Summary: Mrs X complains the Council has not properly dealt with her daughter Y’s Special Educational Needs (SEN) properly. The Council delayed issuing a final Education Health and Care (EHC) Plan, did not provide SEN provision and direct payments were delayed. Mrs X suffered avoidable distress and Y lost educational opportunities. The Council should apologise, pay Mrs X £200 for avoidable distress, £2400 for Y’s missed education and provide an action plan.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not properly dealt with her daughter’s special educational needs because it:
• delayed in issuing a final EHCP following the tribunal.
• failed to provide SEN provision as set out in EHCP section F.
2. Mrs X says she has incurred financial loss, her daughter has lost special educational needs provision and her future education and attainment has been affected.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I spoke to Mrs X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

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)

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.

What happened?

9. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
10. Mrs X appealed to SEND Tribunal about Y’s EHC Plan and its decision was issued in January 2023.
11. Mrs X received a copy of Y’s EHC Plan in May 2023.
12. Mrs X complained to the Council that it was not making all the necessary SEN provision for Y.
13. The Council upheld the majority of Mrs X’s complaint.

Analysis

14. The Council has accepted that it is at fault because it:
• sent a copy of Y’s final amended EHC Plan to Mrs X using the wrong email address in February 2023;
• did not maintain oversight of SEN provisions being made for Y which has resulted in provision not being made;
• did not respond to Mrs X’s communications within the timescales in its customer service standards;
• delayed making direct payments to Mrs X; and
• did not respond to her complaint at stage one of its complaints process.
15. Mrs X suffered distress and uncertainty. Y missed education and SEN provision between February to September 2023.

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Agreed action

16. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X and Y for the fault found;
• Pay Mrs X £200 in respect of avoidable distress;
• Pay Mrs X £2,400 in respect of Y’s missed educational opportunity; and
• Provide an action plan showing how it will maintain oversight of EHC Plans.
17. The Council should provide us with evidence it has complied with the above actions.

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Final decision

18. I have found fault by the Council, which caused injustice to Mrs X and Y. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman