The Investigation

The complaint

1. Mrs X says the Council failed to ensure the provision in her son Y’s EHC Plan was delivered. She says that Y is non-verbal and relies on Makaton to communicate, but between September 2023 and July 2025, not all of Y’s teachers were trained to the level of Makaton required by his Plan, meaning his needs were not sufficiently met during this period. Mrs X also raises concerns about the Council’s communication and handling of her complaint.

2. Mrs X says the Council’s actions caused significant distress and resulted in a loss of essential provision for Y, which she believes has negatively affected his educational development.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

4. 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 report.

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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Relevant law and guidance Education, Health and Care Plans

7. 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. 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.

8. 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).

9. 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 systems in place to:

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;

• check the provision at least annually during the EHC review process; and

• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Makaton

10. Makaton is a structured communication programme. It uses symbols, signs and speech to enable communication for those who cannot rely on speech alone. For non-verbal people, Makaton can be their main means of communication.

11. Makaton has four sequential levels. Levels one and two introduce the foundational signs and symbols that form the core vocabulary. These levels equip people to begin using Makaton in everyday settings. Levels three and four build on this progressively. They introduce more advanced vocabulary and conversational signing techniques. They also cover how to adapt Makaton to a person’s individual communication, including translation techniques.

Gestalt language processing

12. Gestalt language processing is a way of learning language. People who acquire language this way learn it in whole chunks or phrases, rather than as individual words. This allows them to draw on memorised scripts.

Total communication approach

13. The total communication approach is a framework that uses all available means of communication, rather than relying on any single method. It includes speech, signs, symbols, gesture, facial expression, pictures and writing. Makaton and gestalt sit within this framework. The aim of this approach is to use whichever combination of methods best suits the person.

The Council’s complaints policy

14. The Council aims to respond to complaints at stage one and stage two within 10 working days of acknowledging the complaint. It may agree an extension to this of no more than 10 working days.

What we have and have not investigated

15. We typically expect people to bring a complaint to us within 12 months of first becoming aware of an issue. Mrs X refers to matters from September 2023 in her complaint, and she first became aware that Y’s teaching staff were not suitably trained in Makaton in March 2024. She complained to the Council in May 2024 and approached us in June 2025. The Council did not respond to her complaint until July 2025. We have exercised discretion to investigate matters from March 2024 (Mrs X’s date of awareness) because Mrs X’s delay in referring her complaint to us was because of the Council’s delay in responding to her complaint.

How we considered this complaint

16. We have produced this report following the examination of relevant files and documents and interviews with the complainant.

17. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

Background

18. Y is autistic and has a social communication disorder diagnosis. He is non-verbal and uses gestures, Makaton and objects to communicate.

19. The Council issued Y’s EHC Plan in late September 2023 after a Tribunal order. Section F of Y’s Plan specifies that all teaching staff who work in Y’s classroom must be Makaton trained to level three to four. It further states that Y does not use spoken language and struggles to communicate with adults and peers, and that he requires ‘lots of support and intervention’. The Plan details that Y should receive one-to-one support.

What happened

20. As set out in section F of his EHC Plan, a speech and language therapist visited Y in school every two weeks to assess how he was communicating and engaging at school.

21. The speech and language therapist told Mrs X that they had concerns about the lack of Makaton use in February 2024. Mrs X witnessed the lack of Makaton when she visited the school in March.

22. In May, the speech and language therapist observed a classroom activity to see how Y used language and communicated with others in the group. A supply teacher was teaching Y on that day. The therapist noticed staff in Y’s classroom were not using Makaton with him. The therapist queried this and found the staff did not have suitable Makaton training.

23. Mrs X sent a stage one complaint to the Council in May. She said the Council was failing to meet Y’s needs, and it was failing to deliver the provision in his EHC Plan.

24. The Council acknowledged Mrs X’s complaint. Mrs X said she wanted the Council to bypass stage one and escalate her complaint to stage two of its process.

25. The Council emailed Mrs X in mid-May, following a phone call with her. It confirmed it had spoken to the school. The school was arranging the provision and would arrange Makaton training for the relevant staff. It said the school did have some Makaton trained staff. It also said Y’s class teacher now held a level three Makaton qualification.

26. In July, Mrs X asked the Council again to escalate her complaint to stage two, as it had still not issued a response to her stage one complaint.

27. The Council emailed Mrs X and asked whether any of the issues she had raised were outstanding.

28. Mrs X replied to confirm that the Council had still not resolved the issues. She said staff still did not have Makaton training to the correct levels. She said her last contact from the Council had been in May.

29. The Council held Y’s annual review in July. Mrs X told the Council again that it had not yet arranged his provision and his teaching staff were not Makaton trained. The Council then provided the agreed actions from the annual review. These included contacting the school to arrange Makaton training for teaching staff who would be working with Y from September.

30. Mrs X contacted the Council again in mid-September. She said it had still not contacted her about the issues since its email in May.

31. The Council replied to Mrs X the next day. It apologised that it had not yet resolved her complaint and asked her to outline which elements of Y’s EHC Plan it was still failing to deliver.

32. Mrs X responded and explained that Y’s EHC Plan required all teaching staff who worked with him to hold Makaton level three or four.

33. At the end of October, Mrs X emailed the Council again. She said it had still not put Y’s provision in place.

34. The Council emailed Mrs X at the beginning of November. It said it had spoken to the school and established the training schedule for the teaching staff. It said the class teacher now held level three in Makaton, two teaching assistants now held level two, and two further teaching assistants held level one.

35. Mrs X then sent a Pre-Action Protocol (PAP) letter towards the end of November. A PAP letter is formal notice that someone is considering judicial review proceedings.

36. In its response the Council accepted it had breached its duty and failed to deliver the provision. It said it previously thought the class teacher had a level three Makaton qualification, but this was the wrong information. The teacher was only trained to levels one and two. It said it was looking to rectify this and arrange training for the teacher and the teaching assistants.

37. Mrs X approached us in June 2025.

38. The Council issued a stage two complaint response in July. It said it had arranged and funded the relevant training for teaching staff, but staff absences and course cancellations meant the training had been delayed. It accepted this meant Y had no level four support until November 2024. It explained that from that point until April 2025, only Y’s class teacher held level four, and the teaching assistants did not have the required level of training. It said that by 10 July, all relevant staff would be trained to level four and would be ready for Y for the new term in September.

39. The Council offered Mrs X a payment of £7,500 for the missed provision.

40. Mrs X contested the remedy amount with the Council and pointed out that Y’s class teacher in 2024 was only trained to level two, not level four. She asked it to reconsider its remedy offer on this basis.

41. The Council responded at the end of July. It agreed to pay an additional £1,500 for the extra term, bringing the total remedy to £9,000.

Conclusions

Provision in Y’s EHC Plan

42. Y’s EHC Plan requires all teaching staff in his classroom, including the class teacher and teaching assistants, to have Makaton training from levels three to four. The Council’s duty to ensure the provision set out in the EHC Plan was delivered was non delegable and absolute.

43. We expect councils to check provision is in place when they issue a final EHC Plan, check again at annual reviews and investigate concerns that provision is not in place.

44. The Council said it became aware in May 2024, when Mrs X complained, that Y’s teaching staff were not trained to meet his needs. However, given it issued Y’s EHC Plan in September 2023, it should have had a process to ensure the provision was in place sooner. Even taking the date of awareness as May 2024, the Council still had time, and a clear opportunity, to ensure that all relevant staff were trained before Y began the next academic year in September 2024. It did not do so.

45. The Council told us the delay in training staff was due to staff absences and training course cancellations. However, that does not excuse the delay. The Council should have sought alternative training providers rather than allowing the matter to drift. Its failure to do so prolonged the period during which Y’s needs went unmet. This was fault.

46. The Council’s failures were prolonged. From March to July 2024, Y’s class teacher achieved a level three qualification in May 2024. None of the other teaching staff held a level three qualification or above at any point. In Y’s second year, the class teacher did not reach level three until late January 2025, four months into the academic year. Only one teaching assistant achieved level three but this was in late June 2025, towards the end of the academic year.

47. The training was delivered in staggered increments, meaning staff were still working toward the required qualification while already in the classroom with Y. It was only when he entered his third year that all teaching staff were trained to the correct level.

48. The injustice caused by this fault is significant. The Council told us that the impact on Y and his ability to communicate with teaching staff was limited because staff were trained in gestalt language processing, and a total communications approach was in place. However, this does not excuse the Council’s failure to put the provision in place for the following reasons.

49. First, the EHC Plan specified Makaton as a required element of Y’s provision. The Council’s duty to deliver that provision was non-delegable and absolute. The use of other methods of communication did not mean the duty was met. The issue is not whether communication was possible, but whether the Council delivered what it was required to deliver. It did not, and Y’s needs were unmet.

50. Second, Makaton and gestalt language processing are fundamentally different. Makaton is a form of communication which combines symbols, signs, and speech. It supports communication for non-verbal people. Gestalt language processing describes a pattern of language acquisition, as explained above, and is not a communication system in the same way Makaton is. Staff trained in gestalt but not Makaton could not communicate with Y in the way his EHC Plan required. Further, the total communication approach is a framework that includes both methods and is not in itself a form of communication.

51. Third, Y is non-verbal. For him, Makaton is not additional support, but part of the way he communicates. Without teaching staff fully trained Y lost the opportunity to develop his ability to use Makaton to communicate. This is a significant injustice.

52. The Council’s failures also caused Mrs X significant distress, knowing Y was in a setting where staff could not communicate with him as he needed. She was also left uncertain about the impact on Y’s development and with no clarity about when the situation would be resolved.

Communication

53. The Council’s communication with Mrs X was poor throughout. It took over a year for the Council to issue any formal response to her complaint while it engaged in responding to her PAP. This was fault which left her unclear about the progress of her complaint, or whether it was proactively resolving the issue. This uncertainty added to her distress, particularly as Y continued to go without his provision throughout this period.

54. The Council also failed to keep Mrs X informed about what it was doing in the background. It seems to have only sent updates when Mrs X chased it. In May 2024, the Council told Mrs X it had spoken to Y’s school and was resolving the issue. When Mrs X chased again in July, the Council asked her whether matters had been resolved and which parts of Y’s EHC Plan it was still failing to deliver. The Council should have known the answer to those questions. That it asked Mrs X to account for what provision Y was or was not receiving reflects the Council’s continuing failure to oversee its own statutory duties.

Remedy

55. The Council paid Mrs X £9,000 for the missed provision from September 2023 to July 2025. Our investigation covers the missed provision from March 2024 to July 2025. The Council’s remedy for this period equals £6,450.

56. We have considered our remedies guidance, the circumstances of the case, and the scale of the injustice. The Council’s payment is welcome, but it does not fully address the extent of the injustice to Mrs X and Y.

57. Our published Guidance on remedies suggests a symbolic remedy of up to £2,400 a term for the most significant injustice. We consider the injustice in this case is meaningful, which justifies payment at the higher end of our guidance.

58. From March to July 2024, Y’s teacher achieved a level three qualification in May 2024. None of the other teaching staff had the required qualification. We recommend £2,000 a term from March to May 2024 and £1,800 a term from May to July 2024.

59. In the academic year from September 2024 to July 2025, no staff member was trained to level three or above until late January 2025. We therefore recommend a further £2,000 a term from September 2024 to late January 2025. The class teacher then obtained their level three and four qualifications for the remaining two terms. One teaching assistant achieved their level three qualification in late June 2025 and their level four qualification in July 2025 (at the end of the term). None of the other teaching assistants working with Y had the required qualifications. We therefore recommend a further £1,600 for each term.

60. This totals £8,025. As the Council has already paid Mrs X £6,450 to cover March 2024 to July 2025, we recommend a further payment of £1,575.

Recommendations

61. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

62. In addition to the requirements set out above, to remedy the injustice caused to Mrs X and Y within one month of the date of this report the Council has agreed to:

• apologise to Mrs X for the injustice caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology we have recommended in our findings; and

• pay Mrs X £1,575 to recognise Y’s loss of opportunity to receive the provision in line with his EHC Plan between March 2024 to July 2025.

63. Within three months of the date of this report the Council has agreed to:

• review its procedures to ensure it has a robust process in place for checking provision specified in an EHC Plan is arranged from the start of a new or amended Plan; and

• create an action plan setting out how it is reducing the delays in Makaton training and increasing its commissioning of trainers.

64. The Council should provide us with evidence it has complied with the above actions.

Decision

65. We find fault by the Council which has caused injustice to Mrs X and Y. The Council has agreed to take the action identified in paragraphs 62 to 63 to remedy that injustice.

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