Summary: The Council was at fault for delaying changes to Mrs B’s daughter’s special educational needs support. It was then also at fault for only partly dealing with Mrs B’s concerns about the support her daughter received. It has agreed to make symbolic payments to recognise the injustice suffered by Mrs B and her daughter, and will take steps to improve its service.

The complaint

1. The complainant, whom I refer to as Mrs B, complains that:
• Following a review of her daughter’s – C’s – special educational needs support in 2023, the Council took too long to decide how the support would change.
• The Council failed to deliver the right support to C, even after Mrs B had complained.
• The Council reduced the number of hours’ funding for C without explanation.
2. Mrs B says these matters caused C to miss education, which, in turn, has affected her attainment. She says she and C have both suffered distress.

Back to top

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. The law says we cannot normally investigate a complaint when someone has, or had, a right of appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use (or have used) this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. If we are satisfied with a council’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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

8. I have investigated Mrs B’s complaints about the Council’s delay in deciding C’s support, and about its failure to deliver that support.
9. I have not investigated Mrs B’s complaint about a reduction in the amount (or ‘hours’) of support which C was to receive. Decisions about support for a child’s special educational needs can be appealed to the SEND Tribunal. My role cannot overlap that of the Tribunal.
10. Mrs B has also made a new complaint about a further delay by the Council after a review of C’s special educational needs support in 2024.
11. As this complaint is separable from the matters I have investigated, and as Mrs B asked us to investigate the new complaint after we had already made enquiries of the Council on her existing complaint, I will not investigate it.
12. Mrs B can contact us separately about the new complaint.

Back to top

How I considered this complaint

13. I considered:
• Information from Mrs B and the Council.
• Relevant law and government guidance.
• The Ombudsman’s remedies guidance.
14. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

The Council’s responsibilities

15. A child with special educational needs may have an education, health and care (EHC) plan. This sets out how to meet the child’s needs. The plan is set out in sections, including section F: the provision needed by the child.
16. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. (Children and Families Act 2014, Section 42)
17. The provision should be in place as soon as the final EHC plan is issued. (SEND code of practice)
18. The duty to arrange this provision is non-delegable. This means if a council asks another organisation to deliver 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)
19. If a council proposes to amend an EHC plan, it must send the child’s parent an amendment notice. (SEND code paragraph 9.194). This should happen within four weeks of the date of the review meeting. (R on the application of L and others v Devon County Council (2022) EWHC 493)
20. The council must then issue the amended EHC plan as quickly as possible, and within eight weeks of the original amendment notice. (SEND Code paragraph 9.196)

What happened

21. In November 2022, the Council issued an EHC plan for C. It set out the teaching approaches she needed during the school day.
22. In March 2023, the Council reviewed the EHC plan, and agreed to amend it.
23. In May, Mrs B asked the Council for an update. The Council acknowledged her email, but made no progress on issuing the plan.
24. Mrs B emailed the Council again, for the same reason, in late August. The Council responded in early September, accepting it had caused delays. It issued an amendment notice and a draft EHC plan shortly afterwards.
25. The Council issued C’s final amended EHC plan later the same month. This plan also set out the teaching approaches she needed during the school day.
26. In November, Mrs B complained to the Council. She said C’s school was not delivering the provision in her EHC plan. She explained why she thought this.
27. The Council answered Mrs B’s complaint in December. It provided a written summary from C’s school. The summary set out how, according to the school, it was delivering all C’s provision.
28. Mrs B was unhappy with this and wrote back to the Council. She said the school’s summary was inaccurate.
29. In January 2024, the Council arranged a meeting with Mrs B and C’s school.
    Mrs B described the ways in which, in her view, the school was not delivering the right support to C. A plan was formed to address her concerns.
30. The Council responded to Mrs B’s complaint shortly after. It accepted that, from the information shared in the meeting, it was clear that C was not receiving all the support in her EHC plan.
31. The Council also agreed to amend C’s EHC plan again.
32. The following month, the Council held a review meeting. Although things had improved, Mrs B was still of the view that C was not getting the right support from the school.
33. The Council did not consider taking further action to ensure C received the support in her EHC plan. Nor is there any evidence it was satisfied with the school’s delivery of the support.
34. The Council says it held a ‘planning meeting’ in March, but there is no record of this.
35. In April, we issued a decision into a similar complaint against the Council. We noted that the Council had recruited new caseworkers to help it issue EHC plans on time.

My findings

EHC plan review

36. There was a significant delay to the Council’s amendment notice after its review of C’s EHC plan in 2023, for which it was at fault. There was no good reason for the delay.
37. This delay contributed to a corresponding delay to C’s amended EHC plan.
     
38. Mrs B suffered an injustice, because she had to contact the Council about the delay more than once. It is understandable that she feels nothing would have progressed without her efforts.
39. It is likely C also suffered an injustice from the delay. Although the provision in the EHC plan consisted largely of unmeasurable approaches to classroom teaching, she must have needed the new plan – otherwise the Council would not have decided to amend the old one.
40. The Council should provide symbolic financial remedies to Mrs B and C to recognise their injustice.
41. The Council has also told us, as part of our investigation into another complaint, that it has made service improvements – hiring more staff – to reduce delays in future. Time will tell whether this is effective.

Delivery of C’s support

42. After finding out (in November 2023) that C may not have been receiving the right support, the Council:
• Asked C’s school to provide information about how it was delivering the support.
• Arranged a meeting with Mrs B and the school to explore Mrs B’s complaint.
• Accepted that C had not been getting the right provision.
• Set up an action plan to address Mrs B’s concerns.
• Reviewed the action plan a month later (in February 2024) and recorded improvements and Mrs B’s continued areas of concern.
43. This was reasonable action to take. I have found no fault in how the Council dealt with this matter, up to and including the review meeting in February 2023.
44. However, after the review meeting – at which Mrs B continued to claim that C’s school was not delivering the right support – the Council took no further action (and did not even consider taking any).
45. Mrs C says C continued not to receive the right support for the rest of the school year. But, as the Council did not look into this after February, I cannot say exactly how much support was missed (or delivered incorrectly), or how long this was going on for.
46. I have found fault with the Council for this.
47. It is unclear the extent to which C was affected. Mrs B holds the Council responsible for C’s educational attainment (which was worse than predicted). But this could have been caused by a number of factors. I cannot say that the absence of some of C’s support was primarily responsible.
48. Nonetheless, I am satisfied, on balance, that C likely suffered some injustice from not getting all her support for at least part of the school year.
49. It is unlikely that this injustice can now be remedied with the delivery of additional support (particularly as C’s EHC plan is about to be amended, or has been already).
50. Consequently, the Council should recognise C’s injustice in its financial remedy. It should also take steps to improve its service.
    
    
     

Back to top

Agreed actions

51. Within a month, the Council has agreed to:
• Make a symbolic payment of £500 to Mrs B, on C’s behalf, to recognise C’s injustice from her delayed EHC plan, and from the failure to deliver all her support at points during the 2023-24 school year.
• Make a further symbolic payment of £200 to Mrs B to recognise that she had to spend time contacting the Council to ensure it was meeting its obligations to C.
52. Within two months, the Council has agreed to send us an action plan which sets out how, in future, it will ensure there is clarity in its monitoring of the delivery of special educational needs provision.
53. The Council will provide us with evidence it has done these things.

Back to top

Final decision

54. The Council was at fault. This caused injustice to Mrs B and C.

Back to top

Investigator's decision on behalf of the Ombudsman