not complete the report so the Council did not use the report to produce Y’s EHC Plan. As such, I cannot justify a rebate for this expense Mrs X incurred.
61. Following the taster days at School 2 and it confirming it would accept Y, the Council took less than four weeks to amend and re-issue a Final EHC Plan for Y. The Council has acted in an efficient manner at this point and I do not find fault.
62. While the Council has acted efficiently to amend Y’s EHC Plan, Mrs X paid a £550 to secure a placement for Y at School 2. Mrs X did this while waiting on the Council to name School 2 in Y’s EHC Plan. The Council has confirmed that it will provide a refund of this deposit Mrs X paid on receipt of evidence of this cost from Mrs X. This is a suitable offer from the Council since it named School 2 in Y’s EHC Plan it was responsible for securing this placement; Mrs X should not incur a cost for this.

Complaint handling

63. Mrs X lodged her first complaint with the Council on 22 July 2024. The Council failed to acknowledge Mrs X’s complaint until she followed this up with the Council on 25 September 2024. This delay of two months in acknowledging Mrs X’s complaint is fault.
64. Following the acknowledgement on 26 September 2024, the Council had until 24 October 2024 to issue a Stage 1 complaint response to Mrs X. The Council issued the Stage 1 response on 18 October 2024, meeting the Council’s timescales.
65. Mrs X sought consideration of her complaint at Stage 2 on 24 November 2024. The Council has no set timescale for a response at Stage 2. However, it issued a response with 20 working days which is a suitable timescale for response.
66. I do not find fault with the Council’s response timescales at either Stage 1 or Stage 2. However, the Council failed to recognise that Mrs X was making a formal complaint in July 2024 causing a two-month delay in the handling of this matter. This fault caused Mrs X inconvenience and frustration. The Council should apologise to Mrs X for its delays and offer her £100 as a symbolic payment for the injustice this fault caused.

Service improvements

67. The Ombudsman is aware that Somerset Council is currently undergoing a significant transformation programme for its SEND services following development of a SEND action plan. The Ombudsman is overseeing Somerset Council’s wider SEND strategic plan which includes the issues identified in this complaint. For this reason, I am not making any service improvements.

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Action

68. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mrs X and pay her £500 for failing to ensure Y received the correct one-to-one provision detailed in their EHC Plan for two full terms in the 2024/2025 academic year.
• Provide an apology to Mrs X and a payment of £100 for its delays in reviewing her child’s EHC Plan six days outside the timescales and for the two month delays in acknowledging her complaint.
• Confirm in writing it will refund Mrs X the £550 deposit she paid to School 2 to secure Y’s placement on receipt of evidence of this payment from Mrs X.
69. The Council should provide us with evidence it has complied with the above actions.

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Decision

70. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman