Summary: Ms B complained that the Council had failed to ensure the provision detailed in her daughter C’s EHC Plan since December 2022 was put in place. This caused her distress as to whether C had missed out on essential support. We have concluded the Council did not ensure all the provision was in place. The Council to apologise to Ms B, make her a symbolic payment of £300 for her own injustice and £1300 to an education provider (agreed to by the Council and Ms B) for the benefit of C’s education.

The complaint

1. Ms B complained that the London Borough of Sutton (the Council) in respect of her daughter, C, failed to ensure the provision detailed in her Education, Health and Care (EHC) Plan from December 2022 was put in place. This caused C to miss out on essential support during a key period in her education and caused Ms B distress and frustration.

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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)

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How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. 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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What I found

Special educational needs

6. A child or young person with special educational needs may have an 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. 

Maintaining the EHC Plan

7. 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)  
8. 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. Ms B’s daughter C has an EHC plan issued in December 2022. This named her current school with extra support. The provision in Section F included:
• A personalised timetable and individualised catch up plan to achieve increased attendance at school. Regular check-ins, daily reviews and a mentor from the school support staff.
• Support through an Emotional Literacy Support Assistant (ELSA) to address a number of emotional issues at least once a week (30- 45 minutes) for 8 to12 weeks followed by pastoral input for on-going support
• Adult support to access cognitive behavioural therapy (CBT) self-help online while she waits for therapeutic support from mental health services.
• Support and guidance at least once a week from a member of staff with training in CBT approaches.
10. The school said as part of the consultation leading to the EHC Plan that it could not meet C’s needs, nor could it implement the provisions set out in section F of the EHC Plan. It felt she needed a smaller more therapeutic setting. It said it was still willing to offer a place on condition that Ms B was aware of this. C was currently attending a small unit within the school which provided a more nurturing environment. But the school made clear to the Council and to Ms B that C could not access a full range of GCSEs in this unit and it was not a specialist setting.
11. The school said that the Council acknowledged and was aware of this and agreed to look for a more specialist placement in January 2023.
12. In February 2023 the Council consulted with three alternative settings, including College Z. In March 2023 College Z said it could not meet C’s needs.
13. In April 2023 the school met with the Council to discuss its concerns about C’s placement, particularly engagement and poor attendance. The school said the Council agreed to let Ms B know of any positive consultation responses and would revisit previous consultations to see if anything had changed.
14. In June 2023 College Z again said it was happy to meet with Ms B and C, but Ms B had declined. Following further discussion with the Council and the school. Ms B changed her mind and in July 2023 agreed to visit College Z. However, the college was now closed for the summer and so the visit could not take place until September 2023. The schools said C was not managing at all in its setting. The school chased the Council about College Z throughout September, October and November 2023.
15. In November 2023 Ms B met with the school who explained why they were unable to implement the provision in section F. The school suggested a specialist placement was needed and possibly some form of supported living. It confirmed it had discussed C with the Council who had agreed to consider 1:1 tuition and therapeutic support, to consult with specialist providers and look at support living options.
16. Ms B also complained to the Council, saying that C’s provision had not been met: She had not increased her attendance (for the 2022/23 academic year it was less than 50 %), there had been no educational progression, a teacher trained in CBT approaches had not been provided, she had not received support from an ELSA and there had been no termly reviews.
17. On 27 November 2023 the Council provided tuition for C three days a week. C stopped attending at the end of the autumn term.
18. The Council telephoned Ms B in response to her complaint and following this on 20 December 2023 she complained about two outstanding issues, regarding the request for supported living for her daughter and CBT not being provided.
19. The Council replied in mid-January 2024. It said the supported living was not an SEN issue and referred Ms B to children’s social care. It accepted that CBT was not being provided because it could not find a suitable therapist. Once one was found it agreed to offer catch-up sessions.
20. Ms B escalated her complaint to stage two. In early February 2024 C became a looked after child (the Council was now responsible for her and shared parental responsibility with Ms B) and she moved into a supported living placement.
21. The Council responded to the complaint at stage two on 21 February 2024. It apologised again for the lack of CBT and said it was now training a member of the educational psychology team to provide the CBT.
22. Ms B escalated her complaint to stage three. She said C had been without the provision for 14 months and her GCSEs were approaching.
23. The Council responded to the complaint on 25 March 2024. It said the school confirmed to the Council that C had been accessing a nurture-style provision within the school since September 2022. It also confirmed that the school had a member of staff in place who was providing the CBT approach as set out in the EHC Plan.
24. Following an annual review of C’s EHC Plan in March 2024, the Council issued an amended draft EHC Plan in April 2024 and a final plan on 18 June 2024.
25. In response to my enquiries the Council has said catch-up sessions were not deemed necessary because:
• C has accessed the nurture unit at the school twice a week since September 2022, with access to staff trained in CBT approaches.
• C has created a supportive and trusting relationship with one member of staff who is her mentor and her ELSA and has done ELSA sessions with C.
• All staff within the unit are ELSA-trained and this training incorporates an introduction to CBT approaches.
26. In response to an earlier draft decision Ms B provided information from the school in November 2024 confirming that C had never received 1:1 ELSA sessions while at the school. While the class teacher in the unit C attended was ELSA-trained she had to support the whole class of up to eight students and C had no 1:1 sessions.
27. Since C became a looked after child, the Virtual School (run by the Council to provide education and educational support for looked after children and care leavers) is now responsible for her education up to the age of 18. Ms B says C is not engaging with the Virtual School.

Analysis

28. Ms B complained to the Council in November 2023 that the provision in section F of C’s EHC Plan was not in place. The Council said after a telephone call with Ms B in December 2023, of which there is no record, that she only wished to pursue the issue of the CBT provision and the supported living. In the complaint to us Ms B has made clear she wishes to pursue all of the section F provision because it was never resolved and never put in place.
29. The Council has requested the opportunity to consider this in more detail now. I have declined this request because I consider the Council has had a reasonable opportunity to consider the complaint and can offer no evidence to support its view that this matter was resolved in December 2023. Ms B has also provided more evidence from the school confirming that the school has never been able to meet C’s needs and was clear about this from December 2022 when the final EHC Plan was issued.
30. I have also considered that Ms B had a right of appeal against the placement named in the EHC Plan. However, I consider it was reasonable for her not to pursue an appeal as she only disagreed with the placement and the Council had agreed in January 2023 to find another placement. Ultimately this was unsuccessful, as only three further placements were consulted over the next six months and Ms B declined to pursue an application to one of them.
31. I have concluded that not all of the provision in Section F was in place from January 2023:

CBT sessions

32. C’s EHC Plan did not specify CBT sessions or a CBT therapist. It required 8 – 12 sessions with an ELSA, support to access CBT self-help online and support at least once a week from a member of staff trained in CBT approaches.
33. However, the Council said in January 2024 and again in February 2024 that it had not provided CBT sessions with a CBT therapist, and it was looking for such a therapist. Once one was found it would arrange catch-up sessions. By March 2024 it had changed its view and clarified that the provision specified in the EHC Plan was in place.
34. I cannot find fault with the Council for not providing something which was not in Section F of the EHC Plan. But I consider the Council was at fault for providing incorrect and confusing information in its stage one and stage two responses which raised Ms B’s expectation that C would receive individual CBT sessions.
35. This created uncertainty for Ms B for several months and caused her to complain to the Council and then to us.

ELSA sessions

36. Although the Council maintains that 8 to 12 1:1 ELSA sessions were provided, the school has provided evidence to support Ms B’s view that individual sessions did not take place. This was fault which meant C missed out on essential support at school, and Ms B was caused distress and inconvenience in pursuing the matter.

Other provision

37. There is limited evidence to reach a conclusion on the other provision detailed in Section F. However, the school was clear in December 2022 that it could not meet C’s needs or put in place the section F provision and the Council appears to have agreed with this as it made some efforts to find an alternative placement. On balance I have concluded that it is likely the other aspects were not in place given the limitations described by the school.
38. C received some individual tuition from November 2023, but this appears to have lasted only for a few weeks. For the majority of the time from January 2023 (when the Council agreed to look for an alternative placement) until April 2024 when Ms B complained to us) C was not receiving the provision specified in her EHC Plan. Again, this meant she missed out on essential education and Ms B was caused distress and inconvenience in trying to raise this with the Council .

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Agreed action

39. In recognition of the injustice caused to Ms B and C I recommended that the Council, within one month of the date of my final decision:
• apologises to Ms B;
• pays her £300 for her own injustice; and
• pays £1300 to an education provider (agreed to by the Council and Ms B) for the benefit of C’s education.
40. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

41. I consider this is a proportionate way of putting right the injustice caused to Ms B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman