Summary: Mrs X complained the Council failed to provide her child with the educational provision in his education, health and care plan. The Council acknowledged the fault and injustice caused. It has agreed to our recommendations to remedy the injustice caused.

The complaint

1. The complainant whom I shall refer to as Mrs X, complains the Council failed to provide some of the provision contained in Section F of her child, Y’s, Education, Health and Care Plan, specifically a laptop to help him undertake written work independently.

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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 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)
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)
4. 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

5. I considered Mrs X’s complaint and the information she provided.
6. I considered the information I received from the Council in response to my enquiries.
7. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Education, Health and Care (EHC) Plans

8. A child with special educational needs may have an 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 or Council can do this.
9. Statutory guidance, ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out Education Heath and Care (EHC) assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the Special Education Needs Regulations 2014. It says:
• the first review must be held within 12 months of the date when the EHC Plan was issued and then within 12 months of any previous review;
• the decision following the review meeting, whether to keep the EHC Plan as it is, amend it, or cease to maintain it, must be notified to the child’s parents or young person’s parents within four weeks of the review meeting; and
• within 8 weeks of the original amendment notice, it must issue the amended EHC Plan.
10. The Council must secure the special educational provision where it maintains an EHC Plan for the child. This does not apply where the child’s parents, for example, have made suitable alternative arrangements. (Children and Families Act 2014, section 42 (2) and (5))
11. 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) 10.
12. 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

13. Mrs X has a child, Y, who has an EHC Plan maintained by the Council. In May 2023, the Council issued a final EHC Plan for Y and in Section F it said Y required “alternative forms of recording to augment his handwriting for longer pieces of work, including but not limited to [a] laptop/computer with access to word-grid software…”.
14. Y did not receive a laptop and Mrs X asked his school to provide him with the device. The school advised Mrs X it required additional funding from the Council to provide this provision.
15. In September 2023, Mrs X brought the matter to the attention of Ms W, Y’s case officer from the Council, via email. Mrs X sent another email in October 2023. Mrs X did not receive a response to her emails and telephone calls.
16. An annual review meeting for Y’s EHC Plan was held in November 2023 where Mrs X raised the issue of Y not having a laptop directly with Ms W. Ms W said she would not be putting the request to the Council’s Panel without further evidence from an Occupational Therapist (OT). Ms W explained she had put a similar case forward to the Panel with regards to another child and the Panel had refused it for lack of evidence and therefore she predicted the same outcome with Y.
17. Mrs X was of the view that the provision was stipulated in Y’s EHC Plan, it was the Council’s duty to provide that provision and therefore no further evidence was required. On 30 November 2023, Mrs X complained to the Council.
18. The Council responded at Stage 1 of its complaints process on 4 December 2023. It said “the content of an EHCP cannot be considered via complaint process. There is a more relevant process to follow, which is the Mediation/Appeal route if you remain in disagreement with the Final EHCP issued or the education type/setting named”.
19. Ms W put Y’s case forward to the Panel for their consideration. On 13 December 2023, the Council advised Mrs X the Panel had refused the request and the rationale for the decision given was, “In agreeing to meet the educational needs as outlined in the EHCP, part of this may relate to the use of appropriate technology to support the child. Therefore, the funding of the laptop should come from the schools allocated resource”. Mrs X forwarded the Council’s response to Y’s OT. On the same day, Y’s OT contacted the Council and asked it to put the request forward to its Panel again for reconsideration as it was imperative that Y had the device.
20. Mrs X was dissatisfied with the Council’s response to her complaint and escalated it to Stage 2 of the complaints process. Mrs X explained to the Council again that the school did not have the funding to provide the provision to Y, the Council was refusing to provide the funding and in the middle was Y who had not received the provision in his EHC Plan since May 2023. She reminded it that the duty to provide the provision was the Council’s.
21. In January 2024 Mrs X brought the matter to the attention of the Council’s Director of Children’s Services.
22. In February 2024, the Council sent its Stage 2 response. It said the Stage 1 response was sufficiently detailed and responded to the concerns raised. It partially upheld Mrs X’s complaint because the Council’s communication fell below the Council’s standards. It apologised for this. It referred Mrs X’s complaint back to the SEND Department so they could provide an ‘additional response’ to her concerns about the loss of provision. It went on to say that loss of provision was an operational decision and not something the complaints process can influence and it advised Mrs X to contact her case officer.
23. In February 2024 the Council issued Y’s final EHC Plan following the annual review that was held in November 2023. This final Plan stated that Y still required alternative forms of recording to augment his handwriting, including but not limited to a laptop or computer.
24. Mrs X brought her complaint to the Ombudsman in February 2024. Ten days later, the Council provided the ‘additional response’ it referred to in its Stage 2 response. It said the Council’s position remained the same in that the responsibility for providing the provision rests with the school but it accepted that Y had not received the agreed provision at school. The Council agreed to provide Y with a laptop to ensure he is receiving the appropriate provision in line with his EHC Plan. The Council said it would endeavour for the provision to be in place by the start of the summer term at the latest. It apologised again for Mrs X’s experience with the service.

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Analysis

25. The law is clear, the Council must secure the special educational provision where it maintains an EHC Plan for the child. The Council failed to ensure the provision specified in Y’s EHC Plan from May 2023 was put in place. This was fault which meant Y was without the device specified in his EHC Plan for a whole year.
26. The Council repeatedly told Mrs X it was up to the school to deliver the provision. 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).
27. The Council should have taken steps to ensure that the provision was in place, particularly when Mrs X first raised the issue with the Council in September 2023. The Council’s failure to do this is fault. The evidence shows that as well as Mrs X raising the issue repeatedly with the Council, the matter went to the Council’s Panel on at least two occasions, and it still did not make any attempt to look into the issue of funding Y’s provision. It based its decision on an assumption that the school had the funding/resources. It is concerning the issue was repeatedly brought to the attention of several council officers over a five-month period, but no attempt was made to actively investigate and resolve the matter.
28. I also consider the Council was wrong to ask Mrs X for more evidence from Y’s OT about the device when his EHC Plan was clear that the provision was required to meet his needs. Advice from an OT was sought when finalising Y’s EHC Plan in May 2023.
29. I have also found fault with the way the Council communicated with Mrs X about the issue. This includes the Council’s Stage 1 response where it told Mrs X to request mediation or appeal if she was unhappy with the contents of Y’s EHC Plan, when that was not the issue she complained of. Mrs X was not in disagreement with the contents of Y’s Plan.
30. Y’s case officer did not respond to Mrs X’s emails and calls about the issue and it was not until the annual review meeting in November 2023 that she received some communication on the matter. However, the communication thereafter sent Mrs X around in circles because it repeatedly told her to speak to the school, then contact customer relations and then contact Y’s case officer. The evidence shows Mrs X has on several occasions had to repeat the substantive issue of her complaint but without success. This caused immense frustration to Mrs X whilst also worrying about the impact of the loss of provision on Y.
31. The Council resolved the complaint after Mrs X had brought her complaint to the Ombudsman. This matter could have been resolved without the need for any complaint and the length of time it has taken was avoidable and unnecessary.
32. The Council’s recognition of the fault and its attempt to provide a suitable remedy is welcomed. However, the Council’s remedy offer does not reflect the impact of the loss of provision in a key phase of Y’s education. Y’s OT advised the Council that he was unable to demonstrate his learning through handwriting, that this was a significant barrier to him accessing the curriculum, without the device he was not achieving his learning potential and she described it as ‘imperative’ that the Council provided Y with the device.
33. Y was denied the provision he was entitled to and he risked being disadvantaged by his special educational needs and the impact, on his education and development, warrants recognition. Based on our Guidance on Remedies, I consider some of the payments offered by the Council should be higher.
34. During my investigation I also found the Council at fault for not providing Mrs X with a decision notice following the annual review in November 2023. The decision following the review meeting, whether to keep the EHC Plan as it is, amend it, or cease to maintain it, must be notified to the child’s parents or young person’s parents within four weeks of the review meeting. The Council was unable to provide me with this decision notice. It has advised me that all staff responsible for annual reviews of EHC Plans have received further training to address this issue. For this reason, I have not recommended any service improvements on this matter.

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Agreed action

35. To remedy the injustice caused by the faults, the Council has agreed that within four weeks of this final decision, it will:
• Pay Mrs X £250 to acknowledge avoidable distress and time and trouble;
• Pay Mrs X £3000 for the year Y was without the provision in his EHC Plan. I recommend Mrs X uses this payment for Y’s benefit; and
• Share this final decision with the Council’s Panel members to make them aware of the impact of their decisions.
36. The Council will provide us with evidence it has complied with the above actions.

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Final decision

37. The Council has agreed to provide an adequate remedy for the injustice caused by the faults. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman