Summary: We have found the Council at fault for failing to secure the Special Educational Needs provision in Mrs X’s daughter’s Education, Health and Care Plan. The Council agreed to apologise, make a symbolic payment, and put the provision in place as soon as possible.

The complaint

1. Mrs X complained the Council failed to deliver the Special Educational Needs (SEN) provision in her daughter Y’s Education, Health and Care (EHC) Plan that was agreed by Consent Order in December 2023.

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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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What I have and have not investigated

5. I have investigated the period between when the SEN Tribunal issued the consent order in December 2023 and when Mrs X brought her complaint to us in June 2024. I have investigated the missed SEN provision.
6. I have not investigated the period before December 2023. This was previously investigated by the Ombudsman and as a result the Council paid Mrs X a financial remedy for the missed provision.
7. I have not investigated Mrs X’s complaint that the Council removed SEN provision from Y’s EHC Plan. Amendments to an EHC Plan is out of the Ombudsman’s jurisdiction and can be appealed to the SEN Tribunal.

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How I considered this complaint

8. I have considered Mrs X’s complaint and have spoken to her about it.
9. I have also considered the Council’s response to Mrs X and to my enquiries.
10. 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

Legislation and guidance

11. 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.
12. 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)
13. 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

14. Mrs X’s daughter, Y has SEN. In December 2023, the SEND Tribunal issued a consent order where the Council agreed to deliver SEN provision to Y.
15. In March 2024, when the Council had not secured the provision, Mrs X complained. In its response, the Council recognised that Y was not receiving the SEN provision. It upheld Mrs X’s complaint and offered to reschedule the missed provision or pay compensation. The Council told Mrs X that an officer would be in touch to discuss the plans.
16. Following a lack of communication from the Council, Mrs X escalated her complaint as she felt the Council had not addressed the issues of the missed SEN provision.
17. In May 2024, the Council agreed to pay Y a financial remedy for the loss of provision since her EHC Plan was issued in December 2023 until to the end of the academic year (July 2024). It said this would enable Mrs X to use the funds to make up for the lost provision. It would also provide the Council with time to secure future SEN provision at school from September 2024. It said it would also consider paying Mrs X a personal budget so she could secure the provision herself.
18. The Council offered a total of £4,687.50 for the missed speech and language therapy (SALT), occupational therapy (OT) and psychological therapy. Mrs X accepted this.
19. Mrs X brought her complaint to the Ombudsman in June 2024.

Update

20. Mrs X said that Y’s school placement for September 2024 broke down. The Council has secured some educational alternative provision (AP) but no SEN provision.

My findings

21. In response to my enquiries, the Council said it had no record of paying Mrs X the financial remedy agreed in May 2024. Y has been out of school since September 2024 and is not receiving any SEN provision. The Council acknowledged that it had overlooked Mrs X’s request for personal budget and had therefore not made a decision.
22. I have found fault with the Council for the missed SEN provision between December 2023 and July 2024 and for not paying Mrs X the agreed financial remedy.
23. The fault and injustice are ongoing as the Council failed to secure SEN provision from September 2024. In addition, the Council was at faut for not considering Mrs X’s request for a personal budget so that she could secure the SEN provision herself.

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Agreed action

24. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X and Y for failing to secure SEN provision.
2. Pay Mrs X £4,687.50 in recognition of the missed provision between December 2023 and July 2024.
3. Consider Mrs X’s request for a personal budget and reach a decision.
25. As soon as possible, the Council should:
1. Secure the SEN provision in Y’s EHC Plan.
26. Until the Council has secured SEN provision, or agreed a personal budget or within 6 months of my decision, the Council should:
1. Pay Mrs X £180 per week (backdated to the start of term in September 2024) in recognition of the continued missed SEN provision.
27. After 6 months, if the provision is not in place, we will consider opening a new case.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. I have found the Council at fault for failing to secure the SEN provision in Y’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman