Summary: There was fault the Council did not secure all the required provision for Mr X’s child’s Education, Health, and Care plan for when it was due to start. We would describe this fault as a service failure, and it caused Mr X an injustice, because it left him with avoidable uncertainty about how this delayed provision affected his child’s progress. The Council have already provided a remedy for this injustice during our involvement.

The complaint

1. Mr X complained the Council failed to secure special education provision (SEP) as outlined in an Education, Health, and Care Plan (EHCP) issued in June 2022 for his child (Y).
2. Mr X said because of fault by the Council, he now has uncertainty about Y’s overall progress in both social skills and emotional regulation. Mr X said this is a significant concern because Y is due to transition to secondary school.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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 process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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.
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(i), 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 the information Mr X provided.
8. I considered the Council’s comments and the documents it provided.
9. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

EHC Plan 

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. 

Maintaining the EHC Plan

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)
12. 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.
13. In R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348, a judicial review about the Council’s s.42 duty, the Court rejected the Council’s argument it only had to put provision in place within a reasonable time rather than immediately. The Court found the five-week period built into the SEND Regulation 44 following a Tribunal decision to issue an amended EHC Plan was designed to allow time for implementation and the bulk of the child’s provision, at least, should have been in place within that time.

What happened

14. In late May 2022, the SEND Tribunal ruled on Mr X’s case involving Y’s EHCP and in late June, the Council issued a final EHCP. In so far as is relevant to this complaint, Section F (SEP) outlined Y’s additional needs including:
• Weekly speech and language therapy including group participation;
• autism outreach support, and;
• the development of individual education plans.

Speech and language therapy provision

15. After the tribunal ruling, but before the Council had issued a final EHCP, Y’s existing speech and language therapy (SLT) provider said they would no longer be able to support Y, because of staff vacancies. The evidence shows the Council had secured their continued support, up until the end of the summer term.
16. In late June, another provider, Company A, wrote to the Council agreeing it would provide Y’s SLT. Following this, the Council wrote to Mr X with the final EHCP and told them Company A would provide Y’s SLT.
17. At the same time, Company A then advised the Council it was now not able to deliver Y’s SLT until the start of the academic year in September 2022.
18. In July 2023, Mr X complained about this missed provision, saying the Council had not secured it in line with the final EHCP. Mr X also said the associated weekly group participation started later than it should have done.
19. Following this, the Council investigated the matter and it asked Company A to clarify the provision it had put in place at the Council’s request. After this, in reply, the Council gave Mr X an explanation for its actions after the 2022 final EHCP. This included an explanation of where it considered weekly group sessions had taken place.
20. Mr X subsequently made another complaint about this, which included how the Council had secured SLT provision, in particular the weekly group participation. The Council accepted this had not started until the second half of the Autumn term. The Council upheld Mr X’s complaint and paid him £920 as a financial remedy for this.

Autism outreach support

21. The Council provided me with information that shows the support it commissioned and which a provider delivered in 2022. In response to Mr X’s later complaint about this, the Council responded and gave Mr X a detailed breakdown of the support delivered.

Individual education plans

22. Y’s EHCP (Section F) said they would need to have an individual education plan (IEP) subject to a review each term. Section F also said Mr and Mrs X could comment on these plans.
23. In June 2023, Mr X complained the Council had not put properly secured this provision. He said a plan that Y’s school developed in November was insufficient and this meant, in his view, that Y’s IEP and reviews were below expectations.
24. The Council provided me with information that shows it was present at a review of Y’s EHCP in July 2022, shortly after it had issued the final EHCP. That review shows other education practitioners involved in Y’s special educational needs were also present, including representatives of the school.

My findings

Speech and language therapy provision

25. The Council had initially secured a provider to support Y with their SLT provision, but who then subsequently said they were not able to start until the new term in September. This should have started in early July, and this was fault. Because of this then starting late, part of the provision (group participation) also did not start until later than it should have done.
26. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent, or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant, despite the best efforts of the Council. This still amounts to fault. We may recommend a remedy for any injustice.
27. I cannot on balance say what the injustice to Y will have been, because of the variables in a child’s progress, nonetheless, it will have caused an avoidable uncertainty in Mr X’s mind about this. In view of the Council’s offer of a financial remedy to Mr X for matters related to this provision, I do not see there is any unremedied injustice here.

Autism outreach support

28. On the evidence I have seen, there is no fault in the provision the Council secured, or in how the Council then investigated and responded to Mr X’s concerns here.

Individual education plans

29. The Council have a duty to ensure provision is in place. It was present at Y’s EHCP review, together with education practitioners and this occurred shortly after the Council had issued Y’s plan. On balance, I find the Council secured this provision.
30. The first time the Council was aware there was any concern, was not until after the next review in June 2023, when Mr X made a complaint. The Council looked into Mr X’s complaint, and it was aware Mr and Mrs X had been in contact with Y’s school about this from late 2022 onwards, and could have approached the Council at that time.

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Final decision

31. I have completed my investigation with a finding of fault caused by a service failure as highlighted at paragraph 25, but the Council have already remedied any injustice this fault caused Mr X during our involvement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman