Summary: Mr X complained that the Council failed to provide the provision set out in his son’s education, health and care plan. We found the Council was at fault in failing to provide one-to-one support between 15 March and 10 May 2021. However, this did not cause an injustice because the child moved to a special school on 15 March 2021 and the Tribunal later found he did not need 1:1 support at the special school. We find the Council provided the remaining provision set out in the plan.

The complaint

1. Mr X complains that the Council:
• failed to provide 1:1 support for his son, C, as set out in his education, health and care plan (EHCP) resulting in him suffering an injury at school in February 2021;
• failed to provide 1:1 support for C, as set out in his EHCP from March 2021 when he moved to a new school;
• failed to provide speech and language therapy (SALT), occupational therapy (OT) and psychology support as set out in C’s EHCP from March 2021;
• failed to ensure that other provision set out in section F of the EHCP was provided by the school from March 2021; and
• issued a revised EHCP in May 2021 removing C’s 1:1 support without completing an assessment.

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What I have and have not investigated

2. I have not investigated Mr X’s complaint that the Council issued a revised EHCP in May 2021 and removed 1:1 support without completing an assessment. Mr X has exercised his right to appeal to the SEND Tribunal about the content of the revised EHCP. So, this complaint is outside our jurisdiction.
3. I have exercised discretion to investigate Mr X’s complaints from March 2021 when C started at his new school. I have not investigated events which took place prior to this as they are late. Mr X could have complained about these matters sooner.
4. I have investigated Mr X’s complaint that the Council failed to provide 1:1 support for C between 15 March 2021 and 10 May 2021. I have not investigated any failure to provide 1:1 support after the right of appeal arose in May 2021 because this issue was considered by the Tribunal.
5. I have also investigated Mr X’s complaint that the Council failed to secure SALT, OT and psychology support for C as set out in his EHCP between 15 March 2021 and 10 May 2021 when the new EHCP was issued. I have not investigated this issue after the right of appeal arose in May 2021 because these issues were considered by the Tribunal, including the amount of SALT and OT that should be provided and its format.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. 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)
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

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

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What I found

Legal and administrative background

13. A child with special educational needs may have an Education, Health and Care (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
14. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
15. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.

Key facts

16. Mr X’s son, C, was diagnosed with autism spectrum disorder with high needs in 2018. The Council issued a final EHCP in January 2020 following a Tribunal hearing. The EHCP set out the provision C required including 1:1 support, SALT and OT.
17. C was attending a mainstream primary school but, following an incident in February 2021 during which he suffered an injury, Mr X transferred him to a specialist school. He started there on 15 March 2021.
18. A few days before C started at his new school, the Council issued a revised draft EHCP removing 1:1 support. Mr X objected but the Council was of the view that 1:1 support was no longer required now that C was at a specialist school. It issued a final EHCP on 11 May 2021. Mr X appealed to the Tribunal about C’s special educational needs as set out in the plan and the special educational provision in the plan on 30 July 2021.
19. The Tribunal considered the case at a hearing in November 2022. It decided C did not need 1:1 support in his current school. Mr X has appealed the Tribunal’s decision to the Upper Tribunal.

Analysis

Failure to provide 1:1 support

20. The EHCP issued in January 2020 says that C requires full-time support from a teaching assistant for all classroom activities and that, during breaks and lunchtimes, he should be supervised closely by an appropriate adult to ensure his safety and encourage him to play alongside other children and interact with them.
21. This EHCP remained in force until the new EHCP was issued on 11 May 2021. So, the Council was required to secure the provision set out in that plan even though C had moved to a specialist school. Once the Council issued a new final plan on 11 May 2021 Mr X had a right of appeal against the lack of 1:1 support. So, I am not investigating any alleged lack of support after that date.
22. I find the Council was at fault in failing to provide the 1:1 support specified in C’s EHCP between 15 March and 10 May 2021. However, the Tribunal later decided C did not need full time 1:1 support at the specialist school. It accepted he may have needed this additional support whilst he was at a mainstream school but said that, once he moved to the specialist school, this was no longer necessary because of several factors including: class size; staffing ratios; and staff training and experience levels. Given the Tribunal’s decision, I find the Council’s failure to secure 1:1 provision for C between 15 March and 10 May 2021 did not cause him an injustice because he did not need it.

Failure to provide SALT and OT

23. Mr X says C did not receive the SALT and OT set out in the EHCP issued in January 2020. This EHCP was still in force while the new one was being contested. However, it is clear from the Tribunal’s order that SALT & OT formed a specific part of the appeal and this included the amount that should be provided and its format. So, I have only investigated this issue up until the appeal right arose on 10 May 2021.
24. The January 2020 EHCP says C should receive 35 minutes per term in Reception Year from a suitably qualified speech and language therapist or speech and language therapy assistant. Each session would consist of 20 minutes of direct intervention and 15 minutes of indirect therapy. The direct sessions may be with C individually and/or in small groups.
25. In response to my enquiries, the Council explained that C moved to his new school two weeks before the end of the spring term. He was due to receive two direct sessions with the mainstream therapist but his file was transferred to the special school SALT team. The school re-opened after the Easter holidays on 19 April 2021. The SALT team usually allow a six-week period for a child to settle into a new specialist setting before commencing therapy. Between 17 June and 21 July 2021 C received SALT sessions, including the two missed sessions.
26. Having considered the evidence provided, I am satisfied C received the SALT provision he was entitled to in his EHCP. He did not receive this provision between March and May 2021 because of the move to a new school. But he did receive all the provision set out in his EHCP before the end of the academic year and this approach allowed him to settle into his new school before receiving the therapy.
27. As regards OT, the EHCP states C would receive two sessions of 45 minutes from a suitably qualified OT in the first term at primary school. These sessions would consist of 20 minutes direct therapy and 25 minutes indirect therapy. In the second term C would receive four sessions of 45 minutes. His needs would be reviewed towards the end of the second term and, if there was a need for further OT provision for specific goals, it would be provided in accordance with the identified need. If the therapist identified no need for further provision, he would be discharged from the therapy service.
28. C was discharged from OT on 16 March 2021, having received the therapy specified in this EHCP between Autumn 2020 and March 2021. The therapy provider sent Mr X a copy of the discharge notice. Accordingly, C did not miss out on any OT provision between 15 March and 10 May 2021.

Failure to provide psychology support

29. Mr X says C has had no psychologist intervention and support since moving to his new school.
30. The January 2020 EHCP does not specify a requirement for psychology support. It says the school “may seek further advice from the Educational Psychology Service if required”. It was a matter for the school to decide whether it was necessary to request such advice. I do not therefore uphold this aspect of Mr X’s complaint.

Failure to ensure other provision in the EHCP was provided

31. Mr X says the Council failed to ensure that the school provided the following as set out in C’s EHCP:
1. in relation to Language and communication skills, the EHCP says adults will be “available to respond promptly to [C’s] requests throughout the day and to monitor and record his progress”. It also states that indirect sessions will “involve liaising with [C’s] parents regarding current targets and strategies being used and provide advice on supporting communication at home”.

The Council has provided a copy of a report prepared by the school for the period 1 April 21 to 4 July 2021 which set out targets, what provision was made to achieve those targets and next steps. So, the evidence is that the school was monitoring and recording C’s progress and that it kept his parents informed by sending them a copy of the report . In addition, the school and the therapy providers met with Mr X to discuss progress and allow him to raise any concerns.

I am also satisfied from the information provided by the Council that the SALT team provided information to Mr X on the current targets and strategies being used and with advice on supporting communication at home. This included the following: on 12 April 2021 the SALT team sent Mr X an email with information on training provided in the spring term; a video meeting was scheduled with the SALT in April 2021 but Mr X had to cancel this because he was unwell; on 7 May 2021 the SALT sent Mr X a copy of the case notes; and Mr and Mrs X were invited to attend a SALT video workshop on “developing communication via intensive interaction” but were unable to attend.

2. In relation to Motor and Self-help skills, the EHCP says indirect OT sessions will “help parents/carers to understand the interventions being provided, and explain how they will be delivered, and how the parents/carers can also support [C’s] development”.

This forms part of the OT provision. As explained above, C was discharged from the OT team on 16 March 2021 and so was not due to receive this provision. I therefore find no fault in this regard.

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Final decision

32. I find the Council was at fault in that it failed to provide 1:1 support for C between 15 March and 10 May 2021. However, this did not cause C an injustice.
33. I do not uphold the remainder of Mr X’s complaints.
34. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman