Summary: Ms X complained the Council failed to ensure her child, C, received some of the provision specified in his Education, Health, and Care Plan. We found the Council was at fault when it failed to deliver some of the provision in C’s Plan. The Council also failed to appoint a Speech and Language Therapist and an Occupational Therapist in reasonable time. This caused delay in ensuring some of the provision was delivered. Ms X and C were caused the injustice of distress and frustration. Ms X was also put to the time and trouble of complaining. the Council has agreed to our recommended remedy for the injustice caused.

The complaint

1. Ms X complains the Council failed to ensure her child, who I will call C, received the provision named in various Education, Health, and Care Plans (EHCP) between the summer and autumn terms of 2021. Specifically, Ms X says C did not receive the specified Speech and Language Therapy (SALT) and Occupational Therapy (OT) as directed in the EHCPs from February 2020, June 2021, and October 2021.
2. Ms X says that as a result, C has missed necessary provision which has affected and delayed his education and caused him distress. Ms X also says this has caused her distress, frustration and put her to financial expense and time and trouble in making the complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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 this decision with Ofsted.

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How I considered this complaint

6. We corresponded with Ms X and made enquiries of the Council. I have read the information Ms X and the Council provided about the complaint
7. Ms X and the Council have commented on this draft decision. I have considered their responses before making a final decision.

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What I found

Education, Health, and Care Plan (EHCP)

8. A child with special educational needs may have an EHCP. This sets out the child’s needs and arrangements for meeting them.
9. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
10. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.
11. The Council is responsible for securing the specified special educational provision for the child. This means 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.
12. These duties are non-delegable. Other than for the period when the emergency measures under the Coronavirus Act 2020 were in place, a council cannot discharge its duty by showing it tried but failed to put the support in place.

Special Educational Needs and Disability (SEND) Code of Practice 0-25: Statutory Guidance for Organisations.

13. Section 9.194 says when a local authority proposes to amend an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and a notice providing details of the proposed amendments. It should inform the child’s parent they may ask for a meeting with the local authority to discuss the proposed changes.
14. Section 9.176 says the local authority must decide whether it proposes to keep the EHCP as it is or amend the plan and tell the child’s parent within 4 weeks of the review meeting. If the plan needs to be amended, the local authority should start the process of amendment without delay.

School Terms

15. The Council website says the relevant school terms in 2021 were:
• Summer Term – 19 April to 23 July 2021.
• There was a one-day bank holiday and a holiday between 31 May and 4 June 2021.
• Autumn Term – 6 September to 17 December 2021.
• There was a holiday between 25 to 29 October 2021.

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What happened

16. I have set out a summary of the key events below. It is not meant to show everything that happened.
17. C has a diagnosis of autism spectrum disorder (ASD) with significant pathological demand avoidance (PDA) symptoms.
18. C attends a mainstream school, however, this is in a different borough to where he lives.
19. The EHCP in place for most of the Summer Term 2021 was dated February 2020 and included:
• 18 individual occupational therapy sessions per year provided by an occupational therapist. These sessions should be provided on a basis of three blocks of six sessions per term, delivered weekly with a period of consolidation.
• All Sessions to be 30-40 minutes with C. The rest of the time spent training and supporting educational staff.
20. An Annual Review meeting took place in March 2021. It was decided C’s EHCP would need amending.
21. Ms X emailed the Council in April 2021. She asked when the Council would reply in writing about C’s annual review as four weeks had passed.
22. The Council emailed Ms X the following day to confirm it would amend C’s EHCP. It agreed to the request for a further six OT sessions. It also said it was currently considering C’s SALT.
23. The Council issued Ms X with C’s draft amended plan in May 2021. It also apologised to Ms X for not fully complying with the guidance set out in section 9.194 of the SEND code of practice.
24. The Council issued C’s final amended EHCP in June 2021. Section F of the plan specified:
• Six individual occupational therapy sessions in the summer 2020/21 term.
• All (OT) sessions to be school based.
• Sessions to last 30-40 minutes with C and the rest of the time spent supporting educational staff.
• At the end of the summer 2020/21 a review by OT to see whether C will need continuing therapy in the next academic year.
• A SALT programme developed by a qualified and experienced Speech and Language Therapist (SLT) with experience in social communication difficulties and anxiety with training for staff on his difficulties, with continuing advice and support.
• A consultative model of service delivery with a review session of 45-60 minutes. An added 45 minutes for SLT to liaise with staff and parents each half term by a qualified and experienced speech and language therapist with knowledge and experience of ASD and PDA.
• 3 x 1 hour training sessions by a qualified and experienced SLT with knowledge and experience in blank levels of questioning and an evidence based social communication programme.
25. The final amended EHCP also said that the SLT would need to give three to four hours yearly to reassess, report write and attend the annual review.
26. The Council received an email from C’s OT in July 2021 explaining that she did not have the capacity to support C going forward.
27. Ms X says the Council did not send her a copy of C’s final amended plan until July 2021.
28. C’s OT contacted Ms X in August 2021 and provided a report suggesting further amendments to C’s EHCP.
29. The Council emailed Ms X in September 2021 saying it would update and amend C’s EHCP in line with the OT report.
30. Ms X complained to the Council in September 2021. She said the Council had failed to ensure delivery of provision in line with C’s EHCP. Ms X said:
• C had not received any SALT.
• The Council had delayed a funding decision.
• C had not received the six sessions of OT in the summer term.
• The time assigned for C’s SLT was not enough.
• The SLT’s knowledge and experience of ASD and PDA was not sufficient.
• The Council had not amended C’s EHCP in line with the OT’s report.
• C’s provision for the autumn term had still not been commissioned due to unavailability of an occupational therapist.
31. Ms X also said extra funding had been discussed with the Council at C’s annual review in March 2021. She said the Council were aware it needed to specifically facilitate SALT and questioned why this was not in place in time.
32. The Council produced a further amended final EHCP for C in October 2021. The Council say Ms X agreed to this. This changed C’s OT provision as detailed below:
• Half Termly direct input from an OT for up to 45 minutes with C, OT, and teaching assistant (TA).
• Indirect OT support for staff every three weeks during term time for up to 60 minutes. This to reflect C’s difficulties at times to engage but not when OT is there.
• Half termly liaison with parents to ensure OT can support home with strategies.
• C will need daily support from an adult trained by OT to undertake a programme of indirect OT across school day.
33. The Council replied to Ms X’s complaint in October 2021 and said it had reviewed C’s case in detail and it:
• Had anticipated C’s school would be able to facilitate the provision.
• Had been unable to support the commissioned delivery as C attended an out of borough school.
• Had now sought provision from an independent SLT.
• Had now sourced an independent occupational therapist.
• Worked as fast as it could.
• Secured funding in May 2021 but could not determine how many sessions of OT C had received until August 2021.
• Had commissioned C’s new OT to deliver an additional session to make up for the missed session of the summer term.
34. Ms X complained to the Ombudsman in October 2021.
35. As part of my enquiries, I asked the Council to account for any missed or delayed provision. It replied in March 2022 and said it had worked to source a new OT as soon as possible and that C had received five out of six OT sessions during the summer term.
36. The Council also provided emails and notes which show it did not appoint a new OT until October 2021.
37. The notes also say that:
• An online meeting took place between the new OT, Ms X, and the school in November 2021.
• Staff had undergone training.
• Staff were trained in PDA in September 2021.
• A scheduled OT session could not go ahead in November due to C self-isolating.
• The OT delivered one session with C in November 2021 (Autumn term) and a further two sessions between January and March 2022.
38. The Council also provided emails and notes about C’s SALT provision. The emails show the Council started the process to commission a SLT in late September 2021. The notes show it appointed an independent SLT in October 2021. In response to my enquiries the Council’s notes also say:
• C’s SALT was provided by his school in both the summer term and in the autumn term (November 2021).
• The Independent SLT completed a one-day full assessment and report in December 2021.
• Half-day follow up and discussions with teachers about SALT took place in January 2022.
• The independent SLT tried to complete a session with C in November 2021, however, he was self-isolating.
• C completed a half day SALT session in January 2022.
39. The Council’s emails say C’s SLT had worked with him for one and a half days by February 2022.

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Analysis

40. The Council recognised and apologised to Ms X that it failed to follow the statutory guidance as set out in the SEND Code of Practice after C’s annual review in March 2021. The Council should have notified Ms X within four weeks of the annual review meeting whether it proposed to amend C’s EHCP. We would expect it to do this, and this was fault. This put Ms X to the time and trouble of chasing the Council. However, I am satisfied the Council has remedied the injustice by apologising.
41. The Council’s notes show it failed to ensure delivery of some of the provision specified in C’s EHCP during the summer and autumn terms. This was fault. I accept the Council tried to appoint various SLTs without success, however, the notes show it did not start the process until late September 2021, already one month into the autumn term. We would expect C’s SALT provision to have been in place when it issued the final amended EHCP in June 2021. I recognise the Council says C was seen by his in-school SLT in the summer term and autumn term and that his new SLT tried to deliver a session in November 2021. However, the delay in appointing an SLT meant C was without some provision for the last month of the summer term and most of the autumn term causing him the injustice of distress and lost entitlement.
42. I also acknowledge that C’s OT provision changed in the autumn term when the Council issued a further final amended EHCP in October 2021. C’s OT told the Council in July 2021 she no longer had capacity to support him. However, the Council did not appoint a new OT until October 2021. Having had notice just before the summer holiday that C’s OT would not continue, we would have expected the Council to have OT provision in place at the beginning of the autumn term. It did not and this was fault. I accept the OT tried to deliver a session with C in November, however, during most of the autumn term C was unable to access some of his specified OT provision as stated in his EHCP.
43. The Council also agreed that it failed to deliver one session of C’s OT during the summer term. This was fault. The Council says it commissioned C’s new OT to deliver the missed session. However, the Council has provided no evidence it delivered this session during the autumn term 2021.
44. The failure caused Ms X the injustice of distress and frustration and put her to the time and trouble of complaining. I have suggested a remedy for the injustice caused to both C and Ms X.

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Agreed action

45. To remedy the injustice caused to Ms X the Council has agreed by 15 August 2022 to:

• Apologise to Ms X and C for failing to provide some provision causing distress, frustration, and delay.
• Pay Ms X £600 for the distress, frustration and delay caused by failing to provide some provision as specified in C’s EHCP.
• Pay Miss X a further £100 for putting her to the time and trouble of complaining.

• Share this decision with staff involved with SEN and drafting EHCPs reminding them of the need to begin commissioning services as soon as possible.

46. The Council has agreed by 10 October 2022 to:

• Contact Ms X and use its best endeavours to provide the outstanding occupational therapy session for C.

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Final decision

47. I find the Council was at fault for failure to ensure Ms X’s son, C received his full provision as set out in his EHCP. The Council was also at fault for the delay in appointing a suitable SLT and OT. The Council has agreed to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman