Summary: Mrs X complained that the Council failed to ensure her son, D, received the provision set out in his Education, Health and Care Plan. We have found that the Council was at fault and D missed out on support as a result. The Council has agreed a suitable remedy including putting provision in place, a payment for missing provision, and improved procedures.

The complaint

1. Mrs X complained that the Council failed to ensure her son received the support set out in his Education, Health and Care Plan from when it was issued in October 2020, including Occupational Therapy and input from a specialist teacher.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered councils’ duties in relation to provision for special educational needs. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share the final decision with Ofsted.

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What I found

Education, Health and Care Plans

6. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
7. Parents have a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal about the special education provision or the placement named in the EHC Plan.
8. If the Tribunal orders the council to issue an EHC Plan, it must do so within five weeks of the Tribunal decision.
9. Councils have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

Impact of the COVID-19 pandemic

10. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.
11. The Secretary of State issued a notice under the Coronavirus Act 2020 to give councils more flexibility in dealing with EHC Plans and provision. It temporarily changed councils’ absolute duty to ‘secure’ the education provision in an EHC Plan to one of using ‘reasonable endeavours’ to do so. This change applied from 1 May to 31 July 2020. At the end of this period, councils’ usual duties resumed.
12. The Government also introduced temporary regulations, in force up to 25 September 2020, which allowed for the deadlines for completing EHC needs assessments, carrying out reviews and issuing EHC Plans to be relaxed. This applied where it was not practical to complete the actions within the usual timescale for a reason relating to COVID-19. In that case the council had to complete the action ‘as soon as reasonably practicable’.

What happened

13. Mrs X has a son, D, now aged ten, who has a diagnosis of Autistic Spectrum Disorder. Following a SEND Tribunal decision on 8 July 2020 the Council issued an EHC Plan for D on 8 October. D started attending a specialist unit (‘the Unit’) attached to a primary school in September 2020.
14. The EHC Plan included Occupational Therapy (OT) provision from an Occupational Therapist with Sensory Integration training and experience. The support to be provided included:
• meeting school staff and devising a sensory strategy to use in school;
• providing advice and training to school staff and D’s parents; and
• introducing an emotional regulation programme with weekly sessions and daily follow-up.
15. The EHC Plan also required the Council to provide a Specialist Teacher with experience of working with children with autism. The Specialist Teacher had a range of duties relating to planning D’s curriculum, devising learning strategies, and supporting school staff who work with him.
16. The Council started contacting D’s new school in early September 2020 about his move. It suggested a Specialist Teacher who might be available to offer the support in the EHC Plan, and offered a meeting to discuss her input. At the end of September the Council sent the school a copy of the EHC Plan due to be issued. The Council asked if it would need to commission the OT support or whether the Unit could offer it as part of its existing provision.
17. In November 2020 D’s father, Mr X, made a complaint to the Council about failure to deliver some of the support in the EHC Plan, including the OT provision. He said neither D nor any of the school staff working with him had received any support from an OT. He said the school told him it was trying to access support but had been told it was not available because of COVID-19 restrictions.
18. The Council replied to the complaint in December. It upheld the part of the complaint about lack of OT provision. It said:
• It had liaised with the NHS children’s OT Service and found that ‘due to capacity restraints’ the Service was not in a position to deliver the OT set out in D’s EHC Plan.
• The Council would therefore arrange for D to receive OT from an independent therapist. Commissioning arrangements were underway and it intended OT to start early in the spring term of 2021.
• To recognise the delay D had experienced, the Council would also explore the possibility of delivering extra therapy sessions during that term.
• As soon as it had identified an OT it would contact Mr and Mrs X with an update.
19. In April 2021 Mrs X complained to the Ombudsman that no OT had been provided. She said no OT had spoken to or visited the school. She had heard no more from the Council about OT provision since the response to her complaint. She also complained about lack of Specialist Teacher support.
20. The OT service started in June with five weekly sessions with D at school over the rest of the term. Mrs X says she also engaged a private OT who saw D twice in the summer term and made recommendations to staff. She says there has been no further contact from the OT service since the end of the last school year, and the Specialist Teacher has not started.
21. The school, the family and the Council have now agreed that the Unit is no longer a suitable placement for D. He is moving to a new school in January 2022.

Council’s response to the Ombudsman

22. In response to our enquiries, the Council said the Unit had difficulty obtaining the level of input needed from the OT service because of the impact of COVID-19. Its investigation also found that the promised referral to an independent OT did not take place. It said this was because the casework officer responsible went on long-term sick leave. The Council also confirmed it did not arrange the extra therapy sessions referred to in its response to Mrs X’s complaint.
23. The Council said although it contacted the Unit in early September 2020 about arranging for a Specialist Teacher, the lead teacher at the Unit went on long-term sick leave. As a result it said there was no input from a Specialist Teacher.
24. The Council recognised it had failed to deliver the OT and Specialist Teacher support required in D’s EHC Plan from October 2020. It offered to apologise, make a payment to the family, take action to provide the support needed, and review its procedures. I look at the remedy offered in more detail below.

Analysis – was there fault causing injustice?

25. The Tribunal issued its decision on 8 July 2020. Normally this would mean the Council should issue the EHC Plan within five weeks, by 12 August. In this case it took over 13 weeks, to 8 October, to issue the final Plan. The Council has not referred to any difficulties caused by the COVID-19 pandemic to explain the delay in issuing the final EHC Plan following the Tribunal. So in my view the Council should have issued it in time for the start of term in September 2020. By this time the Council’s full duty to arrange the support in D’s EHC Plan had returned.
26. Therefore, based on the information I have seen so far, I consider the Council was at fault in failing to arrange the OT and Specialist Teacher support from September 2020, rather than October. However I do not need to investigate further the reasons for the delay in issuing the EHC Plan and whether D missed out on provision from September to October. This is because in my view the financial remedy the Council has offered is sufficient to cover the period from September in any event.
27. The Council accepts that because of its failings D missed out on support he should have had. He did not start receiving OT until June 2021, and Mrs X says he has not received any this term. Taking account of school holidays this means he missed at least ten months of OT and Specialist Teacher support. The lack of support required in the EHC Plan is an injustice to D.

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Agreed action

28. To remedy the injustice caused, the Council offered to take action as follows.
• Make an immediate referral for an Independent Occupational Therapist.
• Contact the SEND Service immediately to begin work with D's school. (My understanding is this refers to the Specialist Teacher).
• Review its internal processes for communicating Tribunal decisions to all relevant professionals involved in a case.
• Review how it follows up outcomes from Tribunals in a timely way and then monitors implementation of the decision.
• Apologise to Mr and Mrs X and acknowledge that the Council’s failings have resulted in a loss of educational provision for D.
• Offer the family £2,400 to recognise the distress this has caused and the lack of provision since October 2020.
29. I welcome the Council’s offer to take immediate steps to put the provision in place and to review its procedures. I consider the apology and payment offered is a suitable remedy for the loss of education so far, as it is in line with the Ombudsman’s guidelines. Mrs X is happy with it. But I recommended that if the OT does not resume and the Specialist Teacher does not start within one month of the final decision on the complaint (excluding school holidays), the Council should make a further payment of £200 per month until this support starts. The Council has agreed.
30. The Council will offer the apology and £2,400 payment within one month of the final decision on the complaint. This sum should be used for the benefit of D’s education or to support his special needs.
31. The Council has also agreed that within three months the Council should take the following action:
• tell the Ombudsman the outcome of its review of procedures.
• ensure there is a procedure in place for reviewing cases of a staff member who is on long-term sick leave to ensure key actions are not missed.

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Final decision

32. I have found find there was fault by the Council causing injustice. The Council offered a remedy and has agreed further action in response to my recommendations. I am satisfied with the action the Council has agreed to take and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman