The Ombudsman's final decision
Summary: The Council was at fault for failing to deliver all of Mr B’s daughter’s special educational needs support for more than a year. It has agreed to make a symbolic payment to Mr B to recognise his daughter’s injustice. It will also continue to make symbolic payments to Mr B until the support is in place.
The complaint
The complainant, whom I refer to as Mr B, complains that the Council has failed to deliver his daughter’s special educational needs support for over a year. I refer to his daughter as C.
The Ombudsman’s role and powers
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) If we are satisfied with a council’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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I considered information from Mr B and the Council. Both had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
The Council’s responsibilities A child with SEN 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, including section F: the special educational provision needed by the child or the young person.
Councils have a duty to make sure children receive the special educational provision set out in section F of their EHC plans. (Children and Families Act 2014, section 42) The Courts have said the duty to arrange this provision is non-delegable. This means if a council asks another organisation to deliver 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) The Ombudsman’s remedies guidance We do not punish councils in the way a court might. This means we do not award ‘damages’ or ‘compensation’.
Instead, we can ask a council to make a payment to ‘symbolise and acknowledge’ the distress someone suffered because of what it did wrong.
Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss.
Financial remedies for other missed provision, such as occupational therapy, are likely to be lower than those for lost educational provision.
What happened The Council issued C’s most recent EHC plan in February 2023. Among other things, this plan said C should receive: A bespoke occupational therapy programme, delivered by trained school staff.
An hour per week of direct contact between C and a ‘level 3’ occupational therapist.
A specialised physiotherapy programme, devised by a therapist and delivered by trained school staff, with termly reviews.
Access to a hydrotherapy pool.
In complaint letters in June and October, Mr C told the Council that C had not received any of the occupational therapy or physiotherapy in her EHC plan.
In November, the Council accepted that it had not delivered the therapies. It said it was ‘awaiting funding agreements’.
The Council says C has still not received the therapies. It says it is “committed to getting provision in place for [C] moving forward”. It has also offered to make a payment of £1,575 to Mr B to recognise C’s injustice (at a rate of £450 per term of missed provision).
My findings
The Council has already accepted that it has failed to meet the needs described in C’s EHC plan, for which it is at fault.
It is unlikely that the benefit of the missed provision can now be recovered for C. She needed it at the time and did not get it. Consequently, our usual approach is to recommend that councils make symbolic payments to families to recognise the injustice caused by the missed provision.
The Council has made an offer of a remedy payment which, with our remedies guidance in mind, appears satisfactory for the period from February 2023 to now.
However, it is not clear when C will start receiving the provision. I acknowledge that the Council is committed to sorting this out; however, I would assume that this has been the case all along.
In order to recognise this lack of clarity about C’s ongoing SEN provision, the Council should continue to make payments to Mr B until C has the right support in place.
Agreed actions
Within a month, the Council has agreed to: Make a payment of £1,575 to Mr B, on C’s behalf, to recognise her injustice from over a year’s missed SEN provision.
Write to Mr B and agree to make further payments for as long as C remains without SEN provision, at a rate of £450 per term.
Within two months, the Council has agreed to provide us with an action plan which sets out how it will ensure similar failures to secure SEN provision will not happen again.
The Council will provide us with evidence it has done these things.
Final decision
The Council was at fault.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman