Summary: Mrs X complained that the Council failed to secure the provision set out in her son’s education, health and care plan and, as a result, he was denied provision to which he was entitled. We found the Council was at fault. It has agreed to make a payment to Mrs X in recognition of the injustice caused.

The complaint

1. Mrs X complains that the Council has not secured the provision set out in her son’s education, health and care plan. As a result, he is being denied provision to which he is entitled.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
4. 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

5. I have investigated Mrs X’s complaint that the Council failed to secure the provision in her son’s education, health and care plan between January 2024 when he moved into a new school and June 2024 when Mrs X complained to us.

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How I considered this complaint

6. I have considered all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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

Legal and administrative background

Education, Health and Care Plan

9. 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.
10. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 

Maintaining the EHC Plan

11. 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)  
12. 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. 

Key facts

13. Mrs X’s son, C, has special educational needs and an EHC plan.
14. In November 2023, following Mrs X’s appeal to the SEND Tribunal, the Council issued a final EHC Plan naming a special school (‘the School’). C started at the School in January 2024.
15. In early February Mrs X contacted the Council saying C was not receiving the one-to-one support set out in his EHC Plan. A SEND officer confirmed he would speak to the School and reinforce the requirement for one-to-one support.
16. Mrs X responded saying that, although teaching assistants (TA’s) were always with C, he did not have a dedicated member of staff providing support. The officer explained that C’s EHC plan did not state that he required a dedicated member of staff, but only that he must have one-to-one support throughout the school day. He said this could be delivered by a small team of TA’s and it was good practice to have more than one TA supporting C to prevent him becoming too attached to one adult. The officer also confirmed he had asked a colleague to attend the Child in Need meeting that was due to take place in early March so any concerns could be discussed as part of this multi-agency meeting.
17. The minutes of the child in need meeting show that Mrs X raised concerns that C was not receiving one-to-one support from a dedicated member of staff. But she did accept he was always supported.
18. In mid-March Mrs X complained to the Council that C was not receiving one-to-one support, occupational therapy (OT) or physiotherapy as set out in his Plan.
19. The SEND team made enquiries of the School. Its special educational needs coordinator (SENCO) responded saying C was receiving one-to-one support throughout the school day from a small group of TA’s. He provided a provision map which confirmed this. The SENCO accepted the school was not providing physiotherapy because it did not have a physiotherapist despite its best efforts to resolve this. He also accepted that, although C attended a group session with the sensory OT once a week, the School was not providing individual OT as it did not have the resources to do so. He accepted this was not in line with C’s EHC Plan.
20. In April the Council responded to Mrs X’s complaint. It said OT was being provided once a week in a group session and TA’s were also working proactively to meet C’s sensory needs including by using sensory equipment. However, it accepted the School was not delivering the full provision set out in C’s EHC plan including support from the same two consistent TA’s, physiotherapy and OT. It apologised and said it was working to resolve this. It also said it would arrange a meeting with Mr and Mrs X and the School to ensure C was receiving the necessary provision.
21. Ms X was dissatisfied with the Council’s response and escalated her complaint to stage 2.
22. In May there was a meeting between Mr and Mrs X, the School and SEND officers. The School confirmed C was receiving one-to-one support from a small team of TA’s. It also said it was providing physiotherapy and one of the TA’s was attending external training to better deliver this provision. The School accepted OT was not being delivered but said it was looking for a suitable therapist. Council officers reiterated that this must be arranged without delay.
23. After the meeting Ms X provided the SEND officer with emails from C’s class teacher which she considered suggested C was only receiving one-to-one support in maths and English. The officer confirmed he would follow this up.
24. In June Ms X sent an email to the officer saying C was still receiving no physiotherapy, sensory OT or one-to-one support.
25. The following day the officer spoke to the School. It confirmed one of the TA’s was still completing physiotherapy training and that it was still intending to bring in an external OT in to deliver the provision.
26. The Council issued a stage 2 response in mid-June 2024. It said there was no evidence to suggest the School was not providing one-to-one support to C. It also stated that the School was providing physiotherapy and OT.
27. Ms X complained to the Ombudsman. Shortly afterwards C moved to a new school.

Analysis

One-to-one support

28. Mrs X says C should have been receiving one-to-one support from one dedicated support worker. This is incorrect. C’s EHC plan states that he “needs full-time 1:1 support, from a highly qualified and experienced adult who can understand and support his broad and complex needs”. But it later states that C should receive “consistent one-one support (from the same 2 adults) throughout the day”.
29. The School was not strictly adhering to the Plan as it was providing support from three TA’s, rather than two as specified in the Plan. As the Council is ultimately responsible for securing the provision in the plan, it was at fault. However, I do not consider that delivery of one-to-one support by three TA’s caused C an injustice sufficient to warrant a remedy.

OT and physiotherapy

30. In March 2024 the School accepted it was not providing OT apart from a class session once a week. This was not in line with C’s EHC plan which stated that OT would be provided to enable C to access learning opportunities to his full potential whilst helping manage his sensory, emotional and physical needs. It stated there would be 108 hours OT per year including providing support, attending annual review meetings and training school staff twice a year.
31. The School also accepted no physiotherapy was in place although it was taking steps to address this by sending a TA on a physiotherapy course.
32. C’s EHC Plan stated that he should complete daily physiotherapy based on a programme devised by a physiotherapist and this would be provided by one of his one-to-one support staff. C would be reviewed termly by the physiotherapist.
33. In its stage 1 response in April 2024 the Council accepted the School was not delivering the full provision set out in C’s EHC plan including: support from the same two consistent TA’s; physiotherapy; and OT. However, in its stage 2 response in June 2024 the Council stated there was no evidence to suggest the School was not providing one-to-one support and said the School was providing physiotherapy and OT.
34. I have seen nothing to suggest that anything changed between April and June and the school had again acknowledged in May that one-to-one support was being provided by more than two TA’s, OT was not being delivered and, although some physiotherapy was being provided, one of the TA’s was still attending training to better deliver this provision.
35. I am satisfied that, although officers attempted to resolve the issues, the provision was not delivered in accordance with C’s EHC Plan from the beginning of January 2024 when he started at the School until June 2024 when Mrs X complained to us.
36. Although the provision must be delivered by the school, the Council is ultimately responsible securing the provision set out in the EHC plan. I therefore find the Council was at fault.
37. The loss of OT and physiotherapy provision caused C an injustice. It also caused Mrs X distress, and she was put to inconvenience in pursuing the matter with the School and the Council.

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Agreed action

38. The Council has agreed that, within one month, it will pay Mrs X:
• £600 to use for C’s benefit in recognition of the loss of OT and physiotherapy provision between January and June 2024; and
• a further £250 in recognition of the distress and inconvenience she was put to because of the Council’s failure to secure the provision for her son.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I find fault causing injustice.
41. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman