Summary: There was fault in the Council not securing the special education provision as outlined in an Education Health and Care plan for Miss X’s son. The fault meant Miss X’s son was without this provision, and it will have caused Miss X distress, because of the uncertainty of future education provision. The Council has agreed to pay Miss X a financial remedy to properly recognise the injustice of missed education provision.

The complaint

1. Miss X complains that the Council did not provide the special education provision (SEP) after it issued an Education, Health, and Care plan (EHCP) for her son (Y).
2. Miss X says this meant Y was without this support in the year before he was due to start school.
3. Miss X also says this has left her with the uncertainty of Y’s future education and had to give up work.

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What I have and have not investigated

4. Miss X told me Y is still not receiving SEP. I have only investigated the period after the Council issued the EHCP in September until when Y was compulsory school age (CSA), in February.

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The Ombudsman’s role and powers

5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

8. I spoke to Miss X and considered the documents she sent.
9. I read the information the Council sent to me.
10. I considered the Special Education Needs and Disabilities (SEND) code of practice, which has guidance on early years provision.
11. Miss X and the Council had the opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should have happened

12. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this.
13. The council has a duty to secure the specified SEP in an EHCP for the child or young person (Children and Families Act 2014, section 42). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. The SEND code gives direction to councils in relation to early years provision. It emphasises there should be no delay in securing the SEP because it may lead to further learning difficulties and behavioural difficulties.

What happened

15. The Council issued a final EHCP for Y in September 2022. In section I, the EHCP did not name a school, but said Y would attend a special school. The EHCP also said the Council was looking for a suitable placement.
16. The Council tried to locate a placement in line with Miss X’s preferences before it issued the final plan. Miss X did not appeal the decision not to name a school.
17. The EHCP said Y would need support, which included speech and language therapy, adult led tasks, and therapeutic strategies to help them achieve independence.
18. Miss X told me Y’s nursery did not have a place for him beyond August and he then had to leave. Miss X said she had to stop working to care for Y, because he had no provision.
19. The Council provided information that Miss X had ended Y’s nursery place, leading to there no longer being a place available to him.
20. In September, after Miss X made a complaint, the Council said it had not been able to identify a suitable school. The Council offered to fund a suitable childminder to support Miss X.
21. In January, Miss X escalated her complaint to stage two of the Council’s complaint procedure. The Council said it would consider her complaint, because it still had not identified a school, or provided any of the SEP outlined in Y’s EHCP.
22. The Council did not consider if it could provide any of the SEP remotely other than two sessions of speech and language therapy.
23. In its stage two response, the Council accepted it had not been able to find a school place for Y. The Council said this was partly because there was a shortage of staff at a school where they had planned to carry out an assessment on Y.

My findings

24. The council has a duty to secure the special educational provision in an EHC plan for the child or young person. The Council has accepted it has not done this and this is fault. The Council gave Miss X an explanation why it was not able to secure the SEP.
25. In the complaint correspondence, the Council offered Miss X a financial remedy for her time and trouble in following up what the Council were doing. It also offered to ensure the service area kept Miss X regularly updated. This is an appropriate remedy for this injustice to Miss X.
26. The fault in not providing the SEP has caused Y an injustice because of the missed provision. The Council has agreed to pay a financial remedy to properly recognise the injustice to Y in his missed SEP.

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Agreed action

27. Within four weeks, the Council has agreed to:
• pay Miss X £2,000 to recognise the missed EHCP provision for Y.
• review whether any provision is available to Y for the period he is without a school place.
28. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

29. There was fault in the Council’s actions which caused Miss X an injustice.

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Investigator's decision on behalf of the Ombudsman