Summary: The Council was at fault for not ensuring the correct toilet facility was in place for a child. This caused some injustice as the child did not have access to the correct toilet facilities. The Council agreed to apologise.

The complaint

1. Mrs X complains the Council failed to ensure a suitable toilet was in place for her son at his school.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. As part of this investigation I considered the information provided by Mrs X. I discussed the complaint over the telephone with Mrs X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mrs X and the Council and considered comments received in response.

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What I found

Education, Health and Care plan

5. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
6. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
7. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). 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)
8. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

What happened

9. Mrs X’s son Y has special educational needs. This includes difficulties with fine motor skills, limited hand strength and control.
10. In May 2019 Y received a report from an Occupational Therapist which recommended he needed a specialist Closomat toilet with a wash and dry function. The toilet also needed an swipe pad to help Y activate the cleaning function. The Occupational Therapist included quotes in their report to install this specialist toilet in Y’s home and school. The quotes included a swipe pad facility to activate the cleaning function.
11. In September 2020, Y moved to a new school placement. He received a new EHC plan in October 2020 which said he needed a specialist toilet. This was listed in section F of the EHC plan, under Y’s special educational provision.
12. The Council said it was aware Y’s new school had a Closomat toilet in place when he started and no concerns were raised about the toilet at the time.
13. The Council carried out an annual review of Y’s EHC plan in April 2021 and said no concerns were raised about toileting issues as part of this.
14. In October 2022, Mrs X said she visited the school and noticed that the toilet in place for Y was not the correct toilet as it did not have a swipe pad installed. As a result, Mrs X complained to the Council and said Y was not getting the correct adjustments as the school had not installed the correct toilet.
15. The Council did not initially log this matter as a complaint and told Mrs X to complain to Y’s school. The Council did however contact Y’s school to see if a swipe pad could be fitted, but the toilet at the school was too old to have this function installed.
16. Between October 2022 and December 2022, the Council contacted Y’s school and agreed to reimburse the school the cost of fitting a new Closomat toilet with a swipe pad function. In December 2022, the new toilet was installed at Y’s school.
17. The Council responded to Mrs X’s complaint in January 2023. The Council said it contacted Y’s school and funded a new toilet at the school.
18. Mrs X remained dissatisfied and complained to the Ombudsman.

Analysis

19. The Council was at fault for failing to ensure suitable toileting facilities were available for Y when he started school in September 2020. The Occupational Therapy report said Y needed a swipe pad so he activate the cleaning function, however this was not installed onto the toilet at his school.
20. While I recognise the Council said it knew a Closomat toilet was available, it did not check that the correct type of toilet was in place for Y and assumed this toilet was suitable.
21. When Mrs X complained to the Council, it initially told her to approach Y’s school about this as the complaint was for the school. This was fault. As toileting facilities were included Y’s EHC plan as part of the section F provision, it was for the Council to ensure this was in place.
22. As I have found fault I need to consider what injustice this caused. The Council is of the position that Y was able to use the toilet independently following feedback from the school. Mrs X said Y has developed chronic constipation as a result of not having the swipe function on the toilet. From the evidence seen, there were no issues or concerns raised about the suitability of the toilet until October 2022, despite an annual review of Y’s EHC plan taking place within this timeframe. As part of the annual review the school reported Y was able to walk to and from the toilet and use it independently. On balance I am satisfied that the injustice caused was limited and once the Council were made aware of the issue it worked with the school to fund an new toilet for Y.

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Agreed action

23. Within one month of my final decision the Council agreed to provide Mrs X with a written apology for the faults identified.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I have completed my investigation and found the Council was at fault and this caused some injustice. The Council should apologise to Mrs X to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman