Summary: There was delay and fault by the Council in failing to secure special educational provision in an EHC Plan and failing to respond to requests for additional funding from a school within an acceptable timeframe. This has caused loss of education, distress, frustration and delay. The Council will apologise, make a symbolic payment, resolve the outstanding funding request, and make service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council has failed to secure the special educational provision in Section F of her child’s Education, Health and Care Plan since Autumn 2023. Ms X says the school requested additional funding at a review meeting in Autumn 2023 and the Council has failed to resolve this. As a result, Ms X says her child has missed out on support and is falling behind in school.
2. Ms X has also been put to unnecessary time and trouble chasing up funding issues between the school and Council. Ms X says the situation has caused her anxiety.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 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 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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What I have and have not investigated

7. I have investigated the period from Autumn 2023 when Ms X’s child started the new school named in their EHC Plan.
8. I have not investigated any matter which carried a right of appeal to the SEND Tribunal. I consider it would have been reasonable for Ms X to use her right of appeal if she was dissatisfied with the content of the EHC Plan.

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How I considered this complaint

9. I have considered information provided by Ms X, the Council and the school, including correspondence between them and complaint documents.
10. I have considered relevant law and guidance.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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

Relevant law and guidance

13. 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 council can do this.
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. When reviewing an EHC Plan the Council must consult the child or young person, their parent and the school the child or young person is attending.
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. There is no requirement to send a copy of the draft plan to the school.
16. The Council must send a copy of any final EHC Plan to the family, the named school and the relevant health commissioning body.
17. 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 of (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)  

18. 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 its legal duty. At a minimum we expect it 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. 

19. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s needs, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment.

What happened

20. The Council consulted schools to name in Ms X’s child’s EHC Plan in early 2023. School X’s response to the consultation was that it could not meet needs without additional funding for adult support in lessons in addition to the usual place cost.
21. There was correspondence between the Council and School X in Spring 2023. The Council said 1:1 was not required, only smaller class provision, which the school already offered. It said it intended to name School X on the EHC Plan on this basis.
22. There is evidence the Council agreed, in response to further concerns raised by School X, to ‘revisit the discussion of 1:1 support’ at an interim review in early Autumn, following which additional funding could be requested.
23. School X responded the Council’s Educational Psychologist (EP) report recommended a staff: pupil ratio of 1:8 but the class size was 17:1. The school said while Ms X’s child would not require 1:1 all the time, an additional member of staff was required to meet this ratio. It asked the Council to consider further EP observations during taster sessions in Summer 2023. It does not appear these happened.
24. In August 2023 after the issue of a final EHC Plan naming School X, the school again queried the funding for the placement with the Council.
25. The Council held an early review of the Plan after Autumn half term. Ms X said her child needed a much higher level of adult support. School X agreed. It said a class teacher in a high school could not deliver the individualised interventions and small group provision in the EHC Plan and a Learning Support Assistant (LSA) was needed.
26. Following the review the Council issued a draft EHC Plan. I have not seen evidence this was shared with the school (although there is no legal requirement for it to be).
27. The Council then issued a final amended EHC Plan in December. The Council says the Plan continued to state that 1:1 support was not needed in the classroom for Ms X’s child, and it does not consider it issued a substantially different Plan than what was in place in Summer 2023.
28. The final EHC Plans do refer to the use of classroom LSA support, small groups and a staff: pupil ratio of 8:1. The Council says School X did not respond to the amended final Plan or say it could not meet need. It considers the school could make the required provision within the existing place funding.
29. School X however did submit a funding application at the end of Autumn 2023 term and asked it to go to the Council’s panel. School X chased this up over the following months.
30. In early 2024 Ms X made a formal complaint about delay. The Council upheld it had delayed responding to the school’s funding request for a period of six months, which was unacceptable. It arranged to meet School X in the second half of the Summer 2024 term. The Council offered Ms X a time and trouble payment for delay of £100 but continued to maintain the EHC Plan did not require 1:1 funding and the school should be delivering the Section F special educational provision from the existing funding.
31. At the meeting in Summer 2024 the Council says it explained to the school how to request additional funding. The school then made a costed request for funding, which it chased in August, and made another request in September. The Council has admitted to me it has not progressed the matter since June due to staff changes. The Council says while an annual review of the EHC Plan was due by November 2024 this will not be held until early 2025.
32. School X told me Ms X’s child needs additional adult support in all academic lessons via modification of the curriculum, individual and small group work. It says some of the interventions in the EHC Plan are not deliverable as part of the secondary school curriculum and require additional staffing. It says Ms X’s child is at a disadvantage as they often do not understand what is happening in lessons and while trying to keep up with peers, they are in fact falling further and further behind. The school says if additional adult support had been provided Ms X’s child would have accessed more learning in class and their self-esteem would not have been as adversely affected. The school has also been unable to provide small group sessions to support peer relationships although this is specified in the EHC Plan.

Fault

33. The Council has failed to secure the special educational provision in the EHC Plan from September 2023 to date. This is fault. The Council has focussed on the need for 1:1 support, which the Plan does not specify is always required, but failed to appreciate the EHC Plan specifies a need for a 1:8 ratio when School X has been clear the ratio is 1:17 and an additional member of staff is needed to meet the ratio of 1:8.
34. The Council has repeatedly stated the per place funding meets the EHC Plan requirements when this is not the case. The Plans do include reference to LSA support for individual and small group interventions.
35. While the Council did correspond with School X about 1:1 funding in Spring / Summer 2023, it also agreed to revisit this. It has then failed to consider specific funding requests since November 2023, a delay of over one year. This is fault. The school and Ms X have not challenged the EHC Plan wording to request 1:1 is specified, but that does not alter that the Council has failed to secure the provision that is already specified in the Plans.
36. The Council accepted in mid-2024 the delay was unacceptable but has continued to delay. This is fault.
37. The Council has also failed to hold the next annual review within twelve months of the previous review. This is fault and has delayed a decision which would give Ms X a right of appeal to the SEND Tribunal should she wish to amend the EHC Plan.

Injustice

38. Ms X’s child has missed out on LSA support, special educational provision and a staff: pupil ratio of 1:8 for nearly four terms, which has led to the adverse impacts described by the school above.
39. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child's special educational needs;
• any educational provision that was made during the period; and
• whether additional provision can now remedy some or all of the loss.
40. Ms X has been put to significant time, trouble and distress trying to resolve this matter with the Council.

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Agreed action

Within four weeks of my final decision:

41. The Council will apologise to Ms X for the fault identified in this decision statement.
42. The Council will pay Ms X £500 for the time, trouble and distress caused over the past year. If the Council has previously made a payment of £100 it can deduct this from the amount.
43. The Council will pay Ms X, on behalf of her child, £3600 to acknowledge the impact of the missed provision over four terms (September 2023 to December 2024). This reflects while special educational provision was missed, Ms X’s child was accessing fulltime education.
44. The Council will submit the funding request to its panel without further delay and confirm with the school the funding it will provide.

Within two months of my final decision:

45. The Council will review whether it has suitable processes in place to check that all elements of Section F in a new or amended Plan are fully in place, and that additional funding requests are considered and decided in a timely way.
46. The Council will provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation. There was delay and fault by the Council in failing to secure special educational provision in an EHC Plan and failing to respond to requests for additional funding from a school within an acceptable timeframe. This has caused loss of education, distress, frustration and delay. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman