Summary: Miss X complained the Council failed to provide the provision outlined in her daughter’s education health and care plan since August 2022. We find the Council at fault for failing to provide the provision outlined in the plan. The Council will apologise, carry out a review of the educational provision in place, pay for the loss of education and distress and take action to prevent reoccurrence.

The complaint

1. Miss X complained the Council has failed to provide the provision outlined in her daughter, C’s, Education Health and Care (EHC) plan since it was put in place in August 2022.
2. She says that because of the lack of provision her daughter has been unwilling to attend school and has been out of school for some time.

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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 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)
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. I have considered:
• The information provided by Miss X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Miss X and the organisation 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

Law and guidance

8. 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. The EHC plan 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.
9. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
10. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

11. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision should be suitable for the child’s age and abilities. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

12. C has autism and pathological demand avoidance. She has a EHC plan to assist her in school.
13. C stopped attending school she tried a phased return to school after Covid-19. She started to struggle to attend in the mornings and after a series of incidents in school it was decided she should have home learning put in place. This began in November 2021.
14. In September 2022 C was due to transition into key stage three. A review was carried out to identify an appropriate secondary school. A final EHC plan was issued naming a specialist school. Miss X appealed the decision at tribunal requesting Cognitive Behavioural Therapy (CBT) for C to help her into school. The Tribunal awarded this in June 2022.
15. The new EHC plan indicated that C required:
• 1:1 or small group support for social communication.
• Allocated time with a key worker to work on using strategies.
• Three one-hour sessions with a speech and language therapist.
• A social communication development programme.
• Differentiated learning to meet her needs.
• Weekly sessions on developing self-esteem.
• A CBT therapist to work with her weekly.
• An occupational therapist supported programme to develop fine motor skills and limb stability. Including a structured 20-minute therapy session three times per week.
16. The plan indicated that C would receive an education other than at school package until the transition to secondary school. This package involved two hours a week with a learning mentor with the intention of increasing to 10 hours and an emotional literacy support assistant once a week. It stated this would be reviewed every six weeks.
17. In mid-July the Council informed Miss X that it would be sourcing CBT over the summer.
18. A plan was devised for C to receive a slow introduction to the school whilst receiving support from the Council’s access to education team.
19. In September 2022 C started attending school. After two days she began refusing due to an incident at school.
20. In mid-September 2022 the Council held a child in need meeting for C. During the meeting it agreed that there needed to be a clear plan for her return to school which was likely to be over the term. It proposed that she should attend twice a week, starting with simply exploring the space and getting used to staff. It stated if this had not been successful it would carry out an emergency review.
21. Mental health services informed the Council that it could not provide CBT in late September 2022.
22. In late October 2022 the Council contacted the health service to seek advice on locating a trained therapist to provide CBT for C. The health service raised concerns about the EHC plan not having included a time limit of providing CBT and that weekly sessions would be difficult due to the capacity of services. It confirmed it could not provide a therapist as part of a core offer.
23. The Council also contacted therapist A, an NHS therapist, who responded in early November. They explained that they did not have any availability and children could not be added to a waiting list.
24. Miss X chased the Council in mid-November to find ask them to sort out the CBT. She provided the Council with a search tool to help it locate CBT therapists nationally. The Council stated it had looked on the national register. It explained that a local therapist would need to be located to help deliver the transition. It said the providers contacted had closed their lists to children and were not taking new referrals.

Findings

25. The Council had a duty to arrange the provision outlined in C’s EHC plan from the point it was agreed at tribunal in June 2022. This included the CBT provision outlined in section F. The Council accepts that the CBT is not in place at present.
26. The evidence suggests there is no clear process in place for arranging therapy provision when it is placed in section F. Although the Council says it has taken steps to locate a specialist, I am not persuaded it has taken reasonable steps.
27. Firstly, its enquiries appear to have only been to departments and people within the NHS rather than private therapists. Even after the NHS clarified that it would not provide therapy listed under section F. And Miss X requested for it to consider the national register of CBT therapists.
28. Further, it delayed taking action to locate a specialist as it did not act until late September 2022 when it contacted the mental health services. There was a further delay before it contacted a specialist in mid-November 2022. There is no evidence it has attempted to contact any other specialists to see if they can provide the service. The delay in trying to arrange a specialist is fault.
29. Between June 2022 and June 2023 C has missed out on the therapy provision that was required for her development. This is an injustice. Particularly, given this was during the transition between primary and secondary school.
30. Had the Council arranged the provision this may have provided C with the support which would have helped her back into school. I cannot fairly conclude that C has missed out on all her educational provision because of the Council’s failing. There is no certainty that had the CBT been arranged it would have been possible to get C into school. The Council’s failure to consider its duties to arrange EHC provision has left Miss X believing that things could have happened differently. This is an injustice to both C and Miss X.
31. The EHC plan also put in place other provision as outlined in paragraph 14. I have not seen any evidence that the Council carried out checks that this provision was in place in her two hours of alternative provision. We would expect the Council to have carried out a review to ensure the provision was in place given C had a new EHC plan in place. It’s failure to do so is fault.
32. I cannot be certain that C has been receiving all the support she is entitled to under her EHC plan because of the Council’s failure to review this. I appreciate that C has been on a reduced timetable, and this may have influenced what provision she would have received. The Council’s failure to carry out a review of the provision in place has caused uncertainty for Miss X and this is an injustice.

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Agreed action

33. Within one month of the final decision the Council will:
• Apologise to Miss X for the uncertainty caused by its failure to arrange CBT provision and check whether other EHC provisions were in place after a new EHC plan was agreed in June 2022.
• Pay Miss X £300 for the uncertainty caused.
• Pay Miss X £800, for the benefit of C, for the loss of provision up to June 2023.
34. Within two months of the final decision the Council will:
• Review the provision C is receiving and determine whether it meets the requirements of her EHC plan. Following the review, the Council should put in place sufficient provision if the current provision does not provide the support outline in the EHC plan.
• Make a commitment in writing to Miss X that it will continue to search for a CBT therapist. And pay her £100 a month, for every month the CBT was not set up from June 2023 until the CBT is in place. This money should be used for the benefit of C.
• Review its policy and procedure for arranging therapies listed in section F of an EHC plan and consider if there is a clear process in place for obtaining this provision.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. I have found fault leading to an injustice. The Council will take action to address the injustice and prevent reoccurrence.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman