Summary: There was delay by the Council in putting provision in place for B’s Education, Health and Care Plan. The Council has agreed a remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to ensure that her son, B, has received the provisions set out in his Education, Health and Care Plan (EHCP) from January 2019.

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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).
4. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. Caselaw has established that where someone may appeal or has appealed to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of alternative education after the date of the final EHC Plan. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407).
8. Therefore, I cannot investigate the matters relating to the school placement or provision named in the EHC Plan issued in July 2020 because they were, or could have been subject to appeal.
9. 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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How I considered this complaint

10. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

11. Mrs X’s son B, who has Downs syndrome, was at a mainstream secondary school in year 10. He has learning difficulties and had an EHCP setting out provisions to meet his needs. The Council issued a final EHCP on 11 January 2019. The provisions confirmed to meet B’s needs included:
• An emotional literacy intervention programme with a psychoeducational foundation dealing with emotions and triggers.
• A social skills intervention, with 3 hours per term for planning and monitoring by a specialist teacher experienced in supporting students with B’s learning disability. This intervention would be implemented by a teaching assistant for 30 minutes per week and would enable B to integrate with his peers, understand dangers, and express emotions appropriately.
• An independence programme, with 3 hours per term for planning and monitoring by a specialist teacher experienced in supporting students with B’s learning disability. This programme would be implemented by a teaching assistant and included B moving independently around the school site and independent work in class as an outcome.
• One-to-one teaching assistant support for B to attend both dance and climbing after school clubs for one hour per week. This would help build his core strength and improve stamina.
• Support to enable B to use an iPad, and augmentative and assistive communication (AAC) software to help him communicate with his peers.
12. In late March 2019 the Council contacted Inclusively Downs, a service provider, about the emotional literacy support programme and the associated planning and monitoring hours. The Council told Mrs X about this. However, Inclusively Downs later said it could not provide this kind of programme.
13. In April 2019 as the emotional literacy programme had not been arranged, Mrs X contacted a specialist provider herself. She asked South East Psychology (SEP) and said she would pay directly and seek a refund from the Council. SEP agreed it could provide a programme, and if the funding was agreed, the Council would pay directly. Mrs X told the Council she had arranged this as it had failed to do so and pointed out it had not put into place the other provisions in paragraph 5.
14. The Council accepted that SEP would provide the emotional literacy programme in April and the programme of 10 sessions started in late April.
15. In May 2019 the Council asked SEP if it would “extend your planning and monitoring and to support B’s TA [teaching assistant] to continue to work with your programme during the time when you are not working with B.”
16. In June 2019 the Council agreed that SEP would provide a second set of 10 sessions in the autumn term
17. In July 2019 the Council says it contacted the school following a complaint from Mrs X regarding provision. The Council says its case officer went through section F of B’s EHCP with the school. The case officer was satisfied that all the provisions in the plan had been put in place.
18. In September 2019 the school carried out an annual review of B’s EHCP. Mrs X said that B was happy at the school and well supported. But she pointed out that B should receive support to use AAC on his iPad to communicate with his peers. She said that the provision set out in his EHCP described as an Independence Programme, was missing. This programme must be planned and monitored by a specialist teacher. She also said that the social skills intervention which should also be planned and monitored by a specialist teacher was missing.
19. Mrs X complained to the Council in October 2019 it had not put in place all the provisions in the EHCP. She said the Council failed to provide the 3 hours per term planning and monitoring of the social skills intervention and the independence programme. She said the school refused to allow B the climbing and dance after school classes. She also said the iPad he had as a communication tool was locked, and he had not been taught how to use it. As a result of these failings B was isolated from his peers, had not increased his independence and had left the school grounds because he was bored.
20. The Council responded to Mrs X’s complaint in October 2019. It said it had SEP provide a 10 week emotional literacy programme and had agreed a further block of 10 sessions. The Council said B had made some progress with his independence. It said he was completing familiar tasks in class without adult support. However, it said B was still working towards the outcome of travelling around the school site independently and the school needed to carry out a risk assessment to ensure his safety.
21. The Council said that the 3 hours per term planning and monitoring time for the social skills intervention and independence programme was not something B received directly but was time to prepare and develop these sessions. It said it had commissioned a provider, Inclusively Downs.
22. The Council said the climbing club was subject to teacher availability, was weather dependent and was also not open to B’s school year. It said the dance classes were only open to students of GCSE dance and were subject to an audition. The Council said it could refer B for support via a personal assistant or it could provide a personal budget so he could access these activities outside of school.
23. The Council said that the iPad and AAC provision was available to B. The speech and language therapist had noted B used the iPad and AAC to communicate. But it agreed B would need further support to enable him to use the device. It had referred B to its Assistive Technology Service for an assessment in November.
24. Mrs X complained further in November 2019. She noted the Council’s offer of a personal budget for climbing and dance. She accepted this, but said it was second best because the school should make the provision. She said the school did not encourage B’s independence and created social isolation because a teaching assistant took B everywhere. She said the Council had not put in place the 3 hours per term social skills intervention planning and monitoring by a specialist, and the 3 hours per term independence programme. She asked which specialists the Council had commissioned. Finally, she said the school had shown that it did not help B to use the AAC because it said it was disruptive.
25. The Council responded to Mrs X complaint in December 2019. It accepted that the independence programme had not been provided as quickly as it would have liked. But it said that the school had provided support and resources to foster B’s independence. It noted Mrs X wanted the school to allow B to move around the school. But due to an incident where he had left the grounds, the school could not allow this. However, the Council had asked the school to look at this again.
26. The Council also explained that the planning and monitoring hours were not received directly by B, but were for the specialist teachers from Inclusively Downs and SEP to plan, support, advise and monitor the teaching assistants who delivered the social skills or independence programme. The Council said that in relation to the social skills intervention, it had commissioned Inclusively Downs for 36 hours per annum for this support and a variety of other areas of B’s education including literacy and numeracy.
27. The Council recognised that B had not been able to access the climbing and dance after school clubs. But it said that it had little influence over the school particularly as the school had confirmed there were criteria for these clubs which B did not meet. The Council said it had arranged a personal budget for B so that he could access these activities outside of school.
28. Regarding the AAC provision, the Council said that B had an iPad which the school advised was accessible throughout the school day. The Council explained that there was delay by the therapist in referring B to the Council’s assistive technology service, but the school had chased this up. The school acknowledged there were issues regarding the iPad password, bit this was resolved and B was using the device regularly.
29. From November 2019 the Council’s assistive technology service assessed B and provided training and support for the school about B’s use of AAC.
30. In November 2019, Mrs X agreed to a Personal Budget to enable B to take part in climbing and dance activities
31. In December 2019 SEP completed a report and proposed social skills and independence interventions. SEP carried out training for school staff in February 2020. SEP started direct weekly 45 minute sessions with B in February 2020 covering social skills, independence and emotional literacy. However, in March 2020 the school closed due to the Covid 19 pandemic.
32. Mrs X says that SEP did provided some online sessions in the summer of 2020. But very little other support was provided.
33. In July 2020 the Council issued a final EHCP which named a specialist school as the type of school placement rather than a mainstream school. Mrs X appealed the Council’s final EHCP.
34. In response to our enquiries the Council accepts that some provision was late but this was not significant and did not place B at a disadvantage The Council said that:
• While the social skills intervention was provided late, and were not as SEP initially suggested, the school confirmed it was providing support with social skills sessions at unstructured times.
• The independence programme was late but the school increased B’s independence in class with work tasks. The Council recognised Mrs X’s frustrations regarding the navigating the school target not being met. But the school had completed a risk assessment which led to its decision that B could not be allowed to move fully independently around the school. The Council asked the school to keep this under review.
• The school and other professionals had noted that B was sometimes reluctant to use his iPad. The school sought support about this and while the referral to assistive technologies was not progressed as it should have been, staff attended training from November 2019.
• There was a misunderstanding regarding the delivery of the climbing and dance provision. But after consulting both the school and the dance group, the Council arranged a personal budget in November 2019.
• There was delay in putting the emotional literacy intervention in place but the Council agreed to Mrs X’s choice of provider and this started in April 2019.

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Analysis

35. I consider there was delay by the Council in ensuring that the provision was put in place. In my view this caused injustice to B and Mrs X. I consider the Council should have arranged the provision or a personal budget by mid March 2019.
36. However, it was not until May 2019 that some of the provision was put in place (emotional literacy sessions). I have seen evidence that 10, 45 minute emotional literacy sessions took place from May 2019. I have not seen evidence that a further 10 sessions took place as the Council states. The payment evidence the Council provided does not support this as it shows payments for 10 hours only. SEP itself does not state that it carried out further sessions. Therefore, between January 2019 and July 2020, B received only 7.5 hours of the emotional literacy programme, when I would have expected him to receive approximately 36 hours over 4 terms. This was fault.
37. Mrs X should not have had to contact and commission a provider (SEP), herself. This was fault. Mrs X was put to time and trouble in chasing up provision.
38. I note the Council says that the implementation of the social skills and independence programmes were ongoing at school. I agree that B was not without any provision in this respect. However, the planning and oversight by a specialist was not in place. This was fault.
39. From November 2019 SEP completed a report and said it would build on B’s independence skills. I have seen evidence in SEP’s own report that it carried out work regarding the social skills interventions and the independence programme from November 2019 until March 2020 when the Covid 19 crisis led to the closure of the school. I accept that SEP took over this role by November 2019. This meant that for approximately two terms the full 3 hours per term oversight for both social skills and an independence programme was not properly implemented. This was fault.
40. The Council has referred to Inclusively Downs providing planning and monitoring of the social skills intervention as part of 36 hours provision. But in my view that provision relates to numeracy and literacy. I have not seen evidence that Inclusively Downs provided planning and oversight of the social skills intervention.
41. The Council attempted to persuade the school to provide climbing and dance classes. However, when it became clear from the school that B did not meet the criteria, and the Council could not insist on the provision, I consider the Council should have acted more swiftly to enable the provision. If provision is not put in place, it is the Council’s responsibility to ensure this is remedied. This was fault.
42. The Council initially advised me it arranged a personal budget with Mrs X for climbing and dance lessons. But Mrs X says the Council has not paid and she has paid for some sessions herself. The Council then advised me that Mrs X did not agree to a personal budget. However, I have seen an email from Mrs X to the Council in November stating that she reluctantly agreed. The Council now recognises it did not progress this and it says that a member of staff, who may have discussed this with Mrs X has left.
43. No payments for a personal budget were made between November and March 2020 when the school closed. This was fault, as the Council failed to provide the personal budget it had offered. B was caused injustice because the physical activity to address his core strength was not provided. It is not certain how and when Mrs X would have been able to arrange classes, and when considering a remedy, I must take account of the lockdown period which meant these classes were not available.
44. With regard to AAC, the Council noted there were some difficulties in the referral process to the assistive technology service. However, I do not consider this was due to a fault by the Council.

Agreed action

45. I recommended that within 6 weeks of my decision the Council
• Apologises to Mrs X for failing to arrange a personal budget for B when she agreed to it in November 2019.
• Refunds Mrs X for the climbing or dance classes that she has paid for.
• Pays Mrs B £500 for its delay in addressing the issue regarding climbing and dance classes and in arranging a personal budget.
46. I recommended the Council should also within 6 weeks of my decision, make a payment of
• £150 to Mrs X for her time and trouble.
• £1000 to Mrs X for the delays in putting in place the emotional literacy programme, planning and monitoring of the social skills and independence programme set out in B’s EHCP.
47. The Council should also remind officers that where a school is unwilling or unable to implement provision as in this case, the Council must ensure this is addressed.
48. The Council has agreed to the recommendations I made.

Final decision

49. I find fault by the Council causing injustice. The Council has agreed a remedy. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman