Summary: The Council was at fault as it delayed ensuring Ms X’s child Y received all the provision within their Education, Health and Care Plan and its communication was poor. The Council has agreed to apologise to Ms X and Y and to make a payment to acknowledge the distress and frustration this caused.

The complaint

1. Ms X complained the Council failed to secure all the provision set out in her child Y’s Education, Health and Care (EHC) Plan. In particular it failed to arrange vocabulary enrichment and narrative sequencing interventions which Y was meant to receive weekly. This impacted on Y’s communication skills and confidence and caused them distress and frustration. In addition, Ms X said the Council’s communication was poor which added to her frustration.

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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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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(1), as amended)
6. 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

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. I gave Ms X and the Council an opportunity to comment on a draft of my decision. I considered any comments before making a final decision.

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What I found

EHC Plans

9. 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.
10. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs;
• Section C: Health needs related to the child or young person’s SEN;
• Section D: Social care needs related to the child or young person’s SEN; and
• 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)  

What happened

12. In June 2024 the Council issued Y with an EHC Plan naming a college as the educational placement Y would attend. Section F listed provision which included a vocabulary enrichment intervention that teaches vocabulary and a narrative sequencing intervention. These were to be delivered by college staff for at least 20 minutes each on a weekly basis. Y started at the college in September 2024. Around this time the college spoke with the Council about the support Y required.
13. In mid-October the college told Ms X it had spoken with the Council which had a staff member who could train college staff to deliver the outcomes in the Plan.
14. The Council said it met with the college in October and December 2024. It has no notes of the meetings. It said the discussions included Y’s provision and ongoing support.
15. In mid-November 2024 the college emailed the Council asking about the interventions in the EHC Plan. The Council responded in late November 2024 asking it to clarify which parts of the Plan it could not deliver. The college responded the next day setting out the parts it needed support with.
16. In mid-December 2024 Ms X complained to the Council that Y had not received the vocabulary enrichment or narrative sequencing interventions set out in their EHC plan. She also complained she had no communication from the case worker to update her on delivery of this support.
17. The college’s request for support with delivering the vocabulary enrichment and narrative sequencing provision was referred to the Council’s SEN hub in January 2025. The Council’s SEN hub refused the referral in January 2025 as it said it did not meet its criteria. The Council says the initial referral lacked sufficient evidence to meet its eligibility criteria. After further input from the SEND team it agreed to overturn the decision and to provide coaching and specialist oversight.
18. The Council responded to Ms X’s complaint in late January 2025. It said the specifics of what was required was not shared with the Council until late November 2024 and there was then a short delay before it was actioned. It apologised for the delay. It said Y’s case worker had left and there was a period of time when Y was without an allocated worker which means issues were not addressed. It provided details of Y’s new case worker. It said the college was allocated funds to deliver Y’s EHC Plan and it could not privately commission a service. It said that once provision was available in college she may wish to speak with the college about whether additional hours could be offered to catch up on provision. Ms X remained unhappy and asked to go to the second stage of the Council’s complaints’ procedure.
19. Y started to receive the vocabulary and narrative sequencing interventions in their Plan in March 2025.
20. The Council responded in mid March 2025. It partly upheld that there was a delay in arranging provision. It said it was contacted by the college in late November 2024 which set out the parts of the Plan it needed support to deliver. The Council said it made a referral to the SEN hub but there was a delay in progressing this. It upheld her complaint regarding poor communication. In response to our enquiries it said it had changed its communication policy to ensure settings were notified of changes in case workers and can pass this information to parents.
21. Ms X says that Y is staying on at college for an extra four months to enable them to receive all the missed provision.

Findings

22. The Council accepts the college was in contact with it regarding Ys’s provision from October 2024. The Council failed to keep notes of its meetings with the college so I cannot know exactly what was discussed. However, on balance, I am satisfied the college was in contact with the Council much earlier than late November 2024 to try and arrange the provision in Y’s plan. The college requested support as it considered it could not deliver the provision without this. The Council has a non-delegable duty to ensure a child receives the provision in their Plan. The Council’s delay in supporting the college with this is fault and meant there was a delay in Y receiving the vocabulary enrichment and narrative sequencing they required.
23. Ms X says Y is staying in college an extra four months. This will enable Y to receive the provision they have missed out on because of the delay. However, the delay also caused Y and Ms X distress and frustration.
24. The Council has already accepted fault for its poor communication, which added to Ms X’s frustration. The Council has amended its policy to ensure settings are notified when caseworkers change. This should help prevent a repeat of the fault so I have not made a further recommendation.

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Agreed Action

25. Within one month of the final decision the Council has agreed to apologise to Ms X and Y and pay Ms X £200 to acknowledge the distress and frustration caused by the delay in arranging Y’s provision and for the poor communication. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice.
26. The Council should provide us with evidence it has complied with the above actions.

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Decision

27. There was fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman